民法与商法二元格局的演变与形成

发布时间：2018-12-10 23:03

【摘要】：民法相对于商法的备位性问题应当重返两者在私法体系中的相对关系加以理解。近代早期之前,商法经历了体系性缺位、商人法形成和国家化三个阶段,而同时期的民法则稳定地以地方习惯法、罗马法与教会法为主要渊源。其中,罗马法阶段的私法状态奠定了后世民法与商法二元格局的历史基础。中世纪以来,商人法以其超越国家法的特质完全隔绝于民法之外,而在近代早期,民法的迟滞则使其与商法的二元格局更为固化。现代意义上民法与商法的二元格局始于19世纪。近代以来民法的进步使得商法的外在独立性有所削弱,就此欧洲私法领域形成了民商关系的"相对性理论",并对19世纪晚期的商事立法产生重要影响,但该理论的有效性其实以时间、制度内容等方面的限制为前提。商法规范独立性的消亡将导致其内在独立性失去意义。就狭义商法而言,其作为特别法在本质上是以特定主体为对象加以建构的,企业经营组织作为主体性要素为狭义商法奠定了制度基础,商法规制目的及商业事实基础上的商法原则确保了规范层面外在独立性的存续。从目的论体系角度看,民法与商法负担着截然不同的建构目的,两者的二元格局在今日仍得到维持。这种二元格局的认识具有体系意义与实践意义。
[Abstract]:The relative relation between civil law and commercial law should be understood. Before the early modern times, commercial law went through three stages, namely, the absence of system, the formation and nationalization of merchant law, while the main source of civil law in the same period was local customary law, Roman law and church law. Among them, the state of private law in Roman law stage laid the historical foundation of dualistic pattern of civil law and commercial law. Since the Middle Ages, the merchant law was completely isolated from the civil law because of its surpassing the national law. In the early modern times, the stagnation of the civil law made it more solidified with the dual pattern of the commercial law. In the modern sense, the dual pattern of civil law and commercial law began in the 19 th century. Since the progress of civil law in modern times, the external independence of commercial law has been weakened, so the "relativity theory" of civil and commercial relations has been formed in the field of European private law, which has had an important influence on the commercial legislation in the late 19th century. But the validity of this theory is based on the limitation of time and system content. The disappearance of the independence of commercial law norms will lead to the loss of its intrinsic independence. As far as the narrow commercial law is concerned, as a special law, it is essentially constructed with the specific subject as the object, and the business organization as the subjective element lays the institutional foundation for the narrow commercial law. The purpose of commercial law regulation and the commercial law principle on the basis of commercial fact ensure the existence of external independence in normative level. From the point of view of teleological system, civil law and commercial law bear a different purpose of construction, and their dualistic pattern is still maintained today. The understanding of this dual pattern is of systematic and practical significance.
【作者单位】：浙江大学光华法学院;
【基金】：国家留学基金委的资助
【分类号】：D923;D923.99

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