商事关系的重新发现与当今商法的使命

发布时间：2018-03-24 19:27

本文选题：金融商事关系　切入点：商法的精神教义　出处：《清华法学》2017年06期

【摘要】：我国《民法总则》采取了民商合一的立法体例,但其效果却有负期待。无论是立法原则对商事关系本身规律的忽视,还是立法技术对商事关系的粗糙处理,均表明《民法总则》没有认真对待商法。本文研究表明:商事关系是一种经营关系,由营利、营业、商人三大要素构成,民事关系难以包容商事关系。对商事关系进一步地类型化分析揭示:商事关系具有自身独立存在的精神教义和特有的调整方法,商事关系在逻辑上和实在意义上是独立存在的。民事关系与商事关系同属于私人关系;商法不是民法的特别法,它们同属于私法。鉴于民商关系的交融和民商合一思想的泛滥之现实,商事关系的法律调整并非由商法独立完成。普通商事关系由商法和民法共治,特殊商事关系是商法的边际调整,只有金融商事关系才是商法发挥主导作用的领域。因此,当今商法新的使命是从传统商事关系的调整转移到对金融商事关系的调整,并以此作为其基本定位。
[Abstract]:The General principles of Civil Law in China have adopted the legislative style of integrating civil and commercial affairs, but its effect has negative expectations. Whether it is the neglect of the laws of commercial relations by the legislative principles or the rough handling of the commercial relations by the legislative techniques, All of them show that the General principles of Civil Law do not take commercial law seriously. The research shows that commercial relationship is a kind of business relationship, which consists of three elements: profit, business and businessman. It is difficult for civil relations to tolerate commercial relations. The further type analysis of commercial relations reveals that commercial relations have their own independent spiritual doctrine and special adjustment methods. Commercial relations are independent in logic and practical sense. Both civil and commercial relations belong to private relations. Commercial law is not a special law of civil law. Both of them belong to private law. In view of the reality of the combination of civil and commercial relations and the proliferation of the idea of integration of civil and commercial affairs, the legal adjustment of commercial relations is not accomplished by commercial law independently. The common commercial relations are governed by commercial law and civil law. The special commercial relationship is the marginal adjustment of the commercial law, and only the financial and commercial relationship is the leading field of the commercial law. Therefore, the new mission of the commercial law is to transfer the adjustment of the traditional commercial relationship to the adjustment of the financial and commercial relationship. And this as its basic positioning.
【作者单位】：清华大学法学院;中国法学会证券法学研究会;
【分类号】：D923

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