商事代理制度的系统构建

The Systematic Construction of Commercial Agency

商事代理制度在实现商事活动各方当事人的互惠、扩展商主体的意思自治空间、促进交易效率并维护交易安全等方面发挥着积极作用。我国的立法模式,是以"区别论"为理论基础,在立法指导思想上倾向于认为商事代理是民事代理在商事领域的特别体现,在法律中未能充分体现商事代理制度的特点,易导致法律内部出现冲突,也越来越难以适应迅速发展的商事实践。这种情况下应从理论分析入手,注重于商事代理自身的优点,博采各国代理制度立法之长,以架构我国商事代理制度。

Commercial agency system is playing an active role in many aspect, such as to achieve mutually benefit for the parties in business activities, to expand the autonomy of will for the business subject, to promote the efficiency of the transaction and to maintain security, to accelerate the market economy and to promote economic integration. The law system in China has inherited the civil law legislation mode and is based on ＂ The Theory of Difference＂. The guiding ideology trends to believe that the commercial agency is a special manifestation of civil agency in the area of commercialization. Therefore, the law in China fails to reflect the characteristics of commercial agency. Contradictions appear within the law, and it becomes more and more difficult to adapt to the rapid develop- ment of commercial agency practice. So it has great significance to perfect the commercial agency system in China.