论民法的商法化与商法的民法化——兼谈我国民法典编纂的基本理念和思路

On Commercial Law of Civil Law and Civil Law of Commercial Law--Concurrent Discussion About the Basic Ideal and of the Thinking of Codification of Our Civil Code

传统的民商分立和民商合一都有其历史的局限性,现代各国都在根据自己的国情对传统的民商立法模式进行适当调整。在民商关系的处理上我们应当充分借鉴其他国家的立法经验。我国民法典制定的基本思路是:在对传统私法做成功的现代转化的前提下,制定一部民商混合的法典,即在正确界定和承认民法和商法差别的基础上,以商法编的方式对民商法进行统一立法。

The traditional view of unifying and enacting separately civil law and commercial law has its historical limitations. Nowadays, all of the countries are adapting their own traditional legislative mode of civil law and commercial law properly on the basis of national conditions. We should fully drawing on the legislative experience of other countries to deal with the relationship between civil law and commercial law. Our basic thinking to enact Civil Code is: to enact a code mixed with civil law and commercial law with the premise of the successful and modern transformation from the traditional private law, that is to say, or to unify the enactment of civil and commercial law with the volume of commercial law on the basis of defining and admitting the differences between civil law and commercial law correctly.