“商法公法化”之不合理性分析

Analysis on the Unreasonableness of "Law-Publication of Commercial Law

商法作为民法的特别法 ,因其中的公法性内容而被诸多学者认为已经公法化。本文通过对商法历史地分析 ,发现商法自其诞生之日便打上了公法的烙印 ,公法性内容并非现代商法所独有。公法性内容的作用、地位是从属性的 ,是为商法服务的。笼统地认为商法已经公法化是不恰当的。商法中的公法性内容 ,应从实质意义上和形式意义上分别审视 ,形式意义上的商法具有公法性 ,但实质意义上的商法却是私法无疑。

Commercial law, as one of the special laws of civil law, is extensively considered to have been publicized for some public law contents in it. Through the analysis of the history of commercial law in this article, it is clear that public contents have emerged since the birth of commercial law, which are not exclusive to today′s commercial law. And all these public law contents whose function and position are subordinate, just only serve the commercial law. It′s not reasonable to say that commercial law has been publicized.Public contents should be analyzed in essence and in form respectively. Commercial law in form is some of public, however, it in essence is definitely private.