The relationship between civil law and commercial law?

The relationship between civil law and commercial law?

The relationship between civil law and commercial law is not clear in theory
It is a controversial issue in practice. It not only affects the development prospect of China's civil and commercial law discipline, but also determines the concept and ideas of the formulation of China's civil code. This paper tries to put forward some views on the compilation style of China's civil code from the perspective of civil and commercial relations, so as to teach colleagues
1、 The historical achievements and limitations of the traditional separation of civil and commercial
（1） The meaning and historical evolution of the separation of civil and commercial
Civil and commercial separation, also known as civil and commercial separation, has two meanings: first, as far as the legislative system is concerned, a separate commercial code is established outside the civil code; Second, in terms of legal operation mechanism, civil law and commercial law jointly realize the adjustment of economic relations. Civil law and commercial law are independent and interdependent. From the historical evolution of civil and commercial legal systems in major countries of civil law system, "the mode of separation of civil and commercial law still occupies a dominant position not only because of tradition, but also some theoretical basis" [1]
If we trace the development history of the separation of civil and commercial affairs, we can see that although commercial customs and commercial rules have appeared for a long time, However, it is a modern thing that commercial law really exists independently as a legal department. The emergence of commercial relations is the result of the development of productive forces and social division of labor. Roman law, as the first worldwide law of commodity production society, determines all essential legal relations of simple commodity owners. However, with the development of commodity economy and the expansion of market scope, In the face of complex commodity economic relations, Roman law with civil law as the basic content began to feel stretched. In this regard, Berman believes that: "neither the rediscovered Roman municipal civil law nor only the remaining Roman customary law, including the universal civil law, are enough to deal with various commercial problems in the late 11th century and the 12th century." [2] Therefore, there is a demand for commercial law. Businessmen undoubtedly play an important role in the construction of commercial law system and the completion of commercial law system. Businessmen have explored a set of rules in long-term transactions, namely business habits. Business habits have similar legal effect among businessmen. Merchant autonomous groups solve disputes among businessmen according to the developed business habits, Therefore, in a sense, "as the characteristics of that period, the initial development of commercial law was largely, though not entirely, completed by the merchants themselves." [2] as the earliest Italian merchant customary law, it was mainly based on Roman law, At the end of the middle ages, especially after the 16th century, with the further development of commodity economy, the feudal forces in some European countries gradually declined, and the temple law dominated in the Middle Ages began to be abandoned, With the increasing intensity of state intervention in commercial affairs, commercial customary law has been gradually replaced by national commercial law, resulting in the emergence of French commercial code in 1807, Luxembourg commercial code in 1817, Spanish commercial code in 1829, Portuguese commercial code in 1888 and European commercial law in 1838 The Greek commercial code, the Dutch commercial code in 1838, the Belgian commercial code in 1850, the Italian commercial code in 1865 and 1883, and the German commercial code in 1900 have formed the so-called legislative model of civil commercial separation
（2） The historical merit of the separation of civil and commercial
In theory, the separation of civil code and commercial code is a style that meets the different needs of economic life for legal adjustment, which not only makes civil law and commercial law play their due role, but also makes the adjustment of commercial law The object, adjustment method, basic principles and their unique legislative technology are understood, known and applied in an all-round way, which is of great significance to establish the legal concept of emphasizing business and promoting business. [3] specifically, the role of the separation of civil and commercial affairs is mainly reflected in the following aspects:
First, the separation of civil and commercial affairs has greatly promoted the development of social economy and consolidated and strengthened the capitalist economic relationship in law. Commercial law is closely related to the market economy. Different from the civil subject, the market economy subject is an economic man merchant whose sole purpose is to engage in profit-making activities. The economic man must be rational and be able to achieve the goal through the principle of cost-benefit or seeking advantages and avoiding disadvantages Making profit is the ultimate purpose for businessmen to engage in business activities, the fundamental value pursuit of businessmen, the value basis of market economy adjusted by commercial law, and the standard to judge whether the business activities of market subjects meet the essential requirements of market economy. In this sense, the design of all commercial law systems should In terms of legislative practice, the whole commercial law system is designed to meet the profit-making requirements of commercial subjects. The whole operation process of commercial law is also manifested in the balance, choice and trade-off of various interest relations, and various interests through rights and obligations If the general adjustment of commodity exchange in civil law provides the basis for the adjustment of commercial relations, the commercial law specifically adjusts the economic relations formed by profit-making business activities, and the profit adjustment mechanism is its unique way. The commercial law regards profit as its own purpose and creates its own value system and new principles. [4]
Second, the separation of civil and commercial law promotes the improvement of the legislative technology of the whole society. Generally speaking, civil law norms provide general rules of conduct for commodity economy and market economy. These general rules of conduct are the abstraction and generalization of the whole civil society and its economic basis. They are the result of people's rational thinking, which is generally more reasonable and stable. It is based on the nature and characteristics of this adjustment object And the characteristics of adjustment means, so the vast majority of civil law provisions belong to ethical provisions. Moreover, since Roman law, especially the German civil code, civil law attaches great importance to the use and definition of concepts. However, the concept of civil law has considerable flexibility and uncertainty, such as fairness and good faith, good faith and good faith in judging the effectiveness of acts, which are the basic requirements of civil law The concepts of malice and the fault of determining whether the perpetrator is responsible have considerable flexibility. However, the commercial law is different, and the commercial law norms require that the concepts used should be clear and definite and can not produce ambiguity. The commercial law originated from the "merchant law", which has been specialized and professional since its emergence. After many times of evolution, the "merchant law" has developed into the "commercial behavior law" However, the basic characteristics of commercial law have not changed. Commercial law has always been a direct adjustment to the market economy. It can be said that the basic content, basic rules and basic operation mode of market economy constitute commercial law rules when translated into legal language. What kind of market transaction mode and market transaction content are adjusted according to what kind of commercial law norms. Therefore, commercial law norms must have It is highly operational and technical, and these technical norms can not judge their behavior effect simply by moral and ethical consciousness. It can be said that without the effective adjustment of a large number of technical norms, it is difficult to realize the profitability of commercial law and the purpose of commercial law
Third, the separation of civil and commercial law promoted the internationalization of legal norms. From the perspective of historical origin, the early commercial law had a certain Internationality in the era of merchant customary law in the middle ages of Western Europe. Commercial law originally belongs to domestic law, and its adjustment object is mainly domestic commercial law. However, with the progress of science and technology, the strengthening of international exchanges and the development of international trade, many commercial relations involve countries Moreover, the market economy adjusted by commercial law itself has good growth and significant cross regional. The development of a country's market economy is inseparable from the economic development of other countries. It is almost impossible for any country to adopt a closed door policy and develop independently without relying on other countries. Therefore, domestic commercial law can no longer be limited to its own field On the other hand, compared with other legal systems, the requirement of international unity of commercial law has a better objective basis. First, most provisions of commercial law are technical norms, which have neither strong political color as criminal law nor strong national color and ethical color as civil law, which is to realize the international unity of commercial law Unification has laid a good legal and technical foundation. Second, the content of commercial law mostly comes from the merchant autonomy law in the middle ages. These autonomy laws mainly come from various commercial practices formed in commercial activities, which have been widely used for reference when countries formulate written commercial laws, that is, the commercial laws of various countries have homology in terms of their main content. Therefore, every department law of commercial law From the current legal situation of most countries, the development of international integration in commercial law related to negotiable instruments, maritime commerce, international sale of goods and commercial arbitration is actually an irreversible trend
Fourth, the separation of civil and commercial law strengthens the maintenance of transaction security. Compared with the civil law, it pays more attention to the requirements of party autonomy, and there are more restrictions on Party freedom in commercial law. Commercial law contains more public law norms related to economic activities such as criminal law and social law, which are obviously mandatory by the state. In the application of law, public law norms have priority effect , this priority effect is mainly reflected in the following aspects: first, the behavior of the parties is considered to be effective only when it complies with the legal provisions, and simply not violating the legal provisions does not constitute the natural reason for the legitimacy of the behavior; second, in the application of law, the norms of public law can exclude the norms of private law and take effect alone; third, the parties cannot communicate with the provisions of public law Change its content through agreement or articles of association. As far as commercial law itself is concerned, in order to highlight the maintenance of transaction security, commercial law implements coercion and strictness in the legal control of commercial behavior. It adjusts the behavior of commercial subjects through a series of rules such as commercial registration, consumer protection, prohibition of unfair competition and restriction of commercial monopoly. Moreover, commercial law also pays more attention to commercial behavior It emphasizes that the effectiveness of each act only depends on whether the act complies with the formal and substantive elements stipulated by the law, and has nothing to do with the effectiveness of other acts. Related to this, commercial law attaches great importance to the protection of trust interests and the appearance effectiveness of the act. Even if the facts publicized on the appearance are inconsistent with the real situation, it also confirms the effectiveness of the act without exploring the perpetrator These systems play a very significant role in maintaining normal social and economic order and ensuring transaction security
Fifth, the separation of civil and commercial affairs expanded the scope of application of trading habits and trading rules. In the early stage of the establishment of the commercial law system, in order to effectively adjust the commercial relations between merchants, especially the cross regional and cross-border commercial relations, in order to protect their legitimate rights and interests and promote the normal development of commercial and trade relations, merchants created some customary practices and practices according to the actual needs of commercial transactions In modern society, habit

Australian commercial law judgment questions 4, for reasons 1.the main purpose for awarding damages for the breach of contract is to penalize the party so that they may not commit a similar breach in the future. 2.Minors,mentally ill or intoxicated persons cannot enter into leagally binding contract. 3.Where there is special,confidential or fiduaciary relationship between the parties,there is a presumption of under influence. 3.in your application for a job as an accountant,you do not disclose your the fact that you were charged with forgry and fraud in the pas.you are successful in getting the job.your silence in these circumstance will amount to a misrepresentation.

Hello 1. Yes, because the main reason for judging the damages is to punish the party who violates the contract, so that they will not do such things again in the future. Of course, the reason for judging the damages can also be to compensate the party who receives the losses, but from the perspective of the large social system, it is more important to punish the violators to prevent this phenomenon. 2

There is a process to compare the size (inequality) of 5-2a and - 2A + 6

5-2a-(-2a+6)=5-2a+2a-6=-1

How to compare the size of numbers

Used as difference method (a-b > 0, then a > b; A-ba)

How to compare the size of two numbers

Comparing the size of two numbers is divided into integer decimal and fractional integer: count the digits first, the number with more digits is large, and the number with less digits is small; If the digits are the same, it depends on the highest bit, and the larger the highest bit is, if the highest bit is the same, it depends on the next bit, and so on. Comparison of decimals: first look at the integer part, and the smaller the integer part is

Find the function y = Tan (3x - π 3) And the monotone interval of the function is pointed out

From 3x - π 3 ≠ K π + π 2, K ∈ Z, the definition domain of X ≠ K π 3 + 5 π 18, K ∈ Z. the function y = Tan (3x - π 3) is {x ≠ K π 3 + 5 π 18, K ∈ Z}. The value range is: (- ∞, + ∞). From − π 2 + K π < 3x − π 3 < π 2 + K π, K ∈ Z, we get − π 18 + K π 3 < x < 5 π 18 + K π 3, K ∈ Z