我国商法中加重责任理念的司法应用及立法构想

Judicial Application and Legislative Conception of the Idea of Enhanced Obligation in Chinese Commercial Law

在我国商法学界及广大商事审判机构,已普遍认识到确立与适用商法理念的必要性,但对其内涵与外延却未形成基本共识。在此问题上,加重责任理念作为基本的商法理念,其司法应用及立法构想的研究具有重要意义。在许多民商事法律纠纷的法律适用过程中,是否应用加重责任理念将直接影响法律适用效果。这些典型问题包括:表见代理判断标准;违约金条款法律效力;虚假广告代言人的法律责任;违反安全保障义务的侵权责任。在双方均为经营者的商事法律关系中的法律适用中,加重责任理念同样具有重要意义。为确立加重责任理念,应在我国民商法中确立经营者及经营行为概念。由此,即使不实现加重责任理念的立法化,也同样能够实现其应有价值。

In the Chinese commercial law circle and many commercial tribunals, people have general- ly recognized the necessity of establishing and applying the commercial law idea, but a basic consensus has yet been achieved about its connotation and extension. To address this issue, enhanced obligation should be accepted as one of the basic ideas of commercial law, and thus the research on its judicial application and legislative conception is of great significance. In dealing with many civil and commer- cial legal disputes, whether the idea of enhanced obligation is applied will directly affect the effect of law application. Cases of this type usually involve ： the judgment criteria of apparent agency; the legal effect of liquidated damages clause ; the legal liabilities of false advertisement publishers ; and the tort liability of violating the duty of protecting security. In handling the cases concerning commercial legal relations in which both sides are operators, the idea of enhanced obligation is also of great signifi-cance. In order to establish the idea of the enhanced obligation, the concepts of operator and operating behavior should be incorporated into Chinese civil and commercial law. Thus, even if the legislation of enhanced obligation fails to obtain, its intrinsic value can also be proved.