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The Application Of Business Ethics In Commercial Trail

Posted on:2019-04-17Degree:MasterType:Thesis
Country:ChinaCandidate:Y M ZhaoFull Text:PDF
GTID:2416330548953031Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Modern law has paid increasing attention to the ethical bottom line of commercial activities.The "General Provisions of Civil Law" also elevates "observing business ethics" to the legal obligations of for-profit legal persons.This article intends to explore how to apply the rules of business ethics for adjudication.After the introduction,this article is divided into five parts:The first part,the empirical investigation on business ethics for commercial trail.This article begins with the empirical investigation,collected a summary of the trail case of business ethics for empirical analysis.First of all,design the empirical research elements.From the perspective of business ethics' connotation,the key words of the investigation are set,and the sample is mainly investigated from the basicposition and applicable methods.Secondly,the scope of the selection of the empirical samples is clarified.In this case,this article would like to select General Provisions of Civil Law,Contract Law,Company Law,Property Law,Bill Law,Insurance Law and Tort Law as sample sources.Finally,from the point of view of basic position,many keyword cases,the parties claim that the proportion is far higher than the court;from the point of view of applicable methods,the court used to use the abstract business ethics as the rationale,the specific law as a referee basis,but the proportion of the direct expression of the business ethics is low.The second part,the basic position of commercial trail on business ethics.Commercial activities have a profound moral foundation,many business ethics have been adopted by law in various forms,has been clearly transformed into legal obligations,those who reflect the business ethics requirements of the legal provisions should have the force of law,even for business entities,"observing business ethics" should not be limited to advocacy provisions,therefore,judicial decisions should be applied to business ethics.Of course,due to the relatively weak morality of commercial activities and the relatively difficult moral judgment,and the multiple paths through which laws reflect the requirements of business ethics,the court should carefully apply business ethics,respect commercial judgment and give priority to specific provisions.Judicial practice,the court's position on the legal norms of business ethics is debatable,the specific performances are as follows:on the one hand,the lack of due attention to business ethics in some cases.In some cases,the commercial activities obviously deviate from business ethics,but the court still supports the party's appeal,and the court made no response to the parties who advocated business ethics;on the other hand,in some case of application of business ethics,the court's attitude is too arbitrary.The third part,the direct application of commercial trail to business ethics.In commercial disputes,the court conducts a referee by the norms that directly reflect the requirements of the business ethics,including three situations:Firstly,the application of"business ethics" norms.The relevant laws and regulations include Article 86 of the General Provisions of Civil Law,Article 5 of the Company Law,Article 7 of the Partnership Enterprise Law,Article 7 of the Law of Farmer Cooperatives and Article 9 of the Cyber Security Law,Article 2 ofthe Anti Unfair Competition Law.Since such clauses are supplementary provisions of the requirements of business ethics,they should adhere to the value supplement and the last applicable method when applicable.At the same time,they should be distinguished from the basic principles of civil law which directly reflect the business ethics,such as honesty and credibility,public order and good custom.Secondly,the application of the legal norms that directly express the specific requirements of morals such as "honesty" and "morality".This expresses the specific requirements of lawmakers when they engage in specific acts in the market,and the courts should treat these legal norms in a position of treating general specific legal rules.Of course,the principle and rule should also be distinguished in the application and he direct useof business ethics should be applied.Thirdly,the application of business ethics as a source of custom.If a custom is generally accepted by the business community,and this requirement does not violate the public order and good custom,then the court can apply the custom for referees.Empirical analysis shows that the court can prudently apply the norms of "business ethics" such as Article 5 of the Company Law,which is worthy of recognition.However,the application of legal rules or legal principles directly reflecting the specific requirements of business ethics is not rigorous,because of the lack of the direct expression of moral value and the breakthrough of the applicable conditions of the legal principles;the application of the code of business ethics as a law-derived custom shows a lack of moral argument for the source of the custom.The fourth part,the indirect application of commercial trail to business ethics.In commercial disputes,the court's indirect application of business ethics includes the application of specific legal norms designed on the basis of business ethics and the direct use of business ethics to reason about the case.In the former,the court referred to a specific legal norm as the basis for trail,but no specific moral requirement could be seen directly in the expressions.In the application,the court may use the moral logic which is behind the law to explain and adjust the conflict of rights.In the latter,the business ethics areas a trailnotion,guide the judge's interpretation of activities or legal reasoning.Empirical analysis shows that the court paid insufficient attention to the ethical values of the legal norms that indirectly reflect the requirements of business ethics.However,the court attached importance to the application of abstract business ethics norms and helped to establish the notion of business ethics.The fifth part,the outlook for the future,including legislative and judicial perspectives.First of all,Article 86 of the General Provisions of Civil Law should remove the principal limitation requirement of "commercial for profit" in the application of business ethics and expand the applicable subject of "observing business ethics" to all those engaged in for-profit activities.Secondly,judicially,the courts should pay attention to the special concepts of"Socialist Core Values" and "Business Ethics" which are set in the General Rules of Civil Law,and treat the business ethics rationally and pay attention to the application methods of business ethics.
Keywords/Search Tags:Business Ethics, Honesty and Credibility, Public Order and Good Custom, Judicial Method, Custom
PDF Full Text Request
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