民法商法化背景下遗产管理制度构建的价值选择

The Commercial Law Trend of Civil Law in the Codification of Civil Code

伴随现代社会与法制的发展,民法商法化的趋势日益凸显。作为对现实的回应,已通过的《民法总则》已充分体现了民法与商法的融合,民法商法化主要表现为民法对商法内容、原则或规则的吸收与借鉴。包括遗产管理制度在内的婚姻家庭法对人本的关注和思考与商事法律制度的内涵有着深刻差异,其中对遗产管理制度构建的争议更加充分展现了民法制度与商法理念的碰撞。遗产管理与企业清算本质迥异,商事企业清算不能替代遗产管理制度,应当在回归民法本质价值的基础上,适度借鉴信托思维。

With the development of modern society and legal system, the commercial law trend of civil law becomes more and more prominent. As a response to the reality,it is necessary to consider the relationship between civil law and commercial law at the critical historical period of the codification of civil code. The commercial law trend of civil law is mainly manifested in the absorption and reference of the contents, principles and rules of commercial law in civil law, which is the essential step for codifying a relatively perfect civil code. The attention and reflection that marriage, family and inheritance law pays to humanism is profoundly different from the connotation of commercial law system. The controversy on the construction of heritage management system fully shows the conflicts between civil law system and commercial law ideas. In this paper, the differences between heritage management and enterprise liquidation were clarified to make choice of value based on the essence of civil law. At the same time, appropriately referring to the thinking of trust is conducive to straightening out key issues and re-examining the boundary of the commercial law trend of civil law.