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On "commercial General Principles Of The Feasibility Of Legislation

Posted on:2008-04-26Degree:MasterType:Thesis
Country:ChinaCandidate:Q ZhangFull Text:PDF
GTID:2206360212992989Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
General Principles of Commercial Law, which is different from Commercial Code, is put forward by Chinese commercial law scholars. Scholars regard it as general rules of commercial law, which commands separate commercial regulations. It should concern general matters in commercial relations and provide general rules that regulate commercial relations. We have not yet studied the legislative feasibility of this statute law deeply. To discuss the legislative feasibility, we can adopt the method of logical positivism, the method of Comparative Law and the method of historical jurisprudence. Considering the legislative mode of commercial law, commercial subject law and commercial act law, we can come to the conclusion that General Principles of Commercial Law is feasible.First, taking account of the legislative mode. In the countries that adopt separation of civil law and commercial law, Commercial Code has being fallen to pieces. It has become general rules that regulate commercial relations. In the countries that adopt combination of civil law and commercial law, some countries bring commercial rules into Civil Code. As a result, the Civil Code became so lengthy and so unorderly. The others that neglect general rules of commercial law encountered many problems. They are not as feasible as General Principles of Commercial Law. The Civil and Commercial Code neglect the commercial subject and commercial act that are basic categories of commercial law. It exaggerates the difference of civil rules and commercial rules. If we regard the commercial law as a volume of Civil and Commercial Code, it will fall away from the current course of codification of civil law. General Principles of Commercial Law complies with the basic categories of commercial law and the current course of codification of civil law. Compared with these two theories, General Principles of Commercial Law is feasible. General framework of civil and commercial law makes us pay attention to the choice between "code" and "general principles". Though the theory of formal rationality, we can conclude that General Principles of Commercial Law plus separate commercial regulations is the most feasible mode of legislation because of the theoretical principle and system of commercial law.Second, taking account of the legislation on commercial subject. In the Continental Law System, there are three legislative principles on commercial subject law, that is, the principle of subjectivism, the principle of objectivism and the principle of eclecticism. The principle of subjectivism is not only in favor of the forming of formalistic commercial law but also accord with the rule of evolution of civil and commercial law and the notion of equality between right and obligation. If we can adopt this principle as the foundational principle, the legislation on commercial subject is more feasible. Additionally, the commercial subject law in General Principles of Commercial Law should concern the general rules that act on separate commercial subject law widely. It should comprise the concept of commercial subject, legal institution of commercial registration, legal institution of commercial right of personality, legal institution of commercial account book.Third, taking account of the legislation on commercial act. Single principle of subjectivism makes against the legislative feasibility of commercial act law. The principle of objectivism can explain the legislative feasibility of commercial act law. Especially, we should distinguish between absolute commercial act and relative commercial act with the method of historical jurisprudence. The commercial act law in General Principles of Commercial Law should comprise three kinds of rules of commercial act, that is, "general rules of commercial act", "rules of relative commercial act" and "rules of absolute commercial act". Among them, the first and the second are formed by providing, modifying and eliminating the general and specific civil rules. The third is formed by reorganizing rules of commercial contract in contract law.
Keywords/Search Tags:General Principles of Commercial Law, legislative mode, commercial subject, commercial act
PDF Full Text Request
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