论和谐商法

On the Harmonious Commercial Laws

在当代中国,由于政治哲学已由斗争哲学转向和谐哲学,法治观念亦由"以法治国"转向"良法善治",商法应以和谐哲学为基础构建和谐商法。事实上,自20世纪50年代以来,法律的国家强制性遭遇了强烈的挑战,法律的强制力逐渐"软化",这为以软商法为代表的和谐商法的提出提供了法理学支持。从商法的历史来看,和谐一直是商法的文化传统,特别是软商法的文化传统。同时,和谐也一直是软商法的终极价值,软商法的秩序、正义、效率及自由价值均以和谐作为基础。不过,对构建和谐商法来说,适度的国家强制也必不可少,只有软硬商法结合才能构建中国特色的社会主义和谐商法。

In modem China, it is noted that the political philosophy has transformed from conflict theory to philosophy of harmony, and accordingly, legal jurisprudence has converted from ＂ruling of law＂ to ＂benevolent ruling of good law＂. Therefore, the harmonious commercial laws should be established on the basis of philosophy of harmony. In fact, since 1950s, the national compulsion has confronted severe challenges and has gradually been softened, which provides jurisprudential grounds for the harmonious commercial laws duo to the soft law nature. The history tells that harmony is always the cultural tradition of commercial laws, particu- larly of soft commercial laws. Meanwhile, harmony is the ultimate value of soft commercial laws, and other values of order, justice, efficiency and freedom are based on harmony. It is proposed that proper national compulsion is still necessary and only by combination of hard and soft laws can the socialist harmonious commercial laws with China＇s characteristic be well established.