Research On Mandatory Norms Of Commercial Law

Optional norm opposites to the mandatory norm, meanwhile coexists with the mandatory norm that is the transparent trait of the commercial law. There is no law of other departments like the commercial law, which explains the classical law topic-freedom and mandatory so deeply. It is not hard to find in the procedure of law-legislating and amending, the configuration of optional norm and mandatory norm is always the focus of argument. Because it not only affects the Merchant 'interests which exist in each norm of the law on microcosmic, but also effects the legislation of commercial law as well as the whole social effectiveness on macroscopic. As the typical private law, optional norm is rational and supreme without reasoning, which makes it bit of meaningless in the research on theory. While the mandatory norm that is considered to be the rarity in the system of private law gets its vitality in the aspect of theory research.Besides the introduction, the article includes five chapters:Chapter one "the history evolution of the mandatory norm in commercial law" mainly explains the evolution and the development of the mandatory norm in commercial law in the way of history law. In the time of the Roman law, the mandatory norm of private law mainly sets the family ethics and morals as the core, and the commercial norm which exists in the jus gentium presents the absolute freedom; In the medieval period, in order to meet the needs of technical norm of the businessman, being affected by the economical ethics in the Canon, the mandatory norm in commercial law was strengthened. In the recent epoch of commercial law, being affected by the liberalism, commercial act law was in the trend of being weakened, but the transformation from customary law to statute law strengthened the mandatory norm in commercial subject law. Facing the tide of the law-publicing of commercial law, the modern commercial law was melted into the commercial mandatory norm which possesses the characters of the public law. Making a general survey of the developing history of commercial law, it presents three main developing trends:form private mandatory norm to national mandatory norm, from moral and ethical mandatory norm to technical mandatory norm, from modulation mandatory norm to intervention mandatory norm.Chapter two "the value analysis of the mandatory norm in commercial law" mainly uses the method of value analysis, arguing the rationality and the legitimacy of the mandatory norm in commercial law. Mandatory norm in commercial law possesses multiple values:some norms maintain the private subject's interests which are in the form of the principle of good faith?public order and kind custom?trading efficiency and trading safety on the private law value's behalf; the other norms maintain the social public and national interests which are in form if the marketing order?the economic policy, protecting the weak classes on the public law value's behalf. The dualism of the value basis is helpful for us to distinguish the two-type laws from each other in the aspect of the effectiveness. The effectiveness of the mandatory norm in commercial law on the private law's behalf should mainly evaluate the private juristic act and connect it with corresponding responsibility, while not substitute public law responsibility for the private law responsibility; The effectiveness of the mandatory norm in commercial law on the public law's behalf is limited to judge the administrative and criminal responsibility, uncorrelated to the effectiveness of private juristic act.Chapter three "the law positivism analysis of the mandatory norm in commercial law" mainly uses the positivism-analyzing way to do researches on the mandatory norm in commercial law. The microcosmic structure analysis of the mandatory norm in commercial law mainly lies in three questions:how the commercial mandatory norm sets the reasonable mandatory factor under applicable condition and act pattern?how to deal with the configuration of the right and obligation?and of the right and power, as well as how to transform the mandatory distribution into coercive effect. The macroscopic configuration analysis mainly does researches on the principle and the way how these mandatory norms are reasonable arranged in single legal text and different legal texts.While typification research mainly divides mandatory norm into seven different types:ethic and moral?technology?protection?infringement?condition?supervision?policy.Chapter four "the explaining method of the mandatory norm in commercial law" mainly uses the interpretation of law to explore the problems that are faced in judicial practise. The explaining way of the mandatory norm in commercial law divides into two phases:Qualitative explanation and Meaning interpretation. Because the difference between mandatory norm and optional norm mainly lies in the applicable link, so that before being combined with the individual case, it's the primary step to sentence the property of the norm. The property is not ready-made before the judicial person, it needs qualitative explanation in law, which mainly presents in the explanations for the auxiliary verb and suggestive words. After the qualitative explanation, the norm also needs the meaning interpretation just like the traditional interpretation of law, there are three characteristic and technical explanation methods: expansion-shrink?objective?systematism.Chapter five "the effectiveness analysis of the mandatory norm in commercial law" mainly uses the method of sociological jurisprudence to do researches on the effectiveness. Effectiveness researches not only explore how the mandatory norm actively implements the social effectiveness positively, but also discuss the challenge during the implementing procedure negatively, even face the failure of the norm. Mandatory norm in commercial law mainly uses the mandatory pattern while not the autonomy pattern to achieve the social effectiveness, given the further explanation:the mandatory norm in commercial law on the public law's behalf mainly depends on the public power to accelerate the implementing, but the mandatory norm in commercial law on the private law's behalf needs to limit the public power while depends on the private person to implement the effectiveness of law. Meanwhile commercial mandatory norm always faces the challenges brought by the evasion of law and the puzzles brought by failure of law. Evasion of law not only positively lies in evading from the applicable link, but also negatively lies in using applicable link on purpose to evading private law responsibility; The reasons of failure of law mainly include three kinds:value misconduct under norms?conflict of law as well as the social inadaptation.