《民法典》中民商区分规范之检讨

Review of the Standards for Distinguishing Civil and Commercial Matters in “The Civil Code”

中世纪时期商法和民法各自独立发展,近现代以来,各国将商法与民法进行统一立法,民商区分的问题因此产生。无论是采取民商分立还是民商合一的立法模式,都需要也都可以解决民商区分问题。文章通过对我国《民法典》中具体规则的全面检讨,发掘其中应进行民商区分的具体规范,指出可通过在《民法典》特定规则之后加入商法特殊性规范的方式解决民商区分问题。总则编和合同编中存在大量需要进行民商区分的规则,物权编、人格权编和侵权责任编中仍存在部分需要进行民商区分的规则,而婚姻家庭编和继承编专属于民法,与商法相互独立,无需考虑民商区分问题。

During the Middle Ages,commercial law and civil law developed independently.In modern times,countries have unified legislation between commercial law and civil law,leading to the issue of their distinction.Whether adopting the legislative model of separating,or integrating,civil and commercial affairs,both need and can solve this problem.The article comprehensively reviews the specific rules in China's “Civil Code”,explores the specific norms that should distinguish between the two laws,and points out that the problem can be solved by adding special norms of commercial law after the specific rules in the “Civil Code”.There are a large number of rules in the general provisions and contract provisions that require differentiation between civil and commercial law.There are still some rules in the property rights,personality rights,and tort liability provisions that require differentiation between civil and commercial law.However,the marriage and family provisions and inheritance provisions belong exclusively to civil law and are independent of commercial law,so there is no need to consider the issue of differentiation between civil and commercial law.