| This paper is designed to discuss the transformation of Chinese commercial law in modern times and the influence whereof to the legislation of contemporary Chinese civil-commercial law. It is hinted that transactions and correlative rules, though different from commercial law in modern times, were in existence in ancient China. Whereas seriously criticized by social theoretical scholars, Tradition-Modern as a kind of cognitional model and knowledge content is still of particular significance on illuminating the rupture of affairs behind successional time. This has not only been proved by the critics against the history school of mongline-or- crewel, but also won the favor of simultaneous structualist. Based on such understanding, the author agrees that modern commercial law is the ramification of Western civilization. Modem commercial law came into being at the cross of 11th and 12th centuries in central Europe. Ever since then, the basic concepts and systems of it were set up gradually. Also it attained a kind of systematical nature which had combined all sorts of principles, concepts, rules and procedures. Despite the existence of commercial rules in ancient China, it is hard for us to probe into the private law character through the mode of dispute solution embodied in the ancient concept of fa( law) In China, the term shang (business) can be traced back to a clan in the time of the Xia ,the Shang and the Zhou dynasties(the first three dynasties by the year of 256 B.C)Lv(law)as a term had been popularized during the Warring States Period (403 B.C-221 B.C) .But the usage of setting the term shang next after the term lv was just a thing in late Qing Dynasty meaning a phenomenon different from either shang or lv.The development degree of commodity relationship as the object of regulation, the attitude of government to commerce and the appearance of merchant class, these three closely relative conditions gave birth to modem commercial law, that is, the development of commodity relationship provided a economical basis; the appearance of merchant class offered a stage for merchants to claim their lawful benefits, thus lead to the form of a interest group; and the attitude of government to commerce , i.e, the policy ofsupporting or despising commerce had shaped a kind of ideology, which determined in a certain extent the independent or dependent character of merchant class.Without considering the Western tradition of freedom and democracy, it should be reasonable to say that commercial law was in existence in a broad or substantial sense in ancient China. Yet achievement of the transformation of Chinese commercial law in modem times was forced by the Western nations. In the Middle Ages, modem commercial law did not come into being naturally in China like in Europe. On the contrary, it had to recur to outside forces, that is to say, it was Opium War and the succulent social vicissitude that promoted the modernization of Chinese commercial law. This paper, which is about 40,000words, elaborates the following five problems: the legislation of ancient Chinese commercial law, the produce of modem commercial law, the transformation of Chinese commercial law, the legislation of modern Chinese commercial law and its influence on the legislation of contemporary Chinese civil-commercial law. The aim is to present a model reference for the legislation of contemporary Chinese civil-commercial law through examining the experience and lessons of the legislation of commercial law in the history.Chapterl analyzes ancient Chinese commerce and its relative rules, points out the following characters of the legislation of ancient Chinese commercial law: 1,establishing, maintaining the system of regime and ban, ensuring the monopoly of the businesses running by government; 2, paying much attention to the system of market administration, restraining the development of private business; 3,developing foreign trade controlling system. It is just these characters that distinct Chinese commercial law from modern commercial law.Chapte... |
PDF Full Text Request