Business norms and "general principles of business"
(1) Contents and legislative examples of commercial norms.
Commercial law in a general sense refers to the sum of legal norms regulating commercial relations. Because the definition of business or business relationship is the basis of constructing the concept, rules and system of commercial law, the study of commercial norms should start with the understanding of business. According to Blake's legal dictionary, "commerce refers to the exchange of commodities, raw products or any kind of commodities." Webster's New International Dictionary says that "commerce refers to the exchange or sale of goods". The author thinks that these definitions are mainly aimed at classical commercial times. With the rapid development of modern social economy, the scope and types of business are getting wider and wider, forming a situation of "no business without work", and the connotation and extension of business have undergone tremendous changes. All profit-making transactions can be described as "business" in law. According to the general theory of academic circles, the specific types of modern "business" include: first, the seller, that is, the "inherent business", refers to the act of directly trading goods to obtain profits; Secondly, "auxiliary business" refers to the business activities aimed at trading goods through indirect media, which are actually commercial activities that assist the inherent business, such as goods transportation, warehousing, agency, intermediation and brokerage. Third, although it does not have the purpose of trading goods directly or indirectly, its behavior nature is closely related to the inherent merchants and auxiliary merchants, providing them with operating conditions such as financing, trust, processing, contracting and publishing. Scholars call it "the third kind of businessman". Fourth, business activities only related to the third type of business, such as advertising, personal and property insurance, catering and entertainment, tourism services, information consultation, etc. , known as the "fourth business". Business in the modern sense refers to all profit-making activities or undertakings engaged by all profit-making subjects.
In the commercial legislation of all countries in the world, there are mainly two legislative modes: civil and commercial integration and civil and commercial separation. The separation of civil and commercial law is to formulate a separate commercial code from the civil code and form a relatively independent legal system on this basis. More than 40 countries, including France, Germany, Japan, Belgium and South Korea, have formulated commercial codes. Under the legislative system of civil and commercial integration, commercial law is only a special law of civil law, and there is no formal commercial code. It is just a single commercial law and commercial law rules scattered in civil law and other departmental laws and precedents. Looking at the legislative cases of countries around the world, in countries that adopt the separation of civil and commercial affairs, the German commercial code is divided into five parts: the first part is the identity of a businessman, which consists of seven chapters: businessman, business registration, business name, manager's right and agency, business assistant, business apprentice, agent and business intermediary; The second part is the company and dormant partnership, including three chapters: unlimited company, joint venture company and dormant partnership; The third part is commercial accounts, which consists of five chapters: provisions for all businessmen, supplementary provisions for joint ventures, supplementary provisions for registered cooperatives, supplementary provisions for insurance undertakings, submission of private accounts to the Committee and submission of accounts to the Advisory Committee; The fourth part is commercial behavior, which consists of six chapters: general principles, commercial transactions, brokerage business, freight business, transportation agency business and warehousing business; The fifth part is maritime business, which will be released separately. It does not involve any negotiable instrument law, bankruptcy law, insurance law, and does not stipulate limited companies, cooperatives, securities and other related contents. The French Commercial Code covers merchants, merchant accountants, commodity exchanges, brokers, pledge and brokerage dealers, evidence of business conduct, bills of exchange and promissory notes, commercial prescription and commercial courts. Japan's commercial code adopts the system structure of general principles, companies, commercial acts and maritime affairs, and stipulates the contents of company law, negotiable instruments law and maritime law, as well as commercial acts such as buying and selling, interactive calculation, anonymous partnership, intermediary business, brokerage business, contracted transportation and entrusted insurance, but it does not involve bankruptcy law. The Macao Commercial Code consists of four volumes, namely, General Rules for Operating Commercial Enterprises, Operation of Joint Ventures and Cooperation among Enterprises, External Activities of Enterprises and Debt Securities. From the legislation of the above countries (regions), we can see that the content of commercial law is very complicated, and the content of legal provisions in different countries is very different. Commercial law has no specific and clear legal boundaries. Without mature legislative experience for reference, it seems premature to talk about the formulation of general commercial rules and even commercial codes in China.
(2) Various opinions on commercial legislation and current legislative practice.
Domestic academic circles have the following opinions on the form of commercial legislation:
1. Those who advocate the formulation of commercial codes, such as Professor Xu. This proposition is mainly based on the consideration of perfecting the commercial law system, ensuring the unification of commercial law and embodying the independent value of commercial law. This is a typical idea of separation of civil and commercial affairs, which violates the legislative tradition of the integration of civil and commercial affairs in China and lacks a response to the reality of China, and has been rejected by most scholars.
2. Advocating the formulation of general principles of commerce, Jiang Ping, Wang, and many other scholars hold this view. The reasons mainly include: first, give play to its leading role in order to collect the outline and broaden our horizons; Secondly, due to the limitation of the nature of the civil code itself, its content can not be expanded indefinitely, let alone replace the commercial law and form a situation of "centralization of private law"; Third, the necessity of perfecting the commercial law system; Fourth, the requirement of the unification of market and legal system. [1] Mr. Jiang Ping is also in favor of formulating general principles of commerce, which is simple and can fully reflect the characteristics of commercial law. [2] However, scholars have more or less differences on the content of the general principles of commerce: for example, Mr. Jiang Ping advocates that the general principles of commerce should include the principles of commercial activities and commercial rights (including commercial names, commercial credits, commercial secrets, etc.). ), commercial subjects and basic forms of commercial enterprises, affiliated enterprises, chain enterprises, commercial account books, commercial behaviors and commercial agency (including internal manager agents and various external sales agents, such as exclusivity). [3] Some scholars also suggest that the general principles of commerce should include seven chapters: basic principles, commercial subjects, commercial acts and agents, trade names, commercial registration, general principles of commercial liability and supplementary provisions. [4] This is narrower than the last one; Professor Wang believes that the general principles of commerce are only a law about the general rules of commercial subjects. [5]
3. Some people think that commercial law still exists in the form of special commercial law, which is advocated by civil law scholars such as Mr. Liang Huixing and Professor Wang Liming, but there are also a few commercial law scholars who hold this view. For example, Professor Zhao believes that "taking the Civil Code as the basic law and a series of special laws is the rational choice of China's commercial legislation form" [6] The author agrees with this view. Based on China's legislative tradition, the relationship between civil law and commercial law, and legislative technology, the current system is working well and there is no need for major changes.
Generally speaking, the content of commercial law includes two parts: organization law and behavior law. The former mainly involves commercial subjects, commercial registration, commercial account books, commercial agency and so on. The latter mainly includes negotiable instrument law, maritime law, insurance law and securities law. In my opinion, no matter how the specific scope of commercial law is defined, company law, negotiable instrument law, maritime law, insurance law, securities law, bankruptcy law and so on are very difficult. Find the content standards involved in * * *, thus abstracting the universally applicable essential features and rules of * * * *. Therefore, it will be extremely time-consuming and laborious to formulate an uncritical commercial code. However, in reality, something surprising happened, that is, the Commercial Regulations of Shenzhen Special Economic Zone (hereinafter referred to as Shenzhen Commercial Regulations) promulgated by Shenzhen on June 30th, 1999 and revised on April 6th, 2004. The Ordinance is divided into eight chapters ***65 articles, Chapter I General Provisions, Chapter II Merchants, Chapter III Commercial Registration, Chapter IV Merchants' Names and Commercial Transfers, Chapter V Commercial Account Books, Chapter VI Commercial Practitioners, Chapter VII Agents and Chapter VIII Supplementary Provisions. This is actually a moderate general business principle. Since its promulgation, there have been some debates in academic circles, but there are also many people who praise it. For example, some scholars believe that this is a useful exploration of China's commercial legislation. [7] At the recent seminar on the legal framework of modern market circulation system held by the Ministry of Commerce, it was reported that it was necessary to formulate general business rules. Indeed, based on the prominent position of Shenzhen Special Economic Zone in China, it is impossible for it to be the first to formulate commercial laws and regulations without causing a sensation. However, if we advocate taking this opportunity to formulate general business rules applicable to the whole country, there are many problems to be discussed. Moreover, as far as its system and content are concerned, it is based on the principled provisions of the Commercial Organization Law. The full text has only 65 articles, and the legislation is too rough and the operability can be imagined. The author believes that whether to formulate general principles of commerce is a problem involving legal system and legislative technology, which needs a lot of analysis and demonstration. Based on China's current legislative tradition and theoretical basis, it is advisable to abandon the formulation of general principles of commerce.