First, the difference of value orientation of commercial law.

The value orientation of commercial law is a summary of the purpose of commercial law from the height of legal philosophy, and it is an ideal goal that commercial law should achieve when adjusting commercial social relations, so it is one of the important basic theoretical problems of commercial law. In recent years, many scholars in China have begun to pay attention to the value orientation of commercial law, and the related achievements have greatly promoted the research on the basic theory of commercial law in China. For example, from the perspective of comparison between commercial law and economic law, Qian Yulin thinks that their ideas and value orientations are completely different, and the value orientation of modern commercial law is fast, flexible and safe transactions. Transaction security and transaction speed complement each other in function [1]. Hu Honggao believes that the value of commercial law refers to the positive significance of commercial law norms to society, individuals and their groups. It embodies the spirit of commercial law and guides the whole process of commercial legislation, law enforcement and justice. Transaction efficiency value, transaction security value and transaction fairness value constitute the three basic values of contemporary commercial law. The three values of commercial law are not isolated, and there are both connections and differences between them. On the basis of trade standards, they form a dynamic and complementary basic value chain [2]. In the understanding of the value orientation of commercial law, although the conclusions are not completely consistent, some think it is fair, others think it is efficiency, but the similarity is that they are more inclined to have an ultimate value goal that can guide all commercial law values.

However, some important issues still need to be studied in depth, which are reflected in the following aspects: First, the definition of the value orientation of commercial law by existing achievements is from theory to theoretical deduction, and the macro-issue of the value orientation of commercial law lacks micro-foundation support. Secondly, some scholars are aware of the defects of single commercial law value orientation, and the solution is to list a variety of values as substitutes, which are positioned as "goals", "basic points" or "conditions" respectively, but this does not explain the relationship between values. "The ideal value orientation of commercial law should be the balance between transaction security and transaction efficiency, but the balance between them is relative and temporary, and the conflict between them is inevitable in reality. Therefore, it is necessary to preset its order in advance, weigh out the primary value goal, and set rules for the settlement of value conflicts [3]. But "pre-setting order and weighing the primary value goal" means that the ultimate value orientation of commercial law is pre-established, so there is no value conflict. Thirdly, the economic law and civil and commercial law are investigated from the perspective of departmental law comparison, and the conclusion that the value orientation of commercial law and economic law is different is drawn. However, this analysis is based on the theory of "integration of civil and commercial law". We believe that the principle of fairness is a basic principle of civil and commercial law and a superior principle, which plays a guiding role in other principles of civil and commercial law. In fact, we have not noticed the difference in value orientation between civil law and commercial law, and generally regard them as a whole. On the premise of "civil and commercial integration", we conclude that the value orientation of commercial law is fairness [4]. Fourthly, some documents acknowledge the historicity of the value orientation of commercial law, but fail to consider the reality and hierarchy of the value orientation of commercial law, and fail to elaborate from two aspects: realistic commercial law and ought-to-be commercial law. Fifth, the research method is mainly based on the normative research of law, lacking the investigation and mutual evidence from the perspectives of economics, sociology and other disciplines. Therefore, it is of great significance to explore the value orientation of commercial law hidden in the norms, principles, concepts and technical provisions of commercial law, and to explore the hierarchy, reality and history of the value orientation of commercial law from the micro-level of commercial law.

Second, the construction of commercial law value orientation

(A) the micro-foundation of legal value orientation

Value is the basic satisfaction of people's needs, which reflects the relationship between real people and the properties of things that meet their needs. The value of law is contained in the elements of law, and among the elements of law, legal norms are the code of conduct that specifically stipulates rights, obligations and legal consequences, which has micro-guidance and operability; Legal concept is the abstraction and generalization of specialized legal terms, which contains specific legal significance; Legal norms and legal concepts constitute the micro-foundation of legal value. Legal technical clauses are technical matters in legal documents, involving legal effect and legal interpretation. Compared with other legal elements, legal principles have macroscopic guidance and originality. Legal principles and legal technical regulations are the macro basis of legal value, and the basic principles of law are the accumulation of legal value, which determines the value orientation of law. The legislative value orientation refers to the operation and development of the law towards a certain purpose or social effect, and the value orientation is reflected in the legal principles of departmental law [4]. The legislative value orientation mainly has two meanings: first, it refers to the purpose or social effect that the country hopes to achieve through legislation when formulating laws, and second, it refers to the choice of the ultimate value goal when multiple goals pursued by the law are contradictory [5]. The relationship between value orientation and legal principles is that value orientation can be transformed or directly embodied in legal principles, and the spirit embodied in legal principles will be embodied in various clear and affirmative legal norms and legal systems. On the level of effectiveness, value orientation is the superior concept of legal principles. In the relationship between legal principles and specific legal norms, legal principles are the basis for formulating specific legal norms, which requires that all legal norms in specific legal departments should have a unified value orientation, so as to avoid contradictions between specific legal norms and achieve harmony within the legal system [6].

(B) the connotation of the value orientation of commercial law

The value orientation of commercial law can also be called the spirit of commercial law. The value orientation of commercial law is abstract and exists in commercial law norms, commercial law concepts, commercial law technical terms and commercial law principles. The value orientation of commercial law must be embodied through commercial norms, concepts, technical terms and principles. The principle of commercial law embodies the spirit of commercial law more. It is a universal code of conduct that must be followed in adjusting commercial relations, and it is the fundamental starting point and theoretical basis for compiling commercial laws and regulations and formulating commercial codes [7]. Therefore, discussing the value orientation of commercial law is inseparable from the investigation of the elements of commercial law, especially the analysis of the basic principles of commercial law. The so-called basic principles of commercial law refer to the fundamental rules that embody the nature and characteristics of commercial law, summarize the basic system of commercial law and embody the basic spirit of commercial law [8]. In the study of commercial law in China, the basic principles of commercial law are an unavoidable problem. In a limited number of academic papers on the basic theory of commercial law, monographs on the basic principles of commercial law account for a large proportion. In fact, few countries attach importance to the basic principles of law like our country [9]. On the basic principles of commercial law, the representative views of domestic scholars are:

(1) Three Principles Theory. Some people think that it should include the principles of ensuring profitability, maintaining transaction efficiency and maintaining transaction security. Some people think that it should be expressed as the principle of freedom of transaction, the principle of integrity of transaction and the principle of fairness of transaction. Some scholars advocate the principle of maintaining the normal operation of the market, improving the efficiency of commercial transactions and ensuring the safety of commercial transactions [10]. (2) Four principles. There are many scholars who hold the four principles, but there are also great differences. For example, some scholars believe that the principles of commercial freedom, enterprise maintenance, commercial transaction convenience and commercial transaction security are the basic principles of commercial law. Some people think that it should be the principle of strengthening business organizations, maintaining fair transactions, promoting fast transactions and maintaining transaction security. There are also principles of promoting trade freedom, maintaining trade fairness, improving trade efficiency and ensuring trade security [1 1]. ③ Wuyuan said. Mainly the legal principle of commercial subject, the principle of fair trade, the principle of simple and fast trade, the principle of encouraging trade, the principle of clear trade and safety. It is also considered as the legal principle of commercial subject, the principle of confirming and protecting interests, the principle of promoting simple and fast transactions, the principle of maintaining fair transactions and the principle of protecting transaction security [12]. (4) Seven principles. It includes the principle of exercising rights freely according to law, the principle of autonomy of commercial subjects, the principle of good faith, the principle of legality, the principle of respecting public interests, the principle of encouraging transactions to ensure transaction convenience and the principle of maintaining transaction security [13]. (5) Eight principles. That is, the principle of profit maximization, the principle of honesty and credit, the principle of negotiation and adjustment, the principle of reciprocity, the principle of simplicity and agility, the principle of safety, the principle of independent operation, and the principle of strengthening business organization and social responsibility [14].

From the above point of view, it can be seen that although there are great differences in the basic principles of commercial law, the principles of maintaining transaction fairness, improving transaction efficiency and ensuring transaction security are recognized by the mainstream view. The author believes that the principles of fairness, efficiency and safety are the direct embodiment of the value orientation of commercial law, and the fair value is embodied in many commercial norms, such as the system of "disregard of corporate personality", the system of company acquisition and the system of company bankruptcy. Fair value is manifested in the equality of qualifications, rights and obligations of commercial subjects in law, and should be manifested in distribution justice in economy, emphasizing the fairness of initial distribution and redistribution. The efficiency value of commercial law is embodied in specific commercial legal norms such as freedom of trading, formalization of trading rules and behaviors, standard contract, short-term prescription, rights securitization, electronic signature, and voting by shareholders through the securities trading system. As the scholar said, "Doing business is for profit. In order to achieve this goal, we must strive to be agile in trading. Because of the agility of transactions, people engaged in business can repeat transactions and use their time economically to achieve their profit goals. " [15] Information disclosure system, necessity system, right externality system, publicity system, bill circulation system and strict liability system are the embodiment of the safety value of commercial law.

Some principles can not be regarded as the basic principles of commercial law, but only apply to a certain system or field of commercial law, which is the expression of the basic principles of commercial law in a specific commercial system or field. For example, the principle of good faith is the basic principle of civil law. Although it is called the "imperial clause" in civil law, in commercial law, good faith is only the embodiment of the principle of fairness. As for some scholars who say that "the principle of profit protection is the direct embodiment of the basic value concept of commercial law in the basic principles of commercial law, which can meet the needs of the development of commercial transactions and further refine other basic principles of commercial law" [16], the author thinks that this view confuses the relationship between commercial behavior and commercial law and is worth discussing. Because "profit is no longer the highest goal of commercial business activities protected by commercial law, the law must try its best to stop unfair or profitable behaviors that have a negative impact on others and society" [7].

Third, the legal and economic analysis of the value orientation of commercial law

(A) the balance of commercial law value orientation: the result of interest group game

The value of commercial law is a group of values, which reach a balanced state through game. The value orientation of commercial law is the balanced result of efficiency, safety and fair value, rather than leading other values with a superior value. The value of commercial law reaches a state of value balance through game, which embodies the value orientation of commercial law. The game process between commercial law values is actually the game process of social interest groups, and the introduction of written law is the result of power game of interest groups. Commercial law in a specific historical period is the game equilibrium of various social interest groups in that period, which embodies the value orientation of commercial law. Whether it is China commercial law or foreign commercial law, its emergence, development and evolution clearly show this game process and its equilibrium results. In addition, the balance of the value orientation of commercial law also requires balancing the values of efficiency, safety and fairness in different norms of the same commercial law. Only in this way can the law meet the needs of economic activities. For example, the old company law is to meet the needs of establishing a modern enterprise system, while the new company law emphasizes standardizing the organization and behavior of the company. Obviously, the two reflect the different equilibrium states between efficiency, safety and fair value, and also illustrate the change of the value orientation of commercial law from equilibrium to imbalance and then to equilibrium.

(B) the particularity of the value orientation of commercial law: the value orientation of commercial law

As far as the position of commercial law in a country's legal system is concerned, there is a worldwide dispute between "integration of civil and commercial affairs" and "separation of civil and commercial affairs", and China commercial law researchers have invested a lot of research power in this issue. It is the mainstream theory in the field of commercial law to go beyond "integration of civil and commercial affairs" and "separation of civil and commercial affairs" and formulate general principles of commercial law [17]. There is no formal commercial law in China, only a series of separate commercial legislation such as company, securities, bills, insurance, bankruptcy, partnership, trust law, maritime law, etc. The commercial law works published in China in recent years are mainly concentrated on the above-mentioned commercial sector law. It can be seen from the legislative purpose of each commercial sector law that the value orientation of each commercial sector law is not uniform, and each commercial sector law focuses on different values of efficiency, safety and fairness. Company law emphasizes efficiency, securities law and insurance law emphasize safety, and bankruptcy law pays more attention to fairness. Therefore, the values such as efficiency, fairness and safety are reflected in different equilibrium States in different commercial sector laws, or their status in different equilibrium States varies with different commercial sector laws.

(C) the historical value orientation of commercial law: the change of commercial system and the value orientation of commercial law.

As mentioned above, the value orientation of commercial law is a macro issue, which can be reflected through its micro-foundation, namely, the norms, principles, concepts and technologies of commercial law. Compared with other departmental laws, commercial law is changeable, and commercial legislation changes with economic development. Commercial law in different periods must adapt to the economic, political, cultural and social background at that time, and different micro-foundations will inevitably reflect different commercial law value orientations. Take China's Company Law as an example. Since its promulgation, the law has undergone three revisions, the third of which is the largest and most comprehensive revision. Basically, all the terms have been revised. The revised company law lowers the threshold for the establishment of a company, clarifies the corporate governance structure, reflects the autonomy of the company to a greater extent, and highlights the protection of the rights and interests of minority shareholders. The change of the company's legislative idea can be clearly answered by comparing the old and new legal provisions, and the same conclusion can be drawn from the legal revision of commercial departments such as securities and insurance. The most convincing argument for the historical orientation of legal value is China's Constitution, which fully explains the changes of the Constitution from 1954, 1975, 1978 and 1982, especially the four revisions of the Constitution from 1982. At this time, if we still insist on the identity of the value orientation of the new company law and the old company law, I am afraid it will be difficult to convince people. Some scholars hold a view similar to the author's that the legal value order is meaningful only under the specific system of a specific period and a specific society, and pure theoretical research is only a hypothesis [18]. The ideal value composition of commercial law should be the balance between transaction security and transaction efficiency, but the balance between them is relative and temporary, and its conflict is hard to avoid in reality [3].

(D) The hierarchy of the value orientation of commercial law: the value orientation of commercial law in substantive and formal sense.

The value orientation of commercial law can be manifested in three levels: first, as the value orientation of private law, commercial law, like civil law and other departmental laws, has the ultimate value goal of social fairness and justice. Second, the value orientation of commercial law is essentially the specific value pursuit of commercial law, including fairness, efficiency and safety. The value orientation of commercial law is essentially a collection of values such as fairness, efficiency and safety. Third, in the formal sense, the value orientation of commercial law refers to the laws within the commercial sector. When different values conflict, which one shall prevail. The value orientation of commercial law in the formal sense is the balance of values such as fairness, efficiency and safety. The above three levels constitute the value orientation of commercial law in a complete sense. In the theoretical research of commercial law in China, there has always been a * * * understanding that civil and commercial law pursues the ultimate value goal of social fairness and justice [19], but according to the information the author has mastered, the existing research has not yet noticed the difference in value orientation between substantive law and formal commercial law.

(V) The reality of the value orientation of commercial law: the value orientation of realistic commercial law and natural commercial law.

"Law as it should be" and "law as it is" are the basic categories of legal philosophy. "Actual law" is the law that exists in reality, and it is "what kind of law is it actually", that is, the law that actually exists in reality and has practical effect on human behavior. "Positive law" is the product of mutual compromise of various interests. The value orientation of commercial law in practice is the balance of fairness, efficiency and safety. The "ought-to-be method" is an ideal method, that is, according to the characteristics of the law, it should reach an ideal state. The relationship between the value orientation and the basic principles of commercial law is that the value orientation of commercial law determines the basic principles of commercial law. Therefore, through the analysis of the basic principles of commercial statute law, we can pursue the value orientation behind it. But what we get from this is only the value orientation of commercial law at the practical level, not the value orientation of commercial law at the due level. Obviously, judging from the elements of commercial law, it is impossible to determine the value orientation of commercial law at an appropriate level.

The research on the value orientation of "law as it should be" in the field of legal philosophy has produced the concept of "natural law", and the research perspective of legal economics provides us with another way to explore the value orientation of commercial law at the level of "law as it should be". Legal economics mainly uses the relevant theories and methods of microeconomics to analyze legal theories and legal phenomena. The core of its theory is that all legislation, judicature, law enforcement and the whole legal system play the role of allocating scarce resources, so all legal activities should aim at the effective allocation and rational utilization of resources, that is, maximizing interests. As an "endogenous variable" of economy, law plays a decisive role in economic development, just like capital, labor, technology and other production factors. The economic functions of law include reducing transaction costs, improving economic benefits, promoting cooperation, providing incentive mechanism, internalizing externalities and reducing uncertainty [20]. The research of new institutional economics shows that economic institutions can reduce transaction costs, provide services for the economy, create conditions for cooperation, provide incentive mechanisms, and curb people's opportunistic behaviors. Institutional innovation is conducive to the internalization of external profits [2 1]. In other words, when everyone thinks that he is moving towards personal interests, he is moving towards public interests [22]. Like Adam. In The Wealth of Nations, Smith said: The individual's pursuit of profit not only satisfies both parties to the transaction, but also indirectly promotes social prosperity. As a formal system, commercial law with proper levels obviously has the above-mentioned economic functions, and maximizing interests has become the only choice of the value orientation of "commercial law should be".

References:

[1] Qian Yulin. The Value, Function and Orientation of Commercial Law ── A Discussion with Shi Jichun and Chen Yueqin [J]. Laws of China, 200 1(5).

[2] Hu Honggao. Value theory of commercial law [J]. Journal of Fudan University: Social Science Edition, 2002(5).

[3] Zhang Chu. On the Dual Structure of Commercial Code in China and Its Value Defects [J]. China Law, 1999(2).

[4] Dai Xia. On the value orientation of civil and commercial law and economic law-from the perspective of fairness and efficiency [J]. Journal of Jinan: Humanities and Social Sciences Edition, 2004(3).

[5] Zhao Wanyi. Research on the Basic Problems of Commercial Law [M]. Beijing Law Press, 2002, p. 84.

[6] Zhao. On the similarities and differences of the value orientation of civil and commercial law and its influence on China's civil and commercial legislation [J]. Law Forum, No.6, 2003.

[7] Fan Jian, Wang Jianwen. The value, origin and ontology of commercial law [M]. Beijing: Renmin University of China Press, 2004: 1 1.

[8] Zhang Minan. Research on the general system of commercial law [M]. Beijing: Law Press, 2007:40.

[9] Fan Jian, Wang Jianwen. Special research on the basic theory of commercial law [M]. Beijing: Higher Education Press, 2005:67.