综论大清1906年《破产律》
发布时间：2018-09-13 12:24
【摘要】： 19世纪末20世纪初的中国,内忧外患,清政府为维护统治,力图学习西方,“变法自强”,随着中国近代“重商主义”思潮的兴起,各种力量也呼吁政府制定相关的法律来规制社会的民商事行为,以维护国家利权,保护商民利益,打击不法行为。而近代中国在与西方列强在华利益斗争时也屡遭欺侮,也迫切需要制定相应的商事法律来保护自身利益,以上的种种原因使得清政府不得不移植西方的商事法律来制定本国的律法,由此近代第一次民商事立法热潮开始了。晚清的这次商事立法由于大都照搬西方,尤其是日德等国,所以不可避免是虽然近代世界先进的商法思想和商法语言都被引入,却与中国传统的商事习惯和思想产生了激烈冲突,由此必然遭到社会各界普遍的抵触和怀疑,尤其是中国最广大的商民,由于对法律知识知之甚少,习惯于用道德和传统来解决商事问题,对新的法律的条文与思想与传统习惯不同的地方非常敏感,提出了很多批评意见,甚至激烈地要求废除某些条文。而大清《破产律》正是在这种背景下产生的,清政府制定它的目的实际上一开始就是为了保商保民,严厉打击民众所反应强烈的愈演愈烈的“倒骗“行为,它的条文大都照抄日本的破产法,虽然在该律中也包含了符合和满足中国传统社会现状的一些商事习惯,比如选举一名公正之董事来清算和处理破产程序,并尊重当时社会商会在整个行业中的权威地位,在整部法律中突出商会的地位,并将其作为破产程序的主导者,这些都不失为这部《破产律》的亮点。尽管如此,这部法律更多的是和中国的传统思想习惯冲突太大,遭到激烈的反对和抵触,并最终被废止。而这部破产律正是因为早早流产,对社会的影响并不是很大,所留痕迹也不是很深,历来不被人重视,研究者甚少,其在近代中国商事立法中的地位和作用一直被忽视,由此它对研究我国近代法制环境和东西方法律思想之激烈冲突的作用以及引申的反映近代中国商事立法之艰难过程的学术地位也就被轻视,这不论对近代商法史还是商法的研究都是很大的损失。 本文就是要以大清《破产律》为中心,深入探讨中国近代商事立法之环境和过程,并进而指出晚清时代的中国东西方法律思想的激烈碰撞导致近代中国司法进程举步为艰,以期对我国的法律移植和商事立法提供宝贵的借鉴意义。本文共分五章,第一章主要介绍《破产律》诞生的时代和社会背景,重点介绍处于19世纪末20世纪初的晚清的社会环境和急需民商事立法的现状,并简要地说明了《破产律》的立法过程和大概内容。第二章主要介绍《破产律》的缺陷以及商民对它的激烈批评,从中看出晚清商法大致相同的立法缺陷。第三章就进一步指出《破产律》的一些亮点和进步,所谓瑕不掩瑜,法律移植也有其优点。第四章就从《破产律》的立法进程和社会反应进一步分析19世纪末20世纪初中国的法制环境,并为下一章的总结和提炼打下基础。最后一章旨在总结全文的分析,进而指出近代中国商事立法之艰难过程,并从中取得现实的借鉴和参考意义。
[Abstract]:At the end of the 19th century and the beginning of the 20th century, in order to safeguard the rule of China, the Qing government tried to learn from the West, and "reform and self-improvement". With the rise of the trend of "mercantilism" in modern China, various forces also appealed to the government to formulate relevant laws to regulate social civil and commercial acts, in order to safeguard the interests of the state, protect the interests of merchants and citizens, and combat illegal practices. As a result, the Qing government had to transplant the western commercial laws to formulate its own laws. This was the first upsurge of civil and commercial legislation in modern times. Because most of the sub-commercial legislations copy the West, especially Japan and Germany, it is inevitable that although the advanced commercial law thoughts and the commercial language in the modern world have been introduced, they have a fierce conflict with the traditional Chinese commercial customs and ideas, which will inevitably be confronted with widespread conflicts and doubts from all walks of life, especially the broadest Chinese business. The people, because they know little about the law, are accustomed to using morality and tradition to solve commercial problems. They are very sensitive to the provisions and ideas of the new law which are different from the traditional customs. They put forward many criticisms and even demanded the abolition of certain provisions. It was against this background that the Bankruptcy Law of the Qing Dynasty came into being. In fact, its purpose was to protect the business and protect the people from the outset, and severely crack down on the increasingly fierce "swindling" that the public responded to. Its provisions mostly copy the bankruptcy law of Japan, although it also contains some commercial habits that conform to and satisfy the current situation of Chinese traditional society, such as the election of a just director. Clearing up and handling bankruptcy proceedings, respecting the authority of the Chamber of Commerce in the industry at that time, giving prominence to the position of the Chamber of Commerce in the whole law, and taking it as the leader of the bankruptcy proceedings are all highlights of the Bankruptcy Law. But this bankruptcy law is precisely because of the early miscarriage, the impact on society is not very great, leaving traces is not very deep, has been ignored, few researchers, its position and role in modern China's commercial legislation has been neglected, thus its study of China's modern legal environment. The role of the fierce conflict between Eastern and Western legal ideas and the extended academic position reflecting the difficult process of commercial legislation in modern China are also underestimated, which is a great loss to both the history of modern commercial law and the study of commercial law.
This article is to take the Bankruptcy Law of the Qing Dynasty as the center to probe into the environment and process of Chinese modern commercial legislation, and then point out that the collision of Chinese Eastern and western legal thoughts in the late Qing Dynasty led to the difficulty of the judicial process in modern China, in order to provide valuable reference for the legal transplantation and commercial legislation of our country. The first chapter mainly introduces the era and social background of the birth of the Bankruptcy Law, especially the social environment of the late Qing Dynasty at the end of the 19th century and the beginning of the 20th century and the current situation of the urgent need for civil and commercial legislation, and briefly explains the legislative process and general content of the Bankruptcy Law. Chapter 3 further points out some bright points and progress of the Bankruptcy Law. The so-called "no hidden flaws" and the transplantation of the law also have its advantages. Chapter 4 further analyzes the legal environment of China in the late 19th century and early 20th century from the legislative process and social reaction of the Bankruptcy Law. The last chapter aims to summarize the analysis of the full text, and then point out the difficult process of modern China's commercial legislation, and obtain practical reference and significance.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929;D922.291.92
本文编号：2241169
[Abstract]:At the end of the 19th century and the beginning of the 20th century, in order to safeguard the rule of China, the Qing government tried to learn from the West, and "reform and self-improvement". With the rise of the trend of "mercantilism" in modern China, various forces also appealed to the government to formulate relevant laws to regulate social civil and commercial acts, in order to safeguard the interests of the state, protect the interests of merchants and citizens, and combat illegal practices. As a result, the Qing government had to transplant the western commercial laws to formulate its own laws. This was the first upsurge of civil and commercial legislation in modern times. Because most of the sub-commercial legislations copy the West, especially Japan and Germany, it is inevitable that although the advanced commercial law thoughts and the commercial language in the modern world have been introduced, they have a fierce conflict with the traditional Chinese commercial customs and ideas, which will inevitably be confronted with widespread conflicts and doubts from all walks of life, especially the broadest Chinese business. The people, because they know little about the law, are accustomed to using morality and tradition to solve commercial problems. They are very sensitive to the provisions and ideas of the new law which are different from the traditional customs. They put forward many criticisms and even demanded the abolition of certain provisions. It was against this background that the Bankruptcy Law of the Qing Dynasty came into being. In fact, its purpose was to protect the business and protect the people from the outset, and severely crack down on the increasingly fierce "swindling" that the public responded to. Its provisions mostly copy the bankruptcy law of Japan, although it also contains some commercial habits that conform to and satisfy the current situation of Chinese traditional society, such as the election of a just director. Clearing up and handling bankruptcy proceedings, respecting the authority of the Chamber of Commerce in the industry at that time, giving prominence to the position of the Chamber of Commerce in the whole law, and taking it as the leader of the bankruptcy proceedings are all highlights of the Bankruptcy Law. But this bankruptcy law is precisely because of the early miscarriage, the impact on society is not very great, leaving traces is not very deep, has been ignored, few researchers, its position and role in modern China's commercial legislation has been neglected, thus its study of China's modern legal environment. The role of the fierce conflict between Eastern and Western legal ideas and the extended academic position reflecting the difficult process of commercial legislation in modern China are also underestimated, which is a great loss to both the history of modern commercial law and the study of commercial law.
This article is to take the Bankruptcy Law of the Qing Dynasty as the center to probe into the environment and process of Chinese modern commercial legislation, and then point out that the collision of Chinese Eastern and western legal thoughts in the late Qing Dynasty led to the difficulty of the judicial process in modern China, in order to provide valuable reference for the legal transplantation and commercial legislation of our country. The first chapter mainly introduces the era and social background of the birth of the Bankruptcy Law, especially the social environment of the late Qing Dynasty at the end of the 19th century and the beginning of the 20th century and the current situation of the urgent need for civil and commercial legislation, and briefly explains the legislative process and general content of the Bankruptcy Law. Chapter 3 further points out some bright points and progress of the Bankruptcy Law. The so-called "no hidden flaws" and the transplantation of the law also have its advantages. Chapter 4 further analyzes the legal environment of China in the late 19th century and early 20th century from the legislative process and social reaction of the Bankruptcy Law. The last chapter aims to summarize the analysis of the full text, and then point out the difficult process of modern China's commercial legislation, and obtain practical reference and significance.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929;D922.291.92
【引证文献】
相关博士学位论文 前1条
1 刘承涛;近代中国商会理案制度研究[D];华东政法大学;2012年
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