In order to further ensure the effectiveness of corporate governance mechanism of joint-stock companies, Japan's commercial law was significantly revised at the end of 20001,mainly including further strengthening the functions of supervisors (associations), reducing the requirements of directors' responsibilities and further rationalizing the shareholder representative litigation system. This revision of Japan's commercial law is of great reference value to further improve the corporate governance mechanism in the process of establishing a modern enterprise system in China. [Keywords:] Japanese commercial law; Corporate governance mechanism; The latest amendment of the Japanese Commercial Law (hereinafter referred to as the Commercial Law) on corporate governance mechanism was officially promulgated as Law 1 12 in February 2006, and came into effect in May 2002. In order to further ensure the effectiveness of corporate governance mechanism, this revision of commercial law has been revised and improved from the following three aspects. First, strengthen the functions of supervisors; Second, relax the requirement of reducing directors' responsibilities; The third is the further rationalization of the shareholder representative litigation system. Specifically, the main measures to strengthen the functions of supervisors are as follows: ① Clearly stipulate the supervisors' obligation to attend the board meeting and express their opinions (Article 260-3 1 of the Commercial Law); ② The term of office of the supervisor is extended from three years to four years (Article 273 1 of the Commercial Law); (3) Legalization of supervisors' right to express resignation opinions (Article 275-3-2 of Commercial Law); (4) The increase of the number of supervisors outside the company and the strictness of its requirements (Article 18 1 of the Special Case Law of Commercial Law); ⑤ The Board of Supervisors has newly established the right to consent to the appointment of supervisors and the right to propose topics (Paragraph 3 of Article 18 of the Special Case Law of Commercial Law). The main measure to alleviate the requirement of reducing directors' liability is to establish a new system that can be exempted by special resolution of shareholders' meeting (Article 266, paragraph 7-23, and Article 280 of the Commercial Law). The measures to further rationalize the shareholder representative litigation system mainly include the following points: ① The time limit for supervisors to review and judge is changed from 30 days to 60 days (Article 267, paragraph 3 of the Commercial Law); (2) It is clearly stipulated that the lawsuit to investigate the director's responsibility can be settled (Paragraph 4-7 of Article 268 of the Commercial Law); ③ The supervisor's consent right is stipulated for the company's application to support the defendant's directors to participate in litigation (Article 268, paragraph 8 of the Commercial Law). I. Strengthening the functions of supervisors First of all, the revision of the commercial law clearly stipulates the obligation of supervisors to attend board meetings and the obligation to state their opinions. Before the amendment, the Commercial Law stipulated that "supervisors may attend the board meeting as nonvoting delegates and state their opinions" (Article 260-3 1 of the Commercial Law before the amendment). According to this regulation, it is generally believed that supervisors, as people who have the obligation to supervise and care for the implementation of the company's business, naturally have the obligation to attend the board meeting and express their opinions. This revision of the Commercial Law clarifies this obligation of the supervisor, and the paragraph 1 of Article 260 ter is amended as "The supervisor shall attend the board meeting and state his opinions when necessary". In order to further clarify the responsibilities of supervisors and ensure the fair and effective implementation of the company's business. If the supervisor fails to perform this obligation without justifiable reasons, he shall bear the necessary responsibility for violating the duty of care. If the company or a third party suffers losses as a result, it shall be liable for damages (Articles 277, 280 and 266 ter of the Commercial Law). Secondly, the revision of the commercial law has made clear legal provisions on the right of supervisors to express their opinions on resignation, and realized the legalization of this right. Before the amendment, the commercial law only stipulated the right of supervisors to express their opinions on their appointment and dismissal at the shareholders' meeting. This provision is also a measure to clarify and strengthen the position of supervisors. However, in order to prevent the supervisors from resigning due to the pressure of directors, it is necessary to further strengthen and consolidate the position of supervisors. Therefore, this revision of the Commercial Law clearly stipulates that "a person who resigns as a supervisor may attend the shareholders' meeting held for the first time after his resignation and state the purpose and reasons for his resignation" (Article 275-3-2 of the Commercial Law 1). And in order to ensure this opportunity for the resigned supervisor, the Commercial Law further stipulates that the company shall notify the resigned supervisor of its intention to convene a general meeting of shareholders (Paragraph 2 of the same Article). Of course, other supervisors can also state their opinions (paragraph 3 of the same article). Thirdly, the revision of the commercial law extended the term of office of supervisors, increased the number of independent supervisors outside the company, and made strict provisions on the requirements of independent supervisors. Before the amendment, the term of office of the supervisor stipulated in the Commercial Law was 3 years, and this amendment extended the term of office of the supervisor to 4 years ② (Article 273 1 of the Commercial Law). Before 1993, the commercial law stipulated that the term of office of supervisors was two years. 1993 the term of office was extended from two years to three years in the revision of the commercial law, and this revision was extended from three years to four years. This coherent measure aims at continuously strengthening the identity protection of supervisors and further ensuring the effectiveness of supervisors' supervision. Specifically, the special case law of Japan's commercial law before the amendment requires that 1 or more of the three or more supervisors of a large company specified in this law should be the directors or dominators of the company or its subsidiaries or other commercial law users within five years before taking office (Article 18 of the special case law of commercial law before the amendment 1). In order to further strengthen the independence of supervisors relative to the board of directors and strengthen the function of supervisors to supervise the company's operation and implementation, the revision of the commercial law increased the number of independent supervisors from 1 person to more than half of the total number of supervisors, and changed the requirements of independent supervisors from the original "five years before taking office" to a simple "before taking office", thus achieving strict requirements. Finally, the revision of the commercial law has newly established the right of consent of the board of supervisors to the selection of supervisors and the right to propose topics. Before the amendment, the commercial law only set up the appointment of accounting supervisors, giving the board of supervisors the right to agree and propose issues. That is, "when a director submits a proposal to the shareholders' meeting, he shall obtain the consent of the board of supervisors" (Article 3, paragraph 2, of the Special Case Law of Commercial Law), "The board of supervisors may require the director to make the appointment of accounting supervisors as the topic of the shareholders' meeting through its resolution, or may make a proposal for the appointment of accounting supervisors through its resolution" (Paragraph 3 of the same article). The selection of supervisors only stipulates that supervisors can present their opinions at the shareholders' meeting (Article 275 ter of the Commercial Law). In order to prevent directors from arbitrarily arranging the personnel of supervisors and further strengthen and consolidate the position of supervisors, it is necessary to adopt the same legal provisions for the appointment of supervisors as for the appointment of accounting supervisors. Therefore, this revision of the Commercial Law applies mutatis mutandis the above provisions on appointing accounting supervisors, and at the same time gives the board of supervisors the right to agree to appoint supervisors and the right to raise issues (Article 18, paragraph 3, of the Special Cases Law of the Commercial Law). (4) 2. According to the current commercial law of Japan, directors' exemption from corporate responsibility requires the consent of all shareholders (Article 266, paragraph 5, Commercial Law). In this way, in the case of large companies such as listed companies, it is almost impossible to exempt directors from their responsibilities to the company. However, in the increasingly fierce international competition, in many cases, the operators of enterprises need to take certain risks and make bold business judgments. However, according to the provisions of the commercial law, as long as the operator has a slight fault afterwards, he will bear a high liability for damages. Considering this consequence, operators will inevitably dare not operate boldly, which is very unfavorable to the operation of enterprises. In order to solve this realistic contradiction, Japan's commercial law has adopted the attitude of appropriately reducing directors' responsibilities from two aspects by adding clauses. On the one hand, this revision of the Commercial Law stipulates that as long as the directors perform their duties in good faith and have no gross negligence, they can be exempted from their responsibilities by a special resolution of the shareholders' meeting or a resolution of the board of directors based on the company's articles of association, to the extent that the damages that the directors should bear are less than the four-year remuneration of the directors (Article 226, paragraph 7- 18 of the Commercial Law). On the other hand, taking into account the advantages of independent directors outside the company, in order to make it easier for the company to ensure management talents, this revision of the commercial law clearly stipulates that the company can conclude a contract with independent directors through the articles of association, with the content that the directors will not bear the responsibility beyond the amount agreed by both parties in advance (Article 266 of the Commercial Law 19 ~ 23). It should be noted that this revision of the commercial law not only stipulates that the special resolution of the shareholders' meeting can appropriately reduce the director's responsibility, but also stipulates that the resolution of the board of directors can reduce the director's responsibility. This is because in a joint-stock company composed of many shareholders, it is quite difficult to convene an extraordinary shareholders' meeting just to exempt the directors from their responsibilities, whether considering the cost or the convening procedure. If a resolution cannot be made until the regular shareholders' meeting, whether the directors can be exempted from the liability for damages will be in a long-term uncertain state, which will be extremely unfavorable to the company's operation and even seriously affect the normal operation of the company. Therefore, in order to change this unfavorable situation, it is necessary to establish a system of exempting directors from liability through resolutions of the board of directors that can be convened at any time. Moreover, according to the provisions of the articles of association, it is essentially based on the authorization of shareholders (because the change of the articles of association requires a special resolution of the general meeting of shareholders). It is reasonable for a collegiate organization composed of professional directors, that is, the board of directors, to judge whether the directors who are liable for damages should be exempted from their responsibilities first from the perspective of whether their business judgment is appropriate. In addition, as a safeguard measure of the above-mentioned director's liability exemption system, the revision of the commercial law has been strengthened and improved from the following two aspects. First of all, this revision of the Commercial Law stipulates that when a director is relieved of his responsibilities through a special resolution of the shareholders' meeting, he shall obtain the consent of the supervisor (meeting) on the relevant proposal put forward by him (Article 266, paragraph 7- 1 1 of the Commercial Law). Similarly, when the board of directors decides to exempt directors from their responsibilities, it must first be stipulated in the articles of association. Therefore, the proposal to amend the Articles of Association to be submitted to the shareholders' meeting and the relevant resolution to be submitted to the board of directors shall be formally submitted after the approval of the supervisor (meeting) (Article 266 12 ~ 18 of the Commercial Law). In addition, when a company signs a contract with an independent director to reduce its responsibilities, it also needs to be stipulated in the company's articles of association. Therefore, when submitting a proposal to amend the Articles of Association to the shareholders' meeting, the consent of the supervisor (meeting) shall be obtained (Article 266 of the Commercial Law, paragraphs 19 ~ 23). Secondly, this revision of the Commercial Law stipulates that when the shareholders' meeting exempts directors from liability by special resolution, the fact that the liability occurred, the calculation basis of the exempted amount and the reasons for exemption shall be publicized at the shareholders' meeting (Paragraph 7 of Article 266 of the Commercial Law ~ 1 1). After the board of directors has made a resolution to exempt directors from their responsibilities, in addition to the above matters, it is also necessary to announce or inform shareholders of the purpose that they can put forward within a certain period (not less than one month) if they have objections to the exemption. Moreover, if more than 3% of the shareholders with voting rights raise objections, the board of directors shall not adopt a resolution to exempt the directors from their responsibilities (Article 266, paragraph 12 ~ 18 of the Commercial Law). In addition, this revision of the Commercial Law stipulates that after independent directors assume corresponding responsibilities according to the contract concluded with the company, they should also disclose the facts as the reasons for their responsibilities, the basis for calculating the exemption amount and the reasons for their exemption at the first general meeting of shareholders (Article 266 of the Commercial Law, paragraphs 19 ~ 23). Three. Further Rationalization of Shareholder's Representative Litigation System The shareholder's representative litigation system stipulated in Japanese commercial law is an important system for shareholders to hold directors accountable for the company, which has played an increasingly important role in recent years. In order to further straighten out this system, this revision of the commercial law has revised and improved the shareholder representative litigation system from the following aspects according to Japanese judicial practice experience and rational thinking of commercial law. First of all, with the internationalization and diversification of business activities, the business judgment of operators is becoming more and more complex and professional. Therefore, in order to allow the supervisors who have accepted the shareholders' request and investigated the directors' responsibilities through litigation on behalf of the company to have enough time to make prudent judgments on the increasingly complex and highly specialized directors' business activities, this revision of the Commercial Law extends the time limit for the supervisors' deliberation and judgment from the original 30 days to 60 days, that is, it is clearly stipulated that if the company does not file a lawsuit within 60 days from the date of the shareholders' request, the requesting shareholders can directly file a lawsuit for the company's interests (Article 267, paragraph 3, Commercial Law). In addition, according to the provisions of the current commercial law, shareholders or companies can request to participate in the litigation when the litigation case of investigating the directors' responsibility for the company is under trial (Article 268, paragraph 2, of the Commercial Law), but as an opportunity for the company to know about the litigation, the current commercial law only stipulates the obligation of shareholders who file representative litigation to inform the company about the litigation (Article 268, paragraph 3, of the Japanese Commercial Law). In order to further improve the shareholder representative litigation system and establish a notification mechanism for shareholders and other shareholders to know the trial situation in a timely and accurate manner when the company files a lawsuit, this revision of the Commercial Law clearly stipulates that when the company is informed of the shareholder representative litigation, or the company files a lawsuit to investigate the director's responsibility, it shall announce or notify the shareholders. It is the company's obligation to announce the lawsuit or send a notice to the shareholders (Paragraph 4 of Article 268 of the Commercial Law). Secondly, before the amendment, the commercial law did not stipulate whether the litigation (mainly shareholder representative litigation) to investigate the director's responsibility can be reconciled. Therefore, whether this kind of lawsuit can be reconciled has always been the focus of academic debate, and the negative view is more powerful. In the actual court trial, as a rapid and appropriate means of dispute resolution, there are also cases of litigation settlement. However, there are objections to its effectiveness in judicial interpretation. This revision of the commercial law boldly ruled out this objection to interpretation, arguing that actively recognizing litigation settlement is not only in the interests of the company and shareholders, but also conducive to reducing litigation costs. Therefore, the amendment to the Commercial Law clearly stipulates that the lawsuit can be settled under the condition of strictly observing certain procedures in line with the interests of the company and shareholders (paragraphs 5 to 7 of Article 268 of the Commercial Law). It should be noted that when the company is a party to litigation settlement, no special procedures or the consent of all shareholders are required. Because shareholders can learn about the trial through litigation announcements or notices, the opportunity to participate in litigation is always guaranteed. On the contrary, when the company is not a party to the litigation settlement, that is, the litigation belongs to the shareholder representative litigation and the company does not participate in the settlement, it is necessary to protect the interests of the company as the subject of rights. Therefore, this revision of the commercial law stipulates that the court should inform the company of the settlement, and if there is any objection to the settlement, it should urge the company to propose it within two weeks. If the company fails to raise an objection to the settlement in writing within the prescribed time limit, it can be regarded as that the company has approved the settlement (Paragraph 6 and Paragraph 7 of Article 268 of the Commercial Law). Finally, in the shareholder representative litigation, whether the company can participate in the litigation to support the defendant directors has always been a controversial issue, and there are two opposing views. In the trial practice, some cases gave a positive answer to this. On the premise of affirmation, this revision of the Commercial Law stipulates that when a company requests to participate in shareholder representative litigation in order to support the defendant's directors, it shall obtain the consent of the supervisor (meeting) (Paragraph 8 of Article 268 of the Commercial Law). Of course, the approval of the company's request to participate in litigation by the supervisor does not mean that the company can naturally participate in litigation, but whether the company's request meets the conditions for participating in litigation stipulated in the Civil Procedure Law, and the court will make a judgment according to the relevant provisions of the Civil Procedure Law.
As a party to litigation settlement, the company can settle without special procedures or the consent of all shareholders. Because shareholders can learn about the trial through litigation announcements or notices, the opportunity to participate in litigation is always guaranteed. On the contrary, when the company is not a party to the litigation settlement, that is, the litigation belongs to the shareholder representative litigation and the company does not participate in the settlement, it is necessary to protect the interests of the company as the subject of rights. Therefore, this revision of the commercial law stipulates that the court should inform the company of the settlement, and if there is any objection to the settlement, it should urge the company to propose it within two weeks. If the company fails to raise an objection to the settlement in writing within the prescribed time limit, it can be regarded as that the company has approved the settlement (Paragraph 6 and Paragraph 7 of Article 268 of the Commercial Law). Finally, in the shareholder representative litigation, whether the company can participate in the litigation to support the defendant directors has always been a controversial issue, and there are two opposing views. In the trial practice, some cases gave a positive answer to this. On the premise of affirmation, this revision of the Commercial Law stipulates that when a company requests to participate in shareholder representative litigation in order to support the defendant's directors, it shall obtain the consent of the supervisor (meeting) (Paragraph 8 of Article 268 of the Commercial Law). Of course, the approval of the company's request to participate in litigation by the supervisor does not mean that the company can naturally participate in litigation, but whether the company's request meets the conditions for participating in litigation stipulated in the Civil Procedure Law, and the court will make a judgment according to the relevant provisions of the Civil Procedure Law.
As a party to litigation settlement, the company can settle without special procedures or the consent of all shareholders. Because shareholders can learn about the trial through litigation announcements or notices, the opportunity to participate in litigation is always guaranteed. On the contrary, when the company is not a party to the litigation settlement, that is, the litigation belongs to the shareholder representative litigation and the company does not participate in the settlement, it is necessary to protect the interests of the company as the subject of rights. Therefore, this revision of the commercial law stipulates that the court should inform the company of the settlement, and if there is any objection to the settlement, it should urge the company to propose it within two weeks. If the company fails to raise an objection to the settlement in writing within the prescribed time limit, it can be regarded as that the company has approved the settlement (Paragraph 6 and Paragraph 7 of Article 268 of the Commercial Law). Finally, in the shareholder representative litigation, whether the company can participate in the litigation to support the defendant directors has always been a controversial issue, and there are two opposing views. In the trial practice, some cases gave a positive answer to this. On the premise of affirmation, this revision of the Commercial Law stipulates that when a company requests to participate in shareholder representative litigation in order to support the defendant's directors, it shall obtain the consent of the supervisor (meeting) (Paragraph 8 of Article 268 of the Commercial Law). Of course, the approval of the company's request to participate in litigation by the supervisor does not mean that the company can naturally participate in litigation, but whether the company's request meets the conditions for participating in litigation stipulated in the Civil Procedure Law, and the court will make a judgment according to the relevant provisions of the Civil Procedure Law.
As a party to litigation settlement, the company can settle without special procedures or the consent of all shareholders. Because shareholders can learn about the trial through litigation announcements or notices, the opportunity to participate in litigation is always guaranteed. On the contrary, when the company is not a party to the litigation settlement, that is, the litigation belongs to the shareholder representative litigation and the company does not participate in the settlement, it is necessary to protect the interests of the company as the subject of rights. Therefore, this revision of the commercial law stipulates that the court should inform the company of the settlement, and if there is any objection to the settlement, it should urge the company to propose it within two weeks. If the company fails to raise an objection to the settlement in writing within the prescribed time limit, it can be regarded as that the company has approved the settlement (Paragraph 6 and Paragraph 7 of Article 268 of the Commercial Law). Finally, in the shareholder representative litigation, whether the company can participate in the litigation to support the defendant directors has always been a controversial issue, and there are two opposing views. In the trial practice, some cases gave a positive answer to this. On the premise of affirmation, this revision of the Commercial Law stipulates that when a company requests to participate in shareholder representative litigation in order to support the defendant's directors, it shall obtain the consent of the supervisor (meeting) (Paragraph 8 of Article 268 of the Commercial Law). Of course, the approval of the company's request to participate in litigation by the supervisor does not mean that the company can naturally participate in litigation, but whether the company's request meets the conditions for participating in litigation stipulated in the Civil Procedure Law, and the court will make a judgment according to the relevant provisions of the Civil Procedure Law.
Re-study on the Legislative Model of Commercial Law in China
Following the Contract Law, the enactment of the Property Law and the Civil Code has become the goal of China's future civil legislation. At present, some scholars have put forward suggestions on the draft property law and the outline of the draft civil code. However, in the face of the current situation of China's civil and commercial legislation, before the promulgation of the Civil Code, we must carry out rigorous theoretical combing, demonstration and overall legislative planning on the legislative model of civil and commercial law, otherwise the formulation of the Civil Code will not only have no due influence and function, but will reflect the naivety of China's civil and commercial law research, thus failing to live up to the new era.
First, a summary of China's civil and commercial legislative style research and legislative practice.
"If the legislative style of civil and commercial relations is regarded as a theoretical category, then the relative frame of reference for the establishment and application of this category is actually limited to the legislation of civil law system since modern times." (Note: Gao Zaimin: Commercial Law with Commercial Law Ideas and Concepts, Shaanxi People's Publishing House, 2000, p. 103. Civil and commercial legislation in civil law countries can be roughly divided into two styles: civil and commercial integration and separation. The so-called integration of civil and commercial affairs means "unifying civil and commercial legislation without distinguishing between civil and commercial affairs, and commercial provisions are either incorporated into the Civil Code or promulgated separately". (Note: Some scholars believe that there are both civil codes and a large number of separate commercial laws in the form of legal sources, which is a compromise system between "separation" and "integration". ) This is represented by Switzerland and Russia. (Note: Zhang: On Commercial Law, Taiwan Province Sanmin Publishing House, 1980, p. 50. The so-called civil and commercial separation system refers to a system in which civil and commercial affairs are legislated separately, and the commercial code and the civil code are formulated separately, so that the civil code and the commercial code can exist independently. (Note: Zhang: On Commercial Law, Taiwan Province Sanmin Bookstore, 1980, p. 50. ) This style is represented by Germany and France.
Due to the comprehensive effect of traditional economic, political, ideological and cultural factors, there was no civil and commercial law with the nature of private law in the modern sense in ancient China, so China scholars first studied the style of civil and commercial legislation in the late Qing Dynasty. The civil and commercial legislation in the late Qing Dynasty imitated the German legal system and adopted the system of separation of civil and commercial affairs. After two commercial law conferences, the draft commercial law was finally formed, but it was aborted because of the outbreak of the Revolution of 1911.
After the founding of New China, under the planned economy system, commercial law disappeared as a departmental law, and the issue of civil and commercial legislative style could not be regarded as a legal research issue. With the development of China's economy, the study of commercial law has gradually revived, especially after the goal of establishing a market economy system and a socialist country with legal system has been established, civil and commercial law scholars have begun to pay attention to civil and commercial legislation. Among them, scholars who advocate the integration of civil and commercial affairs are based on the following reasons: 1 At present, there is no independent merchant class in social associations, and commercial activities have now become general civil activities. There is no need to distinguish between civil law and commercial law. 2. France and Germany, which adopt the separation of civil and commercial law, largely ignore the content of commercial code, and their commercial code has been fragmented. In order to adapt to the development of commodity economy, the integration of civil and commercial affairs has become a development trend. 3. Even in countries where civil and commercial acts are separated, it is difficult to establish strict boundaries between civil and commercial acts, and the coexistence of civil code and commercial code will cause difficulties and confusion in the application of law. 4. The development of commodity economy enriches and expands the connotation of civil law. 5. Advocating the separation of civil and commercial affairs will continue the dispute between civil law and economic law. 6. Advocating the separation of civil and commercial affairs is not conducive to unifying and standardizing market economic relations. 7. It is not advisable to advocate the separation of civil and commercial affairs and formulate a separate commercial code, because there are no conditions to respond in legal practice, theoretical concepts and legal cultural traditions. (Note: For the above contents, please refer to Huang Rongsen: "Integration of Civil and Commercial Affairs and Separation of Civil and Commercial Affairs-Rethinking China's Commercial Legislation Mode", Journal of Guangxi Normal University, No.2,1999; Qian: "Market Economy and the Concept of Civil Law", Chinese and Foreign Law No.5,1994; Liang Huixing: General Introduction to Civil Law, Law Press, 1996, p. 1 1. )
Occasionally, some scholars advocate the formulation of commercial code and the implementation of the legislative style of separation of civil and commercial affairs. (Note: Liang Huixing: General Civil Law, Law Press, 1996, p. 1 1. The reasons on which it is based are summarized as follows: 1. Judging from the process of China's economic system reform (from the germination of China's commodity economy to the establishment of a market economic system), the separation of civil and commercial affairs is a legislative model to meet the needs of market economic development. 2. Judging from the actual legislative situation in China, the separation of civil and commercial law is conducive to the development of civil and commercial law, so as to establish a legal system that meets the needs of market economy development as soon as possible. 3. From the nature of commercial law, the characteristics of commercial transaction relationship, the characteristics of commercial law and the history and development of the legislative style of separation of civil and commercial affairs, the legislative style of separation of civil and commercial affairs should be adopted. 4. The legislative style of "separation of civil and commercial affairs" is most beneficial to show the difference between commercial subject and civil subject, commercial behavior and civil behavior, and truly reproduce the de facto independent state of civil and commercial law in legislative form, so as to achieve the unity of form and practice. 5. "Separation of civil and commercial affairs" is not only the result of people's deeper understanding of the laws and characteristics of economic activities, especially commercial activities, but also one of the signs of the improvement of legal technology and methods. 6. The formation of commodity economic relations is the material condition for the emergence of commercial law, and the independent existence and development of commodity economy is the objective basis for forming an independent commercial law system. (Note: See the following papers for the above contents: Huang Rongsen: The Integration of Civil and Commercial Affairs and the Separation of Civil and Commercial Affairs-Rethinking on China's Commercial Legislation Model, Journal of Guangxi Normal University, No.2,1999; Liu Kaixiang: On the Nature, Basis and Characteristics of Commercial Law, Modern Law No.5,1997; Wang Chunjie: Research on Legislative Forms of Commercial Law in China, Research on Legal Business, No.6, 1997. )
Second, reflect on the current situation of civil and commercial legislation research in China.
(A) the style of civil and commercial legislation is not just a legislative technical issue.
The civil and commercial legislation system involves at least the following important issues:
1. The relationship between civil law and commercial law. The relationship between civil and commercial law is a deep logical problem in civil and commercial legislation. Civil law and commercial law come down in one continuous line, that is, they are both rooted in commodity economy, but they are different, and there are differences between them in terms of adjustment objects, adjustment methods, pursuit of value orientation, specific legal system, legislative technology and so on. The understanding of the relationship between civil and commercial law directly affects the views on the legislative style of civil and commercial law, which has been noticed by scholars and taken as the basic point of research. (Note: See He Xu. In the future, the study of China's civil and commercial legislation style should be combined with the actual situation of China's economic development, and theoretically explore the relationship between civil law and commercial law.
2. Economic and political system issues. Civil law is the product of simple commodity economy, and its specific system embodies strong family ethics and moral value orientation; Commercial law is the product of market economy (only when the relationship between commodity economy reaches a relatively developed or fairly developed level will there be a hotbed of independent commercial law), so the specific system of commercial law embodies the value orientation of pursuing efficiency and profit. Under the background of the establishment and development of China's market economy, the study of civil and commercial legislation style must focus on promoting and adapting to the establishment and development of the market economy system (such as shaping qualified market subjects for the market economy, guiding and standardizing market behavior, and maintaining market order), and then promote the thorough and fundamental transformation of the political system that is adapted to the deep-rooted small-scale peasant economy and natural economy to the political system that matches the market economy, that is, the choice of civil and commercial legislation style and the economic and political transformation of China. It can be seen that the choice of civil and commercial legislative style has a great relationship with China's economic and political system.
3. How to treat traditional culture? In recent years, the modern "neo-Confucianism", the theory of local resources (post-modernism) and the theory of "modernization" appeared in China academic circles, which reflected the subject of our country's reflection on traditional culture, involving all aspects of China's superstructure, and would naturally be reflected in legal research. The choice of civil and commercial legislative style is a reflection of how to treat traditional culture in civil law research. The choice of civil and commercial legislative style reflects the attitude towards China traditional culture from one side. China's long feudal society formed a legal and cultural tradition of attaching importance to commerce and restraining it. Businessmen have no proper social status, and the reasonable rules and proper order of business communication have never been formed, which is incompatible with the market economy and runs counter to it. Obviously, the choice of the civil and commercial integration system (including what some scholars call the "one China compromise" system) reflects the inheritance of China's traditional culture both subjectively and objectively, which cannot be said to be a promotion or even an obstacle to the formation of commercial subjects required by the market economy. On the contrary, choosing the legislative style of separation of civil and commercial law can promote the reform of legal tradition from the system, which is the changing process of people's legal consciousness and concept from the outside to the inside and the exogenous model of civil and commercial law modernization. (Note: Gong Pixiang: Research on the Modernization of Legal System, Nanjing University Press, 1995, p. 16. )
(B) Research methods of civil and commercial law
Since the founding of New China, the study of civil and commercial law in China has been an accumulation process from scratch. In the process of research, besides the method of class analysis, jurists can only and must resort to the method of positivism. The adoption of this method provides a clear explanation of basic concepts, theories and knowledge for the start of legislation, judicature and law enforcement in China, and adapts to the needs of China's economic life and legal situation to a certain extent. However, as the famous jurist Bodenheimer said, "Positivism tends to separate law from psychological, ethical, economic and social foundations, which makes us misunderstand the degree of autonomy and self-sufficiency that the legal system can achieve." (Note: [America] E. Bodenheimer, translated by Deng Zhenglai: Jurisprudence, Philosophy of Law and Legal Method, China University of Political Science and Law Press, 1997. Positivism has its inherent disadvantages of focusing only on empirical research, such as focusing on specific institutional research and interpretation of laws and regulations, while ignoring value thinking, which is a huge obstacle to the further study of civil law, because "a good departmental jurist should have the thinking of philosophy of law" (Note: Zhu: Summary of the Symposium on Where Jurisprudence Goes, Research on Law and Commerce, 2000, p. 65438+. ) and "the influence of civil law system on philosophy is particularly open". (Note: [America] Allen Watson: Evolution and Formation of Civil Law System, translated by Li Jingbing, China University of Political Science and Law Press, 1997, p. 12 0. The research method of positivism not only makes our contemporary civil and commercial law research from scratch, but also makes our research on civil and commercial law basically stay on the explanation and comment of Roman law and foreign national law system since Roman law, old China civil law system and its theoretical theories. (Noe: Xu Yuan: On the Revolution of Civil Law, Social Science No.2, 1997, p. 38. ) This is manifested in the choice of civil and commercial legislation style, which can not break through the research results in the late Qing Dynasty and the Kuomintang period as a whole (Noe: Xu: On the Modernization of Commercial Law in China, No.2 Shandong Law, 1999, p. 39. This phenomenon is thought-provoking.
Third, the choice of civil and commercial legislation style in China-separation of civil and commercial.
(A) from the typical case empirical analysis of the necessity of separation of civil and commercial.
Since the phenomenon of "Wang Hai" appeared in 1995, it has caused extensive controversy and discussion in the society. Debate on the phenomenon of "Wang Hai" in the legal circle