商法公法化属性的法理辨析

Analysis of the Nature of Public Rules in the Commercial Law

随着法律的逐渐完善,商法规范中引入了公法性质的法律规范。通过从市场经济的角度分析民法、商法、经济法三者的序列关系,从历史的角度分析美国私法领域中商法公法化的社会原因,以体系化的学理视角分析私法公法化环境下商法公法化的实质内涵,可以看出商法的私法属性是无法动摇的,商法的公法化是私法领域“再市场化”的立法体现,是商事活动的自我规制与国家经济行政干预规则相统一的技术措施,反映了社会发展的法律工具主义的需求。

With the law becoming more and more perfect, .the lawful criterion of some property of public law has been graduallY introduced into the commercial law. Based on the analysis of the social reasons for the public law of the commercial law, the author comes to the conclusion that the public law of commercial law is a change of the technical measures about economic legislation by the nation and that the property of private law of the commercial law is indestructible. Through the analysis and discrimination of the attributes of the economic law, it is concluded that the rules of public law of the commercial law is the compulsory behavioral criterion to regulate the commercial activities in the field of private law, the technical measure which unifies the Self-regulation of the commercial activities and the exterior administrative, economic regulations of the nation.