The Theoretical Reconstruction Of Ability System Of Business

The ability of business is a new concept with a lot of controversies in academic discussion. Although some scholars have introduced the concept in their papers, and Macau, as the Special Administrative Region of our country, have made it in chapter 2 of Commercial code, but the study on it is still absent. Even it is very difficult to find out one paper with this problem. Nowadays, the study on it is still limited at the simple comparison with the traditional civil ability and the introduction concerning other countries' law, and didn't analyze it overall. Even some scholars believe that some relative problems can be solved by civil ability and it is no necessary for us to set up a new legal system of business ability in the trend of "the business law is turned to the civil law" and "the civil law and business law united as one". However, it has caused the confusion in practice lives, just because the academic circles neglect and deny this theory. One of the performances is the problem of companies' subject qualifications after being revoked the business licenses.This thesis' basic way of thinking like this: we choose the legal problem that the business enterprises were revoked the business license as a point of departure and indicate the limitations which using traditional civil theories solve this problem, and civil rules and business rules lack harmony in the course of "the business law is turned to the civil law". In addition, the idea which is so-called "the civil law andbusiness law united as one" not only can't solve some business problems in practice, but also made a lot of difficulties in the harmony of civil law itself. So, we believe it is very necessary to put forward and reconstruct the theory of business ability. Through studying this theory, the foundation theories of business law will be more perfect. I hope the theory of business ability will be written in the "General Rules of Business Law" which may be made in future.There are some innovations in this thesis. Firstly, we put forward the theory of business ability systematically. Secondly, we divide the ability of business into the ability of business rights and the ability of business act. Thirdly, the thesis analyzes the business register and the business license. Fourthly, this thesis generalizes the limitation of the business ability. Fifthly, the thesis solves the problem of companies' subject qualifications after being revoked the business licenses and the validation of the enterprise's behavior which is beyond the permitted scope through using this kind of theory. The writer studies the proposition through using the methods of history, economics, positivism, comparativeness and sociology.There are five chapters in this thesis, and about 50 thousand words.Chapter OneIn chapter one, thesis indicates it caused a series of problems which evaded the liquidation and obligations and infringed upon legal benefits of the creditor, just because the business enterprises were revoked the business license. What's more, the national industry and business administration organization's reply and judicial opinion about the problem appear the conflicts. The academic circles carries on introspect to this problem and how to deal with it using traditional civil theory has turned to the scholar's controversial focus. In the controversy, the proper blemish of the original theories of civil law also exposes doubtless. The writer generalize a conclusion from the scholar's opinions that the original theories of civil law can't solve the problem and the imperfection of foundation theories of business law is the key of solving this problem.Chapter TwoIn this chapter, the writer tries to clear out many obstacles for putting forward the theory of business ability. (Because the business ability belonged to the foundation theories of business law and came from the subject of company and company's behaviors. Only if we distinct the business law and civil law and accept the view that business law is an independent legal section, it is possible to continue to study.) About the idea of "the civil law and business law united as one", the writer analyses the origin and the development process of civil law and commercial law through using the methods of history, economics and sociology, then retort an argument against some scholar's opinions which is mentioned in preceding context. Otherwise, I point out that commercial law is very different from civil law in logical order, value and economic foundation. The thought of "the business law is turned to the civil law" is positive. It will lead to two negative results: one is that it will break the tight logical system of traditional civil law and the family lives. The other one is that it won't make the business law exert effect that it should be haven. It is incompatible with the modern business's request which need to accumulate a huge sum of capital, use capital scenically and maximize the capital benefit. The thought of "business law is turned to civil law" means to return toward the natural economy of simple merchandise produce.Chapter ThreeIn this chapter, thesis sets up the theory of business ability systematically and analyzes the concept through comparing with subject of company, company's behaviors and civil ability. What's more, it indicates the advantage of solving the problems which the business enterprises were revoked the business license through using the theory of business ability.Chapter FourThe purpose of this chapter is to elaborate the problem of the limitation of business ability. The writer cites a great deal of foreign law from the Continental lawand common law. In the end, the thesis, once more, points out the advantages of solving other problem which Confirm the validation of beyond the behavior in the permitted scope using this kind of theory.Chapter FiveOn the question which is mentioned in chapter one, the thesis gets a conclusion that how to solve the problem and summarizes all the text.