论商法的独立性及其相对性

On the Independent Character of Commercial Law and Its Relativity

商法有形式商法和实质商法之分。商法的独立性表现在商法与民法在主体、取向、形式等方面存在着一定的差异,与经济法、劳动法、行政法、刑法、国际法等存在着更多的区别。商法独立的相对性体现在:商法与民法同属私法;互联网使商法与民法趋于统一;现代社会不存在专门商人阶层;商法与民法在调整对象上具有不可区分性;在基本追求、调整方法上有相同之处;民法的基本原则、基本内容都适用于商法。我国不需要商法典。将实质商法总则归到民法典相应各篇中,将相对独立的实质商法放在民法典之外作为民法的特别法。

Commercial law can be divided into formal one and substantial one. The independent character of commercial law is displayed in that there're some differences between the subject, orientation, form etc. of commercial Law and that of civil law, and in that there're more differences between commercial law and economic law, labor law, administrative law, criminal law and international law etc.. The relativity of commercial law independence is displayed in that commercial law belongs to private law just as civil law, internet lets commercial law and civil law tend to be united, there's no special merchant class in modern society, commercial law and civil law have undifferentiated character of adjustment object, and have the same fields in basic orientation and adjustment methods, civil law's basic principles and basic contents are applicable to commercial law. Our country need no commercial code. Bringing substantial commercial law's general rules into appropriate sections of civil code and putting relative independent substantial commercial law outside of Civil Code as special act of civil law.