Characteristics of business behavior. First of all, we should know that people's consumption is not only in physical stores, but also in online shopping. Then we all know what business behavior is. Next, let's look at the characteristics of business behavior, hoping to gain something for you.
Characteristics of commercial behavior 1 1. Concept and characteristics of commercial behavior
Commercial behavior system, commercial subject system and commercial liability system constitute three basic commercial legal systems in commercial law.
Commercial behavior, also known as commercial behavior, or commercial behavior. It refers to the behavior of commercial subjects engaged in profit-making business according to commercial law. Its characteristics are mainly as follows:
First, commercial behavior is the behavior implemented by commercial subjects for business purposes.
In other words, the actors engaged in such activities include profit-making purposes or economic purposes, regardless of whether they actually make profits. In the legal practice of commercial activities, the presumption principle is often used to judge whether a particular activity constitutes a commercial act. For example, in the absence of evidence to the contrary, according to the characteristics of businessmen as commercial subjects, they can be presumed to be commercial acts. For example, the second paragraph of Article 503 of the Japanese Civil Code stipulates: "In principle, it should be presumed that all business activities of businessmen have profit-making purposes." For non-businessmen, it should be inferred according to the nature, purpose or general business habits of the behavior. If someone has not registered for industry and commerce and does not have the qualification as a commercial subject, he can continue to engage in such sales according to the external characteristics of the behavior, such as whether he takes the store as a place and takes income as the basic source of life. Accordingly, he is still engaged in business activities.
Second, commercial behavior is essentially a profit-making activity engaged by the subject with commercial behavior ability.
In commercial law, the general civil subject must have specific commercial ability if he wants to engage in commercial behavior in a strict sense. To become a commercial subject, it is generally necessary to obtain commercial capacity through registration, or to consider it as having commercial capacity according to the objective determination of the nature of its commercial behavior, which is a further judgment of commercial capacity after the presumption of civil capacity. No matter whether the former is registered by commerce or the latter is directly stipulated by law, commercial behavior can only be implemented if the commercial law gives the general civil subject a specific capacity for commercial behavior. On the other hand, the general subject does not have the commercial ability to do business, which is not recognized in commercial law and may even be controlled and sanctioned. According to the company law of general countries, those who engage in commercial activities in their own name without being registered as a limited liability company or a joint stock limited company according to law shall be ordered to make corrections or be banned, and may also be fined a certain amount.
The profit-making of commercial behavior means that its fundamental purpose is to earn the difference between cost and income, that is, profit. In business activities, profit is the ultimate goal; In order to achieve this goal, commercial entities invest money to buy (or lease) raw materials and services, produce products and sell them to earn the difference between costs and benefits, or buy goods and sell them to earn profits. Therefore, the acquisition-giving-profit structure is the basic structure of commercial activities. The judgment of profit usually refers to the businessman's intention to make a profit when purchasing (raw materials, services or products); If there is a profit intention afterwards, it is not considered profitable. To judge whether there is profit intention, we should judge according to the objective behavior facts, and not infer from the buyer's inner calculation. At the time of purchase, things bought and sold are only considered from their exchange value, regardless of their personal use value. The judgment of whether there is profit intention is also influenced by social common sense. Doctors, lawyers, artists and other freelancers often have profit-making intentions, but according to their business characteristics and historical practices, they are generally not regarded as profit-making activities.
Commercial cost includes not only the actual expenditure of production factors that manufacturers need to buy or rent in the market (so-called "explicit cost"), but also the total price of those production factors owned by manufacturers and used in the production process of enterprises (so-called "implicit cost"). Accordingly, profit is divided into two parts: economic profit and normal profit. The profitability of business activities is often called "buy back and sell". It is generally believed that the term "purchase for resale" should be interpreted broadly. Traditional commercial activities only refer to the sales activities of businessmen and the corresponding land, sea and water transportation activities, but modern commercial activities have greatly exceeded the traditional scope. Production for the purpose of selling products can also be considered as a commercial activity. Here, you buy not only tangible goods, but also intangible services (including human services and machine services); Sales refers to paid transfer. On the subject, it can be a producer or a merchant; On the object, there is no need to distinguish between buying and selling for the purpose of ownership or for the purpose of the use of things. The commercial code of some countries (such as France) clearly regards leasing as sale. Besides, the order of buying and selling is irrelevant. It can be bought for sale (speculative buying) or sold first and then bought (speculative selling). Sometimes, merchants have to wait until the order is completed before buying. But one thing is certain, that is, the commercial subject does not regard the sale as two different contracts, but regards it as an integral element of an act.
Commercial commercial behavior, also known as relative commercial behavior, is determined according to the subjectivity of the behavior and the nature of the behavior itself, with the subject of the behavior as the commercial subject and the commercial nature of the behavior as its constituent elements. A typical example is stipulated in Article 502 of the Japanese Commercial Code: "When the following acts are carried out as business, their acts are commercial acts." Article 4 1 of the law defines a businessman as "a person who does business in his own name". Article 343 1 of the German Commercial Code stipulates: "Commercial behavior refers to all business activities belonging to commercial operators." Business activities need to be repeated and regular, and they are carried out continuously in a planned way. Therefore, from the beginning, a large number of specific businesses of operators are treated as a whole, not just focusing on accidental businesses or a few businesses.
Third, business behavior is a continuous business behavior.
The sustainable operation of commercial subjects means that they can only be recognized as having business or professional characteristics after engaging in profit-making activities of the same nature for a certain period of time. If you occasionally sell used books because of moving, it is not a commercial activity at all. The requirement of the law for the continuity of business behavior is conducive to the maintenance of enterprises and the prosperity of business. Of course, in some cases, in some countries, the behavior of an entity is not continuous (such as securities trading in a stock exchange) and is still regarded as business behavior. As stipulated in Article 5 10 of the Japanese Commercial Code, trading activities in the open market such as securities trading and bill trading are preliminarily presumed to be business activities. This is because securities trading has natural liquidity, because the discontinuity of securities trading behavior of a commercial subject does not affect or hinder the liquidity of the whole securities market. Subjectively, business can be understood as the continuous profit-making activities of businessmen, and objectively, it can be understood as an organic system based on certain property and aimed at the profit-making of businessmen, including tangible assets such as factories and shops, as well as intangible assets such as goodwill and trade secrets. There is an internal relationship between subjective business activities and objective business organizations. Commercial activities cannot be separated from commercial organizations, which need the support of commercial activities. In particular, the intangible assets of enterprises can only be accumulated gradually through long-term business activities. As far as the enterprise as a whole is concerned, the two may only be differences in form.
Fourth, business behavior is risky business behavior.
Risk can also be understood as speculation, that is, engaging in certain business activities to obtain profits, but it is in an unknown and uncertain state about whether or not to make profits, so it has certain risks. Confirming the risk of business behavior helps to explain theoretically why the working class does not belong to businessmen. Because their profits are stable, they are paid regularly and quantitatively every month, and there is little risk. However, brokerage, agency and intermediary activities belong to commercial activities, because whether they can get remuneration depends on the success of the transaction between buyers and sellers, and the remuneration actually comes from the transfer of commercial profits between buyers and sellers, which is uncertain.
In a word, for-profit, commerciality and risk are the three basic characteristics of business behavior. However, as a legal concept in commercial law, the definition of commercial behavior is influenced by legislation. The root of this legislative influence lies in historical practice, social common sense and legislative needs. For example, the activities of managing agriculture, forestry and mines in history were not included in the adjustment scope of commercial law, but modern commercial legislation gradually changed this tendency. For another example, although the business activities of lawyers, doctors and other freelancers are also for profit, they are generally not included in the scope of commercial activities. For another example, the so-called affiliated business behavior, fictitious business behavior and unilateral business behavior are actually brought into the category of business behavior for legislative needs, but they do not fully have the characteristics of business behavior.
Second, the nature of business behavior
There are two views on the legal nature of commercial behavior. One view is that commercial behavior only refers to a kind of "commercial legal behavior", that is, the behavior carried out by businessmen in order to establish, change or terminate commercial legal relations, and the expression of the will of the actor is the constituent element.
Commercial behavior is essentially an extension of civil legal behavior, that is, commercial legal behavior, which has unique profit-making and commercial attributes. This view can be called the theory of legal acts. Another view is that business behavior includes both legal behavior and factual behavior. This view holds that commercial behavior is not limited to legal behavior in essence, and all commodity exchange activities for profit and activities related to commodity exchange activities, and even some activities purely for profit can become "commercial behaviors." This view can be called mixed behavior theory. There is also a view that the scope of business behavior includes businessmen's fault behavior, dangerous behavior, management behavior without cause and unjust enrichment behavior. In my opinion, the essence of commercial behavior is legal behavior, not factual behavior.
Commercial law and civil law have different historical origins. Civil law originated from Roman law, while commercial law originated from medieval city law in Western Europe, articles and regulations of merchants' guilds, judgments of commercial and maritime courts, regional and trans-regional customary laws, and separate laws promulgated by kings, lords and even churches. These articles of association, regulations, judgments and separate laws all belong to the category of the origin of commercial law. However, the theory and legislation of commercial law are still based on the mature research methods and legislative techniques of civil law. Commercial behavior is a concept corresponding to civil behavior, and civil behavior is a civil legal behavior, which is a concept relative to non-intentional behavior (including factual behavior and tort). Legal act and factual act represent two different methods of legal adjustment. Legal act is an act with the expression of will as its core, and legal act takes effect according to the content of the expression of will of the actor. Therefore, the legal rules about legal acts are developed around the expression of will. For example, the establishment of a legal act has only one expression of will, and a complete expression of will should be composed of three elements: effective meaning, purpose meaning and expression behavior. The general effective elements of a legal act include: the actor has the capacity to act (capacity to act actually refers to the ability to express his will), the intention is true and voluntary, the content of the act is legal, and the act does not violate the interests and morality of the public. Factual acts, on the other hand, are not expressed by will, and the content of the legal relationship they produce is not determined by the will of the actor, but comes from the clear provisions of the law. Therefore, the legal rules of factual behavior focus on the constitutive elements of factual behavior, including the subjective psychological state of the subject, the objective content of the behavior, the legal consequences caused by the behavior and the causal relationship between the behavior and the consequences. At the same time, whether it is unjust enrichment or negotiorum gestio, whether it is looking for buried objects or lost things, as long as it meets the constitutive requirements of factual acts stipulated by law, it can produce legal consequences clearly stipulated by law. Moreover, through the definition of "necessary expenses", "beneficial expenses", "direct losses" and "indirect losses", the legal consequences of the law on factual acts are clear and embodied. The rights and obligations of different subjects in the field of factual behavior are only different in quantity, not in quality. However, the legal rules related to legal acts are general and abstract, and the specific content of rights and obligations depends on the specific expression of the specific subject's meaning. Therefore, the rules of factual behavior are clear, unified and public, while the rules of legal behavior serve personalized and non-universal legal relations. Therefore, the former embodies the adjustment mode of legalists, and the latter is the adjustment mode of legal acts, both of which have their own scope of application.
It can be seen that commercial behavior is a concept corresponding to civil behavior, which is based on the expression of will and produces legal effect according to the content of the expression of will. Whether the subject has corresponding capacity, whether the expression of will is true and voluntary, and whether the content of the expression of will is legal are the criteria for judging whether the act has legal effect. However, from the perspective of expression of will, there are the following differences between commercial acts and civil acts:
1, the purpose of business behavior includes profit motive.
Profit-making is the essential feature of commercial behavior, the key to the independent value of commercial behavior different from civil behavior, and the reason that determines the particularity of commercial law rules. The profitability of commercial behavior lies in the will of the commercial subject. Without the pursuit of profit-making goals, any behavior is not a commercial behavior.
2. Different legal rules apply to the expression of will.
"Will theory" is a traditional method to explain the meaning of civil legal acts. The theoretical basis for the emergence of "voluntarism" is19th century German rational law school. It believes that the purpose of explaining the expression of will is to "explore the true meaning of the parties." Therefore, when the expression is inconsistent with the meaning, the establishment of a legal act should be based on the interpretation of the real meaning of the actor, not the literal meaning of its expression. Meaning doctrine is the main principle to explain the expression of will in civil legal acts. However, in the field of commercial behavior, we always adhere to the objective interpretation method of "expressionism", and judge the effectiveness of the behavior by the meaning expressed by the businessman, rather than exploring the real intention of the actor in the behavior. The most typical is the literal characteristics of bill behavior. When there are disputes about the terms of bills, externalism, objectivism and validity principle are generally adopted to explain them. Expressionism is an explanation method suitable for commercial behavior to make profits, which conforms to the value pursuit of high efficiency, quickness and safety in commercial society. The voluntary truth of the expression of will is an important factor in the effectiveness of civil acts. A civil act caused by fraud, coercion, serious misunderstanding or taking advantage of a person's danger is invalid or revocable. However, there are special rules in the field of business conduct. Take the company contract as an example. If shareholders set up a company with others based on fraud, coercion or major misunderstanding, as long as they have obtained the company establishment certificate, based on the principles of commercial law upheld by the enterprise, shareholders are not allowed to declare the company invalid or demand the cancellation of the company by their own will, and they can only ask the company to take certain remedial measures to correct the existing illegal acts.
3. Different connotations of behavioral ability
The elements of the actor's ability required by the civil juristic act are actually the requirements of the actor's will ability, so the civil capacity depends on the actor's age, intelligence and mental state. The effectiveness of commercial behavior also requires the subject to have the ability of commercial behavior. However, commercial capacity and civil capacity have different connotations, which are the requirements for the actor's fund management or property capacity. Especially in modern society, businessmen are represented by all kinds of enterprises. The rights and behaviors of enterprises come from registration, and commercial registration has certain requirements for the name and property of enterprises. In other words, the basis of business ability is not a businessman's age, intelligence and mental state, but his capital management or property ability.
The above is not only the essence of commercial behavior, but also the fundamental difference between commercial behavior and civil behavior.
Characteristics of business behavior. Characteristics of business behavior
Commercial behavior, as a profit-making commercial activity, is only a special civil activity. The essential feature of commercial behavior, which is different from general civil activities, lies in its profit-making behavior. According to the general understanding of commercial law theory, the legal characteristics of commercial behavior are mainly manifested in the following aspects:
First, commercial behavior is the behavior that the subject engages in for the purpose of making profits, which is called "to achieve a certain economic purpose" in China's relevant economic laws and regulations (Article 2 of the Economic Contract Law). This feature shows the profit-making purpose or economic purpose generally contained in business activities, regardless of whether a particular business activity can actually make a profit. In the practice of commercial law, the rule of legal presumption is often used to judge whether an act has a profit-making purpose. For businessmen, this judgment is often easy to solve. According to the commercial laws of many countries, in principle, it should be presumed that all business activities of businessmen (commercial subjects) have profit-making purposes (Article 503, paragraph 2, of the Japanese Commercial Code), but for non-businessmen, it is more difficult to determine, and it usually needs to be determined according to the objective purpose and business habits of similar behaviors.
Second, business behavior is a kind of business behavior in principle, which shows that the subject has been engaged in some profit-making activities of the same nature for at least a period of time, so it is commercial or professional. According to the commercial laws of most countries, the occasional profit-making behavior of general civil subjects (such as the sale of household goods) does not belong to commercial behavior, and the control rules of special commercial law are not applicable. Theoretically speaking, the commercial subject registration rules, commercial account book rules, commercial tax rules, commercial behavior control rules and commercial liability rules in modern commercial law mainly focus on controlling the economic activities of commercial subjects (enterprises), but only have subordinate significance to controlling the intermittent profit-making activities of ordinary civil subjects without commercial registration. However, in practice, the commercial laws of many countries often assume some trading behaviors as business behaviors, such as trading behaviors in the open market, securities trading behaviors and bill behaviors. (Article 5 10 of the Japanese Commercial Code)
Second, the scope of business activities
Business behavior must be embodied in specific forms of business activities. With the constant change of human economic life style, the continuous progress of science and technology and the continuous innovation of trading methods, the scope of business activities is also expanding, and the meaning of business behavior in the field of human culture is also constantly updated. From the early commercial behavior, which was regarded as a special behavior of the merchant class and was generally discriminated by the society, to the modern commercial behavior characterized by capital management represented by securities, trust and insurance in modern society, commercial behavior has penetrated into all aspects of social life. Therefore, modern society can be said to be a "jobless, non-commercial" society, and the content of business behavior is also undergoing profound changes, such as the development of trading behavior from spot trading to futures trading, from physical trading to rights trading in the form of securities. Commercial law is the product of empiricism, so the commercial code in a specific era can only reflect the reality of economic life in a specific era. Therefore, the scope of commercial behavior in the commercial code of civil law system has many limitations of the times.
Modern commercial law in civil law system adopts either general law, enumeration method or a combination of the two. The French Commercial Code adopts enumerationism: legally speaking, buying and selling business is any business of selling goods, or manufacturing and selling goods, or buying goods because of leasing, or manufacturing, insurance, water transportation, goods supply, brokerage, bidding, viewing, gold and silver exchange, and banking business. All shipbuilding and its trade, marine insurance, marine trade and other businesses. Swiss debt law adopts a generalized approach. All businesses that operate businesses, factories or other businesses according to the methods of businesses are registered as businesses, and their implementation behavior is business behavior. Japan's commercial code adopts a combination of enumeration and generalization. Articles 50 1 and 502 stipulate that the transfer of movable property, real estate and securities, trading in exchanges, leasing, processing, manufacturing and supplying electricity and gas for others, publishing, printing, insurance, intermediary and agency are all commercial operations. The Uniform Commercial Code of the United States mainly adjusts the commercial transaction system, so it is more like the commercial behavior law in the commercial law of continental law system. And stipulate the rules of business conduct according to the general order of transactions. The scope of its adjusted business behavior mainly includes:
1, commodity sales
However, the scope of buying and selling in the code is narrow and has distinct modernity. "Goods" refers to movable property specific to the sales contract, excluding real estate and intellectual property, currency, investment securities and services. Mineral resources, natural gas and oil are treated differently by the buyer or seller. The buyer's purchase is an act involving land as real estate, and the seller's purchase and sale is the sale of goods. In addition, because of special provisions, bulk transfer and secured transactions do not fall within the scope of adjustment of the sale of goods. The transactions in the code include spot trading and futures trading.
2. Commercial paper
The prescribed forms of bills are bills of exchange, checks, passbooks and promissory notes.
3. Letter of credit
4. Secured transactions
Such as loan purchase and credit sale.
The Uniform Commercial Code of the United States is actually a sales law.
In the International Commercial Arbitration Law drafted by the United Nations Commission on International Trade Law, the word "commercial" is interpreted as commercial activities, including but not limited to the following transactions: any transaction that provides or exchanges goods or services; Sales agreement: business representative or agent; Security agent; Lease; Consultation; Design: license; Investment; Financing; Banking; Insurance; Mining agreements or concessions; Joint ventures or other forms of industrial and commercial cooperation; Passenger and freight transport by air, sea, rail or road.
Article 33 1 of the proposed draft of China Commercial Code, which I personally drafted, stipulates that commercial behavior is the business behavior that commercial subjects engage in for the purpose of making profits. And using enumerationism, it is stipulated that the commercial behavior mentioned in this specification refers to the following behaviors that commercial subjects engage in for the purpose of making profits:
(a) Sale of movable property, immovable property, securities and other property;
(2) Lease of movable property, immovable property, securities and other property;
(3) Acts related to manufacturing, processing or repair;
(4) Acts related to electricity, radio waves, gas (natural gas) or water supply;
(five) engaged in business or services;
(6) Acts related to publication, printing or photography;
(7) Acts related to advertising, communication or information;
(8) Financial transactions such as credit and bills;
(9) Acts in places set up to provide services and attract customers;
(10) foreign exchange and other banking transactions;
(eleven) to undertake the business behavior of the agent;
(12) Behavior related to intermediary;
(thirteen) consignment and other intermediary acts;
(14) Undertaking custody;
(15) Undertaking trust;
(sixteen) to undertake transportation;
(17) insurance;
(eighteen) related to mining or soil;
(nineteen) the material integration of machinery, facilities and other property;
(twenty) the development and construction of real estate and facilities;
(twenty-one) business activities related to the licensing of trade names and trademarks;
(twenty-two) the purchase and recovery of enterprise creditor's rights;
(twenty-three) other business-related acts.
The behavior of workers and the state's official and military affairs does not belong to commercial behavior.
At the same time, article 332 further stipulates two kinds of behaviors that can be recognized as commercial behaviors-behaviors conducted by commercial subjects for business purposes are regarded as commercial behaviors; The behavior of business subject is presumed to be for the purpose of business, that is, it is regarded as business behavior. Its nature and purpose include covering all provisions and promoting commercial justice.
Generally speaking, all industries and fields operated by business entities include: agriculture, forestry, animal husbandry and fishery, water conservancy and its services, industry, geological survey and exploration, construction, transportation, commerce, catering, material supply and marketing, warehousing, real estate management, intermediary services, consulting services, finance and insurance, etc. , all belong to the category of commercial behavior. To sum up, these industries and fields involve the following industries: manufacturing, processing, construction, transportation, water and electricity, trade, leasing, warehousing, contracting, salvage, publishing, printing, advertising, media, entertainment, catering, brokerage, agency, pawn, service and guarantee. It covers almost all fields such as production, sales, service and culture, and there is a pattern of "no work, no business".