The relationship between commercial law and civil law Both commercial law and civil law are closely related to the adjustment of commodity economy, and they are both private laws. Commercial law makes extensive use of some principles, systems and norms of civil law, and at the same time constantly absorbs some principles, systems and norms of civil law that belong to commercial law. As we all know, civil law is a legal norm to adjust the property relationship and personal relationship between equal subjects. It develops with the development of commodity economy. The property relationship it adjusts mainly refers to the property ownership and circulation relationship, and the personal relationship refers to the personal non-property relationship. All these are in line with Pound's personal interests. Undoubtedly, the interests protected by civil law are personal interests. Commercial law is mainly a commodity exchange rule formed by commercial transaction habits, which can be regarded as a special law of civil law. So the interests it protects are also personal interests.
Civil law is the product of commodity economy. In ancient Rome, commodity exchange was very frequent. People engaged in trading gradually need a * * * to abide by the trading rules, so as to maintain the trading order and ensure the circulation of goods. Thus, the habit of commodity exchange came into being, and then the habit developed into law. This is the origin of civil law. Since the protection of trading interests is the main content of civil law, it must adapt to the requirements of commodity exchange, that is, the independence of personality-the freedom to engage in trading with one's own independent will, the certainty of ownership and the conclusion of contracts.
Commercial law originated in medieval Europe. 1 1 In the 20th century, businessmen set up commercial associations to protect their own interests, and adopted common commercial practices to solve disputes among businessmen. At that time, businessmen were privileged. They have the right to trade some goods that ordinary people don't have. It is in this environment that business practices have been used for a long time and eventually developed into commercial law. Commercial law still protects the interests of commodity traders. Compared with civil law, it only uses more complicated and special rules to achieve its protection purpose. Therefore, the main countries in the civil law system generally believe that commercial law is a special law of civil law, both of which focus on personal interests and overlap and cross in many aspects.
In the compilation system of civil law, the civil law system can be divided into civil and commercial separation and civil and commercial integration. In the view of scholars who advocate the theory of civil and commercial integration, both the latest achievements of commercial law and the existing principles and systems of civil law are important manifestations of civil and commercial integration. The former is the unification theory of "commercialization of civil law" (German scholar Lissel is the representative figure), while the latter is the unification theory of "commercialization of commercial law" (Lin Sen is the representative task in the Republic of China). (1) and the French historian Fernand Braudel compared the image of highly developed commodity economy and simple commodity economy coexisting in the same economic form to "high gear" and "low gear" of economy, which have different characteristics and operating rules. (2) There are several discussions about the relationship between civil law and commercial law:
First, commercial law is a special law of civil law; Second, opposing civil law is a special law of commercial law, but it has not put forward new opinions, hoping that the majority of civil law scholars will study it; Third, "the relationship between civil law and commercial laws and regulations is the relationship between the basic law and the separate laws and regulations that supplement the basic law."
First, commercial law is a special law of civil law. This view holds that "civil law can be divided into general civil law and special civil law." China adopts the principle of civil and commercial integration, and the current general principles of civil law are equivalent to the common law status of civil law, while company law, maritime law and civil law are equivalent to the common law status of civil law. For matters that are stipulated in both common law and special law, the provisions of special law shall prevail. "Generally speaking, commercial law is a special civil law, and both it and the civil law are norms for adjusting civil relations between equal subjects; As for market relations, civil law makes general provisions on civil subjects, civil rights, civil acts and civil remedies, while commercial law makes specific provisions on various commercial organizations and commercial transactions. The former is famous for its universality, stability and principle, while the latter is famous for its technicality, universality and flexibility. This view points out that "the current general principles of civil law are the legislation of civil and commercial integration. Although economic contract law, foreign-related economic contract law and technology contract law are commercial contract laws, they are still special laws of general principles of civil law. Maritime law, company law, negotiable instrument law, insurance law, etc. Are special civil laws. ⑤ The integration of civil and commercial affairs embodies the so-called commercialization of civil law under the condition of modern market economy. "6. Second, it is opposed to saying that commercial law is a special law of civil law. The most convincing argument of this argument is that the mode of "commercial law is the special law of civil law" is an outdated, obsolete and backward mode. The perfect legislative model under the pure commodity economy cannot adapt to the highly developed commodity economy today. In addition, this view also puts forward that internationality is the natural attribute of commercial law, and it is also the remarkable feature of its adjusted market transaction relations and other social relations; After commercial law was incorporated into domestic law, the particularity of the object and method of commercial law adjustment was ignored, and the commercial law was confused with the family's personal property relationship. Its irrationality is not obvious in the case of underdeveloped science and technology, but it is exposed in the new era of world integration and economic globalization. Therefore, it is considered that "a legal department with international adjustment of transaction relations should not become a vassal of adjusting family relations." "⑦ Third, the relationship between civil law and commercial laws and regulations is the relationship between separate laws and regulations in the Basic Law. Professor Wang Liming and others discussed this, which can be summarized as follows:
First of all, there is actually no commercial law department in our legal system. Although due to the deepening of reform and opening up and the development of socialist commodity economy, the legislation on companies, insurance, bills and bankruptcy has been attached importance to and strengthened accordingly, most of these legal norms are to adjust the commodity relationship between equal subjects, so they can be regarded as an integral part of China's civil law. China's civil law, as the basic law to adjust social commodity economic activities, is an abstract legal phenomenon of 10,000 kinds of commodity relations in Qian Qian, while the commercial laws and regulations to adjust commodity economic relations are only the expression of civil law principles in specific fields and the concretization of civil law norms in specific economic activities.
Secondly, "commercial law itself cannot form a departmental legal system, and only the general principles of civil law can be applied. The general principles of civil law, property rights system and bond system have actually made general provisions on important aspects of commodity economic activities, which are also applicable to some problems in commercial laws and regulations. " (2) The relationship between commercial law and economic law is controversial. However, in continental France and common law countries, in countries with commercial codes and countries without commercial codes, the focus of foreign and domestic debates is different. Generally speaking, in foreign countries, the relationship between economic law and other laws is mainly with commercial law. In China, the contradiction between commercial law and economic law is not very prominent. Because western countries have a relatively complete commercial legal system, society is a typical commercial society, and everything has long been commercialized. Even in countries with civil codes, the contradiction between civil and commercial laws is weakened by the commercialization of civil laws. As a new legal system, economic law should break through the division of the old legal departments and recombine the principles derived from the classical commercial law norms into a new whole. In this way, the contradiction between economic law and commercial law in western society is more prominent.
To sum up, we can think that civil law and commercial law adjust social and economic relations horizontally, which are general relations and special relations, while economic law adjusts social and economic relations horizontally and vertically. Although they are independent legal departments, they are not completely unrelated, but should cooperate and assist each other to ensure social and economic development from all aspects of social life. Simply focusing on a certain department law is harmful to the smooth progress of China's reform and opening up.