《民法总则》对商事关系的包容性及表现——兼论决议行为立法问题

Inclusiveness and performance of commercial relations in The Civil Law: Also on legislation of resolution behavior

《民法总则》的内容设计该如何体现对商事关系的包容性,将是民法典编纂绕不过去的重大疑题。对此,在理论层面,应彻底否弃民、商立法体例之争。在内容上,应注重立法的体系化和科学化。在方法上,应以《民法通则》为基础,统合所有民商事法律关系。在明确了这三个前置性要求后,以理论和实务颇受争议的决议行为著例,就其在《民法总则》中的体系位置、制度安排问题做了进一步的探究,并尝试从中总结出《民法总则》包容商事关系的要点和方法。

HowThe Civil Lawdesigns its contents to reflect its inclusiveness of commercial relations will be a great problem that no compilation of civil laws can go around. Therefore, in terms of theory, the dispute between civil legislation and business legislation should be completely abandoned. In terms of content, attention should be paid to the systematic and scientific legislation. And in terms of method, it should be based onTheGeneral Principles of the Civil Law and should integrate all civil and commercial legal relations. After clarifying such three preliminary requirements, the present essay, by taking the legislation of resolution behavior as an example which has been a heated controversy both in theory and practice, explores further its position inTheGeneral Principles of the Civil Law and institutional arrangements, and finally attempts to summarize the key points and methods of inclusiveness of commercial relations in TheGeneral Principles of the Civil Law.