The Dilemmas Of The Rechtsschein Theory Under The Combination Of Civil Code And Commercial Code And The Solution

The rechtsschein theory, which is effective of establishing legal relationshipbased on the objective external manifestation, is a principle of modern commercialThe Rechtsschein Theory, which is effective of establishing legal relationshipbased on the objective external manifestation, is a principle of modern commerciallaw. Nowadays, in the developed countries like German and France, suchprinciple has already been confirmed and developed as a complete system. But inChina, it has manifested itself only in a few individual legal rules. Besides that,the academic studies are also scattered and not systematic. The reasons behind are,it’s quite a short time since we began to study the principle, and there is no generalcommercial law to meet the new value needed by economic and socialdevelopment. Under such circumstances, the Rechtsschein Theory can’t be easilyapplied to legal relationships and other regulations are to be used instead. Thisleads to confusions.Regarding the dilemmas and solution of the Rechtsschein Theory, the paperconsists of four chapters as follows:Chapter Ι gives an overall introduction of the Rechtsschein Theory. Fouraspects of the theory are analyzed, the concept, related regulations, constituent elements, and legal effects. It clarifies the definitions that caused dispute for longtime, and gives a summary of the theory.Chapter Ⅱ explains the dilemmas of the theory under the combination ofcivil code and commercial code. The confusions caused by the overlapping scopeof applications of civil law and commercial law are explained. Legislative andjudicial mistakes resulting from the lack from general commercial law are alsocovered. As the consequence, there is limited use of the Rechtsschein theory inChina.In chapter Ⅲ, the factors that affect the legislative modes of civil code andcommercial code are explained. Three aspects are illustrated: first, the status andthe doctrine of legislation of civil law and commercial law; second, the reason ofthe difficulties that prevent the combination of civil code and commercial code,that is, the conflict in values; third, different values leading to different legislativemodes are explained.Chapter Ⅳ proposes a solution to get out the dilemma, that we shouldformulate a general commercial code which helps the discretion of civil law andcommercial law. The reasons for the solution are twofold. First, the Theory ofRechtsschein should be set as a principle in the commercial code. Second, thereare a lot of separate commercial regulations in our legal system, thus thepre-conditions to formulate civil code and commercial code are inadequate. As aconclusion, a general commercial law is the best choice.