摘要
在我国"民商不分的混合立法模式"下,由混合于民法规范的商法规范与单行商法构成的商法规范体系存在着明显缺陷。为克服我国现行商法体系缺陷,应推动我国总纲性商法规范的立法化,实现民商区分的立法要求。在具体立法形式上,目前最现实的方案是制定《商法通则》,但不排除制定《商法典》的可能性。所谓民商区分,就是要对民事关系和商事关系区分对待,分别适用不同法律或者根据不同法律理念适用相同法律规范。因此,民商区分的关键问题就在于确定民事关系与商事关系的判断标准。在民商分立国家的商法典中,是以商人身份作为适用商法的依据,而商人身份又涉及商行为的判断问题。易言之,商人与商行为既是商法的核心范畴,也是确定商事关系的判断标准。但我国总纲性商法规范的核心范畴可确定为经营者与经营行为,并将其确定为民商区分的判断标准。至于营业制度,则不必纳入基本商法基本范畴,而将其作为总纲性商法规范的重要内容即可。
Under the ＂mixed legislative mode that does not distinguish between com- mercial law and civil law＂ in China, there are obvious defects in the commercial law system, which is made up of commercial law norms mixed in civil law norms and separate commercial laws. To remedy these defects, China should promote the adoption of the general principles of commercial law and realize the separation of commercial law from civil law. As for the concrete form of legislation, currently the most realistic plan is to adopt the General Principles of Com- mercial Law, while not ruling out the possibility of adopting the Commercial Code. Separation of commercial law from civil law means to treat differently and apply different laws, or the same le- gal norms according to different legal ideas, to civil relations and commercial relations. Therefore, the key to the separation of commercial from civil law is to establish different criteria for the determination of civil relations and commercial relations. In countries that distinguish between civil and commercial law, the commercial code takes the merchant＇ s identity as the basis of application of commercial law norms, and the merchant＇ s identity involves the determination of commercial act. In other words, merchant and commercial act are at the core of commercial law and serve as the criteria for the determination of commercial relations. However, China can identify business operators and business operation as the core of ＂General Principles of Commercial Law＂ as well as the criteria for the determination of commercial law relations. As for the system of business operation, it can be regarded not as a basic content, but only as an important content, of General Principles of Commercial Law.
出处
《环球法律评论》
CSSCI
北大核心
2016年第6期135-143,共9页
Global Law Review
基金
国家社科基金一般项目"公司章程防御性条款法律效力研究"(14BFX077)的研究成果
关键词
总纲性商法规范
民商区分
经营者
经营行为
营业制度
Under the ＂mixed legislative mode that does not distinguish between com- mercial law and civil law＂ in China, there are obvious defects in the commercial law system, which is made up of commercial law norms mixed in civil law norms and separate commercial laws. To remedy these defects, China should promote the adoption of the general principles of commercial law and realize the separation of commercial law from civil law. As for the concrete form of legislation, currently the most realistic plan is to adopt the General Principles of Com- mercial Law, while not ruling out the possibility of adopting the Commercial Code. Separation of commercial law from civil law means to treat differently and apply different laws, or the same le- gal norms according to different legal ideas, to civil relations and commercial relations. Therefore, the key to the separation of commercial from civil law is to establish different criteria for the determination of civil relations and commercial relations. In countries that distinguish between civil and commercial law, the commercial code takes the merchant＇ s identity as the basis of application of commercial law norms, and the merchant＇ s identity involves the determination of commercial act. In other words, merchant and commercial act are at the core of commercial law and serve as the criteria for the determination of commercial relations. However, China can identify business operators and business operation as the core of ＂General Principles of Commercial Law＂ as well as the criteria for the determination of commercial law relations. As for the system of business operation, it can be regarded not as a basic content, but only as an important content, of General Principles of Commercial Law.
