对我国“商法特征”若干界说的实证分析思考

Empirical Analyses and Reflection on Characterization of the Term Commercial Law in China

由于商法调整对象之复杂、涵摄范围之宽泛且发展之迅速,我国商法教科书关于"商法特征"的界说颇具多样性,如称"商法具有营利性"、"商法具有技术性"、"商法具有整体性"、"商法具有发展性"和"商法具有变动性"等,似多欠准确。本文试图对"商法特征"若干界说进行理论分析和逻辑梳理,重点讨论了商法具有"营利性"、"技术性"、"兼容性"、"国际性"等表述的科学性问题,并从商法目的、商法规范、理论认识的一般方法、与相近学科的比较分析、取本舍末和法律语言等角度,就商法特征的界定方法问题提出了几点建议。

There are various characterizations textbooks for the reason that Commercial Law conceming the term Commercial Law in Chinese regulates and covers a variety of complex objects and it has experienced rapid development in those aspects mentioned above. Certain scholars advocate that the Commercial Law is of a technical nature as well as the characteristics of profit-orientation, wholeness, expansibility and variability, but it can not be denied that those characterizations lack of accuracy to some extent. In this article, the authors attempt to analyze those characterizations from theoretical and logic perspective, focusing on whether it is appropriate to characterize the term Com- mercial Law as profit-orientation, compatibility and being of a technical and international nature. Furthermore, the authors propose ways on how to characterize the term Commercial Law by means of probing purposes and norms of Commercial Law, adopting general methods of theoretical research, analyzing similar disciplines from a comparative perspective, selecting the essential while discarding those of minor importance, and also in a legal linguistics view.