| There are two characteristics in modern commercial subject: organizational and mercantile.The characteristic of "organizational" differentiates the concept "commercial subject" from the concept "merchant". The mediaeval merchant law emphasizes the concept "merchant", whose basis is the natural person. Moreover, in eighteen and nineteen century, the main civil law countries viewed this in the same way when they compiled their commercial codes. In today's society, however, enterprises have become the main subject of transactions, then the subject of modem commercial law, which are organizations rather than individual "merchants". In this sense, we insist that modern commercial subject is organizational.As a kind of legal subject which is different from natural person, commercial subject has been entitled legal personality, but this kind of personality can not find its justification from nature law, and can be justified only when it could extend the freedom and interests of natural person. As organizational entities, commercial subject can make the natural person break through their capacity as individuals, so as to achieve their "free will" in a much higher perspective. And we call this kind of benefit the "organizational value" of commercial subject to individual natural person. However, as it always goes, "organization" may also means coercion to its members, and this kind of coercion makes the "organizational value" of commercial subject straying.Mercantilism is the inherent nature of commercial subject, which is the drive to the development of business, and the legal system of commercial subject should recognize and promote the value of mercantilism. But we regret to see that China's legal system of commercial subject strays from this objective to some extent because of the interference of public power, which leads to some negative effects in business practice.Thus, what we ought to do now is to find a right way to rectify the value straying of commercial subject, to keep it on track, and then to improve our legal... |
