商业登记法的基本问题

发布时间：2018-07-27 19:54

【摘要】：民法与商法的关系问题,虽然其争议由来已久,但迄今为止,这种争论已走出了以立法模式为讨论对象的窠臼,着重于理性地看待在法律体系中两者各自的地位和功能。囿于民法体系化的要求和商事单行法的立法局限,现有民法和商事单行法之间客观上存在着一定的空白,造成法官在裁判案件时适用法上的困境。如何走出困境,无疑是摆在研究者面前的一项重要任务。近年来,不少学者致力于商法作为民法特别法的共通性规则和补充性规则的研究,以填补民法和商事单行法暂付阙如的漏洞。学者的这种努力,为完善民事、商事法律体系无疑是有贡献的。尤其令人倍感欣慰的是,针对司法实践中的商事纠纷,有的法院已经不满足于用民法思维的传统方法和经验来解决纷争,而是以商法的思维和方法,梳理、甄别和解释相关法律事实和法律规范,以求得裁判的法理更充分、更缜密。法律的成长和发达,除了有赖于社会的发展进步以外,与学界和实务界的共同努力是分不开的。正是司法实践中提出的一道道难题,才使得在学术取得进步的同时,法律也获得了成长的动力。我们以商事实践中的法学理论问题为题展开讨论,目的在于通过对这些问题的讨论,以期对解决司法实践中的难题提供一些启发,同时期待更多的学者关注并研究这方面的问题。
[Abstract]:The issue of the relationship between civil law and commercial law has a long history, but so far, this dispute has gone out of the stereotype of the legislative model as the object of discussion. It focuses on the rational view of their respective status and functions in the legal system. Limited to the requirements of the civil law system and the legislative limitations of the commercial single law, the existing civil law and business affairs are in place. There is an objective gap between the unilateral law, which causes the judge to apply the Legal Predicament in the case of the referee. How to get out of the predicament is undoubtedly an important task for the researchers. In recent years, many scholars have devoted to the study of the common rules and supplementary rules of the civil law as the special law of the civil law in order to fill civil law and business. This effort of the scholar has undoubtedly contributed to the improvement of civil and commercial legal systems. In particular, it is particularly gratifying that some courts are not satisfied with the traditional methods of thinking in civil law and the resolution of disputes, but the thinking and method of commercial law for the commercial disputes in judicial practice. To sort out, identify and explain the relevant legal facts and legal norms in order to find the jurisprudence of the referee more fully and carefully. The growth and development of the law, in addition to the development and progress of the society, can not be separated from the joint efforts of the academic and practical circles. It is a difficult problem in the judicial practice that makes progress in academic progress. At the same time, the law has also gained momentum of growth. We discuss the problem of legal theory in business practice. The purpose of this discussion is to give some inspiration to solve the problems in judicial practice through the discussion of these problems, and expect more scholars to pay attention to and study the problems in this field.
【作者单位】：中国人民大学法学院;
【分类号】：D922.291.91

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