Research On Judicial Application Of Commercial Judicial Idea

From the external point of view,commercial law and civil law,both as private laws,are closely connected.However,from the internal point of view,commercial law lacks the general provisions that run through the commercial law system,and the system is loose.The relationship between civil law and commercial law and the system construction of commercial law directly affect the independence of commercial law.which is a subject that the academic community have been pursuing for a long time.With the advancement of the compilation of the Civil Code,it is increasingly urgent to introspect on the position of commercial law in the legislation of the Civil Code.The uniqueness of commercial law and commercial trials has been on an extensive consensus.The trial practice has proposed the idea of commercial trials,expecting it to more accurately position commercial trials under the "big civil trial pattern".However,on the legislative level,the fundamental principles of commercial law have not been confirmed in the legislation,and it is difficult to provide a definitive and unified trial idea for commercial trials within the scope of discretion.The idea is important but difficult to grasp.because firstly the angles and the standards of research are various according to different scholars,and secondly the position and connotation of the commercial trial idea have not yet reached a consensus.Furthermore,how does the idea of commercial trials express and apply the law,which means whether or not the idea of commercial trials is used in judicial practice,and how much theoretical support is provided for the study of commercial particularity,also lacks practical verification.In view of the above,this paper,based on the current legal pattern in China,utilizes comparative research,empirical analysis and several other research methods to explore the expressions of the idea of commercial trials in practice,in order to summarize the common law applicable to commercial law.The full thesis is divided into four chapters:The first chapter firstly sorts out and summarizes the basic concepts and contents of the idea of commercial trials,and argues that the idea of commercial trials itself has problems of unclear positioning and content plane.Then it compares the domestic and foreign scholars'views on the concept of commercial law and puts forward the systematic tlhinking path of the extension of the idea of commercial trials.It believes that the idea of commercial trials refers to the idea and principle that legal interpretations in accordance with the law of commercial activities should be followed.Finallhy.from the perspective of function.expound the original intention of the idea of commercial trials and the mechanism of action,and confirm the feasibility of the research.The second chapter adopts the method of empirical analysis,and uses the"commercial" as the key to filter the relevant judgment documents,describes the contents expressed by the "commercial",and analyzes the intention of referring to the"commercial" keywords in the judgment documents.To summarize the characteristics of the reasoning and application of the law,and raising the problems arising in the judicial application.The principle of civil law also bears the role of interpretation of commercial cases,and it is necessary to sort out the concept of commercial trial.The third chapter combines the conclusions of theoretical combing and empirical research.and discusses the necessity and implementation form of transaction efficiency and transaction security idea summarized in commercial trial practice.It is believed that the concept of transaction efficiency is expressed by encouraging transactions and respecting the autonomy of meaning.The prudent use of efficiency in trial practice is due to its conflict with the idea of fairness.Transaction security is widely used in the form of appearicism and strict liability.The essence of transactions lies in the distribution of risks,and the degree of protection of a certain subject should be reasonably defined.The fourth chapter puts forward the referee method of measurement of interests.the division of civil and commercial subjects,etc.and then combines the idea of commercial trials mentioned above to discuss the commercial affairs concentrated in the empirical research,which are adjustment of liquidated damages in commercial contracts and the validity the ultra vires company external guarantee.Finally,to discuss the judges' discretion in dealing with commercial disputes.