我们需要商法典吗?

Is a Commercial Code Necessary?

中国民法典之制定正在紧锣密鼓地进行中,体系上与德国民法典有诸多雷同之处。但德国民法采取民商分立原则,在民法典之外尚有商法典,后者尚且早于前者问世。此一现象,固有其历史背景,然时至今日,民商分立之传统是否仍值得效法,值得探究。德国商法典的两大规范对象为商事活动主体(商人及商事组织)及商事行为。商事组织方面,由于大量有关公司形态之特别法的颁布,商法典的重要性已经大为降低。至于商事行为方面,其多属债法之特别法,部分规定与民法重叠,部分规定甚至与民法相抵触。商事行为中关于行纪、运送、承揽运送及寄托之规定,并非不能仿效瑞士直接规定在民法之中。2 0 0 2年德国债法现代化后,商法典部分规定也随之调整。作者认为,商法规定逐渐融合于民法之中,将是大势所趋。

The codification work of the China Civil Code is in full swing. The system of China Civil Code is similar to the German Civil Code in many ways, except the German Civil Code and the German Commercial Code are two separate systems, and the latter is earlier promulgated. The segregation of civil and commercial codes is due to specific historical background, which is nowadays however worth more investigation to determine whether or not to keep the tradition. The two regulatory objects in the German Commercial Codes are commercial subject, including businessman and business organization, and commercial conduct. Due to the promulgation of plenty of special laws regarding the commercial organization, the German Commercial Code on commercial organization has less importance than it used to be. Since the German Commercial Code is the special law to the German Civil Code, some com- mercial conduct regulations in the German Commercial Code overlap with such regulations in the German Civil Code and some are even against it. Learning from Swiss, commercial con- ducts, such as commission agency, carriage, forwarding agency and deposit, can be regulated in the Civil Code. Upon the modernization of the German Obligation Law, German Commercial Law has partially amended accordingly. The author of this article believes German commercial regulations being integrated into German Civil Code is the future trend.