论近代中国公司立法中商会的角色与作为

The Role and Action of the Chamber of Commerce in Company Law-making in Modern China

在近代中国,商会扮演着工商制度安排和变迁的参与者角色,具有制度供给和需求双重身份的性质和特征。商会参与公司立法取决于内外因的交互作用:商会本身所具有的参与法制现代化所必需的基本素质和能力是其参与立法的根本前提;而政府对商会的职能定位是影响商会参与程度和效果的重要因素。商会通过自拟商法活动和其他参与形式,积极推动公司立法的健全完善,从而改变了中国传统的单一主体(政府)立法模式。国家力量与民间力量的交互作用,决定了近代中国公司制度移植具有以强制性为主、诱致性为辅的制度变迁特质。

In modern China, the chamber of commerce as both the system provider and demander played the role of a participant in the making and evolving of the system of industry and business. The reason why the chamber of commerce was able to participate in lawmaking and even became an important impetus was due to the interaction of external and internal factors. The internal factors are the qualities possessed by the chamber of commerce itself, which are prerequisite for its participation in lawmaking. While its role defined by the government, as the external factor, is also important. The chamber of commerce actively propelled the company law into perfection through the lawmaking practice by themselves and otherwise. Their participation changed the single-subject（government）mode of traditional Chinese lawmaking. The interaction of nongovernmental and governmental forces determined the characteristics of the transplant of company law into modern China： compelling changes by the government are the principal, while causative ones by the nongovernmental forces supplementary.