商业行规的类型化及法律适用

Typification of Commercial Regulations and Application of Law

商业行规是实现商业行业治理的基础,是商事法治完善的重要构成,绝对否定商业行规法律约束力的理论与实践不利于我国市场经济法治建设。文章将商业行规划分为正式商业行规与非正式商业行规两个基本类型,前者等同于商事惯例且具有法律约束力,可作为补充性法源予以适用,而后者不同于商事惯例,亦不具法律约束力。通过商法理论解释和案例统计分析,文章对正式商业行规与非正式商业行规的分类意义,以及正式商业行规与非正式商业行规法律适用中存在的问题、解决思路以及相应对策进行了阐述和论证,在新时代社会治理新格局和民法典分编制定的背景下,具有重要的理论和现实指导意义。

Commercial regulations are the basis of realizing the self-governance of the commercial industry and an important component of improving the rule of law in business. The theory and practice of absolutely denying the legal binding force of commercial regulations are not conducive to the construction of the rule of law in the market economy of our country. This paper divides commercial regulations into two basic types: formal commercial regulations and informal commercial regulations. The former is equivalent to commercial practice and is legally binding, and can be applied as a supplementary source of law, while the latter is different from commercial practice and is not legally binding. Through the theoretical explanation of the commercial law and the statistical analysis of cases, this paper expounds and demonstrates the classification significance of formal and informal commercial regulations, as well as the problems, solutions and corresponding countermeasures in the application of formal and informal commercial regulations. Under the background of the new social governance pattern and the establishment of civil code in the new era, this paper has important theoretical and realistic guiding significance.