走向勃兴的商个人:主体转向及制度因应

The Rising Sole Proprietor: The Change of Subject and Its Regulation Reform

企业组织架构的盛行不能掩盖商个人的基石地位,商个人乃商人体系之核心,其因循市场交易和契约自由的本质而历久弥新,在网络科技助推下,更是逐渐走向勃兴。但囿于大企业观的强势主导,小微色彩浓重的商个人在我国未得到足够重视,其制度供应严重不足,且内在关系含混,无益于商事创新的推进。实践中,《民法总则》"民商合一"的理念为商个人体系提供了粗浅的架构尝试,但民商思维的殊异决定了其非但无法从根源上解决商个人的法律弊端,还可能引致商人体系与民事主体之混淆。问题之解决应从商事特质出发进行制度性回应,明晰商个人的营业自由权利,加强商个人内部的区分度塑造,并通过《商法通则》的制定来统合共识。

The prevailing cooperation shouldn’t cover the basic sole proprietor which is the core of merchant’s system. Sole proprietor abides by the market rules and contract obligation,and begins to surge forward with the help of internet technology. However,because the conception of super cooperation is too convinced in recent years,sole proprietor focused on micro business is ignored in our country. Its rules are insufficient and its inner law relationships are confusing,which are bad signals for the business innovation.In reality,The General Provisions of Civil Law has provided the simple construction for the system of sole proprietor,but the differences between civil law and merchant law lead to much confusion. The method to solve the problem is that we should emphasize more on its own business character,confirm the right of freedom in business,strengthen the differentiation of each kind of sub-concepts,and try to reach a consensus through the establishment of The General Principles of Commercial Law.