企业的商法意义及“企业进入商法”的新趋势

Enterprises in Business Law and the New Trend of “Enterprises Entering Business Law”

目前,有些国家和地区已废弃了传统商法典,转而制定了企业法典,降低乃至废弃了"商人"和"商行为"在传统商法中的支配地位。新型商法体系冲击了传统商法的理论基础。在我国,部分商法学者注意到"商法企业法化"的现象,主张应在"企业"的基础上整合现有的商法规范和体系。然而,对于境外商法上的"企业",多数国内学者存在误解,主要是忽视了主体性企业和客体性企业之间的差异,从而未能准确把握"商法企业法化"的本质。我国现有商法未采用"商人"和"商行为"的概念,商法学术界却坚持将"商人"和"商行为"做为商法基础概念,这使得我国商法理论基础和发展方向不很明确。应该在厘清相关法律术语含义的前提下,采用"企业"或"主体性企业"以及对应的其他范畴,这样可以发展出适合我国国情的新型商法模式。

Currently, some countries and regions have abandoned the traditional business code and made the code of enterprises instead, mitigating and even abandoning the dominance of ＂businessman＂ and ＂business behav- ior＂ in traditional business law. New business law system challenges the theoretical foundation of traditional busi- ness law. In china, some business law scholars have noted the phenomenon of ＂making business law transforming into enterprise law＂ and advocate that the existing business law and system should be integrated on the basis of en- terprises regarding to the increasing importance of enterprise in commercial law. However, most Chinese scholars have misunderstanding of enterprises in foreign business law, a main reason for which is that the differences between subjective enterprises are ignored, and thus the essence of ＂making business law transforming into enterprise law＂ cannot be understood correctly. Although the concepts of ＂businessman＂ and ＂business behavior＂ are not adopted in the existing business law in China, the academy field of business law insists on taking ＂businessman＂ and ＂busi- ness behavior＂ as the basic concepts of business law. This phenomenon makes the theoretical foundation and devel- opment direction of business law quite unclear. ＂Enterprise＂ or ＂subjective enterprise＂ and the other corresponding domain should be adopted on the premise of clarifying the definition of the relevant legal terms so as to develop a new business law pattern according to China＇s national circumstances.