The Research On Commercial Liability

Many important issues and concepts on Commercial law are very easy to be doubtful, and commercial liability is such a problem. The first problem researchers has to face is whether the commercial liability is independent existence; and the relationship with the civil liability; the basis of commercial liability; the object which the commercial liability aim at; the Liability principle of commercial liability; the features of commercial liability and so on. While these questions are not so profound, little commercial law scholars have answered systematical, and this is the status of fundamental research in commercial law. As the other fundamental concepts in the commercial law, the research for commercial liability are not rich enough to respond to questions form the theoretical doubts. Law is a social managing approach, the Liability is an important mean to manage as well as to make the legal norms have a strong effect to be social norms and get the importance of security. The law sectors differentiated from each other by many factors, including its value, function, purpose, the social relation which it works. And the liability is even more important for it is the mean and mechanism by which the law shows its power. As the traditional civil philosophy, principles and rules have formed the ways to handle and investigate the traditional civil Liability, the classic commercial law concept, such as principles and rules, are bound to form a unique way to identify the commercial liability. Unfortunately, our theory and practice are influence by the mix of civil law and commercial law, so the specialty of commercial liability has not received its deserved attention. But if we have the macro-theory thinking and a wealth of commercial legal practice, the difference between civil and commercial Liability will be so obviously that it makes a lot of confusion. Keelson believed a science has to discuss the object to be described in reality, rather than to determine its object from a specific point value. Practice determines law, not the logic. Commercial Law is a typical legal sector depending on practice. The basic theory of commercial law is not as profound as civil law. And commercial liability theory doesn't has the theory system can learn from, either. So the research of commercial liability requires not only the study in the relevant theories, but also the looking for Commercial Law Practice. Based around the basis and expansion of commercial liability, the paper is divided into five chapters.Chapter one proposed the concept of commercial Liability. Starting with the debate between commercial law and civil law, associated with the related confusion, the paper proposed the concept, commercial liability. After summarizing the various existing concepts about commercial liability, this paper put forward a commercial concept of commercial liability, that is, commercial liability refers to the obligations resulted from the business main, in the business activities and its existence, violates the commercial private law obligations. The paper pointed out that the commercial Liability is resulted from the breach of private law, arising under the private burden, different from the public law duty; commercial Liability is not only resulted from its business act, but also from its internal legal relationship. In a negative sense, commercial liability is not only an adverse consequence, but also the obligation of tolerance. Then, the paper propose the commercial Liability's characteristics, based on the existing researching results, summarizes and refines the sorts of commercial liability.Chapter two is on the existence of commercial liability, focusing on the basis of the existence of the commercial Liability. The most important issue to answer this question is the differences between Civil and Commercial Law. This paper argues that commercial law is not a special law from civil law; commercial law and civil law are in the same level, belonging to private law. In comparison with the civil law, based on the unique nature of commercial law, the paper clarified that the basic answer to the commercial liability's independent existence, since the liability is differed by different laws. Here are many differences between civil and commercial law, this chapter choose a few differences to discuss. First, according to the comparison of the origins, from a historical view to review the background and different social conditions of commercial law and civil law, the paper argues that they are in two different systems. Second, based on the different adaptabilities of the civil law and commercial law in economic relations, from an economic view to review, the paper argues that the civil law is law for simple commodity economy, while the commercial law is the law for high commodity economy. In the adjustment operation of the commodity economy, the civil law is a simple gear, and the commercial law is a high gear, so they are in the mutual occlusion to promote the economy and society. Third, the value orientation is an important distinction between different law departments, which determines the basic principles of law, system composition, theory, the adjustment mechanism, and many other contents. This paper argues that the value orientation of civil law is fair while the values orientation of commercial law is efficiency. Fourth, according to the subject, behavior, external features in commercial law, the paper demonstrates the unique nature of commercial relations, so that the independent existence of commercial liability is proved compared with the civil liability.Chapter three is on the original theory of Liability for the commercial law, in order to find the support for the unique existence of commercial liability. Reflected on the Fault Liability Principle, the paper argues to the unique commercial Liability Principle. This chapter begins with the liability's philosophical basis; this paper shows that both the Liability of public law and the liability of private law can be directly or indirectly linked to the agreement with the rational, free will and freedom of choice. So this paper criticize the private law researchers for they are excessive focusing on these factors about Liability. So the will of freedom are not the differences and particularities between the liability theoretical description, and the distinction between civil Liability and commercial liability needs to be found another way out. Then, in critical of the utilitarian theory and moral theory which was used to distinguish law departments, the paper points out the distinction between law departments are the value, function, Liability basis and regulating mechanism. So, this paper compares the civil liability with the commercial liability from the burden of risk, the demands of the Liability, the preferences of the liability theory, the penetration of moral factors, the separation of morality and Liability, the distinction between civil law and commercial law. The paper highlights the risk of liability should be burdened by actors, business main, caring less moral factors. This paper makes a summary and description about the commercial Liability. Since the liability principle is an important part of the Liability theory, another important contents of this chapter is the principle of commercial liability. According to revise the principles of civil fault in a macro thoughts, it is not necessary to get the principles in unity, for the efforts to achieve the unity of civil liability principles has failed. If you have to sum up the principles of Liability, Commercial Liability principle should be the principle of strict liability.Chapter four demonstrates the commercial Liability from the point of view the main. This chapter first revealed several of the rights, obligations and responsibilities are some arrangements in private law to differ many"personality". In the analysis of personality in private law, whether the original rational economic man, or subsequent amendments to the rational economic man, this paper argues that all persons of private law made over the economic purpose, especially the modern civil law, putting on too much economic rational man coat, deviated from the subject's physical presence. Modern private law should be fully aware of this, so civil legislation should be completed from the rational economic man to return to ordinary civil ethics, while the commercial legislation still needs to uphold the commercial rational economic positioning. This paper also points out that the commercial main should take more obligations on attention. Then, this article reveals a more macro perspective about the Liability of businessmen from unlimited liability to limited liability, and to deny the legal personality and the relativization of limited liability, so that this paper demonstrates the evils which the limited liability brought about. The main commercial liability limited liability appeared to return to the phenomenon of unlimited liability, and the paper announced its basis of these entire phenomenons in commercial law. Next, the commercial organization and the responsible body changes are discussed, and the organizational body of separation and M&A has so many commercial purposes, even business transactions in another form, including in commercial Liability categories. The chapter concludes, in the expansion perspective of commercial main, responsibilities about the organizations that exist within the body, such as directors, managers, and commercial liability arisen from the resolution within the company.Chapter five is focused on combing the concept of business behavior, the composition of commercial behavior and its characteristics. This chapter tries to define the feature of commercial liability in business actions. This paper argues that behavior is the core in Liability norms. Almost all Liability norms use the behavior form to set the law in, and the commercial liability is no exception. Commercial liability norms have to reflect the behavior's characteristics, rules and requirements, while only in this way the norms' purpose can be achieved. The relation between both of them hasn't gotten full attention, both in domestic legislation and the research. So, this chapter starts with the existing business behavior theory in order to demonstrate that business act is a for-profit business behavior, while the composition and characteristics of business conduct were resolved. The paper summed up the ten differences and influences between commercial transactions and civil transactions in a simple commodity economy. On the basis of judicial practice, the paper concludes the characteristics of liability in business conduct, according to the increased Liability, the appearance Liability, business respect, protection of profit and society. The features of increased Liability point out that the liability of commercial behavior is increased not only in the legislation, but also at the practice of results-oriented more objective, more limited exemption and increasing the burden of proof; the feature of appearance liability shows that Liability is inseparable from evaluation of legal effect in acts of commercial behavior, and the law works in effect between positive and negative behavior to clarify the responsibilities' boundaries. The appearance Liability is the determined by the fact that certain acts of the appearance have the effectiveness of law, to give that people an obligation to tolerate the adverse consequences so that the law can protect the interests of relations in the trust; respect and protection of profit is determined in the view of the relief of responsibilities, combined with a lot of number of issues in judicial practice to emphasize the profit characteristics and needs in commercial liability's protection; the social effects of commercial behavior differ the commercial liability from civil liability from the internal needs and social needs for the external control perspective, but not the same as the characteristics of social Liability.Conclusion part of the full text briefly reviews and summarizes the whole paper and points out what must be addressed further.