民法典编纂背景下商事规则的识别点

The Identifying Element of Special Commercial Law Provisions in the Future PRC Civil Code

在编纂中国民法典的背景下,如在民法典中规定商行为特别规则,在规则构成要件层面上,应设置商事规则的识别点。基于商法以营业为核心,借鉴比较法上的最新发展趋势,就此应采主观主义进路。应以经营者作为商事规则的识别点。不同于欧陆的传统做法,应将自由职业者如律师事务所等纳入经营者概念,并适用商事特别规则。

When the special rules regarding commercial activities are to be provided in the future PRC Civil Code, the element identifying such provisions as special commercial rules shall be addressed. Because ＂business＂ functions as the core concept of commercial law and based on the latest development trend of comparative law, it should take the subjectivist approach to set up such recognizing element. The ＂business operator＂ should function as such identifying element. The business operator is the person who operates business. Different from the European traditional law and practice, the professional persons e.g. lawyers should also be qualified as business operator to whom the special commercial rules should be applied.