The relationship between civil law and commercial law?

The relationship between civil law and commercial law is also true in theory.

However, it is a controversial issue in practice, which not only affects the development prospect of China's civil and commercial law, but also determines the concept and thinking of formulating 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 in order to teach colleagues.

First, the historical merits and limitations of the traditional separation of civil and commercial affairs.

(A) the meaning of the separation of civil and commercial and its historical evolution

The separation of civil and commercial affairs, also known as the separation of civil and commercial affairs, has two meanings: first, as far as the legislative system is concerned, the commercial code is established separately outside the civil code; Second, as far as the legal operation mechanism is concerned, the adjustment of economic relations is realized through civil law and commercial law, which are both independent and interdependent. Judging 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 is still dominant, not only because of tradition, but also because of some theoretical basis". [ 1]

If we trace back to the development history of the separation of civil and commercial affairs, we can see that although commercial habits and commercial rules have long appeared, 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 in the commodity-producing society, determines all the essential legal relations of simple commodity owners. However, with the development of commodity economy and the expansion of market scope, Roman law with civil law as its basic content began to feel stretched. In this regard, Pahlman thinks: "Neither the rediscovered Roman civil law nor the only remaining Roman common law, including universal law, can cope with all kinds of commercial problems in 1 1 century." [2] This has created a demand for commercial law. In the construction and perfection of commercial law system, businessmen undoubtedly played an important role. Businessmen grope for a set of rules in long-term transactions, that is, business habits. Business habits have similar legal effect among businessmen. The self-governing organizations of businessmen solve disputes among businessmen in accordance with the developed business habits, and develop their own judicial system-commercial courts that participate in the adjudication system. Therefore, in a sense, "as a characteristic of that period, the initial development of commercial law was largely-though not completely-completed by businessmen themselves." [2] As the earliest Italian merchant customary law, it is mainly based on Roman law, using the legal terms and concepts of rights and obligations of Roman law, and absorbing the moral concepts of goodwill, fair dealing and abiding by contracts in church law, which constitutes the basis of modern commercial law. At the end of the Middle Ages, especially after16th century, with the further development of commodity economy, the feudal forces in some European countries gradually declined, and the temple law that dominated in the Middle Ages began to be abandoned, and a unified nation-state gradually formed. With the increasing state intervention in commerce, commercial customary law is gradually replaced by state commercial law. As a result, the French Commercial Code/KOOC-0/807, the Luxembourg Commercial Code/KOOC-0/8/KOOC-0/7, the Spanish Commercial Code/KOOC-0/829, the Portuguese Commercial Code/KOOC-0/888 and the Portuguese Commercial Code/KOOC-0/88 appeared in the European continent. Belgian Commercial Code 1850, Italian Commercial Code 1865 and 1883, German Commercial Code 1900, etc. , and thus formed the so-called separation of civil and commercial legislation model.

(2) The historical achievements of the separation of civil and commercial affairs.

The separation of civil and commercial affairs is not only a scientific division of legal system, but also a subjective division. At the same time, it also meets the needs of social and economic development to a certain extent. Theoretically speaking, the separation of civil code and commercial code is a way to meet the different needs of economic life for legal adjustment, which not only makes civil law and commercial law play their due roles, but also makes the adjustment objects, adjustment methods, basic principles and unique legislative techniques of commercial law fully understood, recognized and applied, which is of great significance to establishing the legal concept of attaching importance to and promoting business. [3] Specifically, the role of separation of civil and commercial affairs is mainly reflected in the following aspects:

First, the separation of civil and commercial has greatly promoted the social and economic development and legally consolidated and strengthened the capitalist economic relations. Commercial law is closely related to market economy. Different from the civil subject, the subject of market economy is economic man-businessman, whose sole purpose is to engage in profit-making activities. An economic man must be rational and be able to optimize all opportunities and goals he faces and the means to achieve them through the principle of cost-benefit or the principle of seeking advantages and avoiding disadvantages. Profit-making is the ultimate goal of businessmen engaged in business activities, the fundamental value pursuit of businessmen, the value basis of commercial law to adjust market economy, and the standard to judge whether the business activities of market entities meet the essential requirements of market economy. In this sense, the design of all commercial law systems should and must consider the profit-making requirements of commercial behavior, and reduce the transaction costs and system costs in the process of market operation as much as possible. As far as legislative practice is concerned, 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 choice of various interests, as well as the adjustment and adjustment of various interests through rights and obligations. If the general adjustment of commodity exchange in civil law provides a basis for the adjustment of commercial relations, then the commercial law makes special adjustments to the economic relations formed by profit-making business activities, and the profit-making adjustment mechanism is its unique way. Commercial law aims at making profits and creates its own value system and new principles. [4]

Second, the separation of civil and commercial affairs has promoted 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 foundation, and the result of people's rational thinking, which are generally more reasonable and stable. It is precisely because of the nature and characteristics of this adjustment object and the characteristics of adjustment means that most civil law clauses belong to ethical clauses. Moreover, since Roman law, especially the German Civil Code, civil law has attached great importance to the use and definition of concepts. However, the concept of civil law is quite flexible and uncertain. Typical concepts, such as taking fairness, honesty and credit as the basic requirements of civil law, judging the goodwill and malice of an act's effectiveness, and determining whether the actor bears fault liability, are quite flexible. But commercial law is not, and the commercial law specification requires that the concepts used should be clear and definite. Commercial law originated from the Commercial Law, and it was specialized and professional from the beginning. After many times of evolution, "commercial law" has developed into "commercial behavior law", but 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 translating the basic contents, rules and basic operation modes of market economy into legal language constitutes the rules of commercial law. What kind of market transaction mode and market transaction content, what kind of commercial law norms should be adjusted accordingly. This determines that commercial law norms must be highly operational and technical, and these technical norms can not simply judge their behavior effects by moral and ethical awareness. It can be said that the profitability and purpose of commercial law are difficult to achieve without a large number of effective technical specification adjustments.

Third, the separation of civil and commercial promotes the internationalization of legal norms. From the historical origin, the early commercial law had certain internationalization in the common law era of medieval merchants in 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 communication and the development of international trade, many business relationships involve foreign subjects or other foreign-related factors. 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, and it is impossible for any country to close its doors and develop independently without relying on other countries. Therefore, domestic commercial law can no longer be confined to its own territory, but should take into account relevant international conventions and international practices. On the other hand, compared with other legal systems, the requirement of international unification of commercial law has a good objective basis. First, the provisions of commercial law are mostly technical norms, which are neither as strong as political color in criminal law nor as strong as national color and ethical color in civil law, which has laid a good legal and technical foundation for realizing the international unification of commercial law. Secondly, the content of commercial law mostly comes from the merchant autonomy law in the middle ages, which mainly comes from various commercial practices formed in commercial activities, and these practices are widely used for reference by written commercial laws in various countries, that is, the commercial laws of various countries have homology in terms of their main contents. Therefore, all branches of commercial law are easy to unify in specific operations. Judging from the current legal situation in most countries, the development of international integration of bills, maritime business, international sale of goods and commercial arbitration in commercial law is actually an irreversible trend.

Fourth, the separation of civil and commercial affairs strengthens the maintenance of transaction security. Different from the requirement that civil law pays more attention to the autonomy of the parties, commercial law imposes more restrictions on the freedom of the parties. Commercial law contains many public law norms related to economic activities, such as criminal law and social law, which is obviously mandatory by the state. In the application of law, the norms of public law have priority effect, which is mainly reflected in the following aspects: first, the behavior of the parties is considered effective only if it conforms to the legal provisions, and simply not violating the legal provisions does not constitute a natural reason for the legality of the behavior; Second, in the application of law, public law norms can exclude private law norms and take effect independently; Third, for the provisions of public law, the parties cannot change their contents through agreement or articles of association. As far as the commercial law itself is concerned, in order to highlight the maintenance of transaction security, the commercial law has implemented mandatory and strict legal control over commercial behavior. Through a series of rules such as commercial registration, consumer protection, prohibition of unfair competition and restriction of commercial monopoly, the behavior of commercial subjects is adjusted. Moreover, commercial law pays more attention to the independence of commercial behavior, emphasizing that the effectiveness of each behavior depends only on whether the behavior meets the formal and substantive requirements stipulated by law, and has nothing to do with the effectiveness of other behaviors. In connection with this, commercial law attaches great importance to the protection of trust interests and emphasizes the appearance effect of behavior. Even if the facts publicized on the appearance are inconsistent with the real situation, it is necessary to confirm its behavior effect without exploring the real thoughts of the actor. These systems have played a very important role in maintaining normal social and economic order and ensuring transaction safety.

Fifth, the separation of civil and commercial affairs has expanded the scope of application of trading habits and trading rules. In the early days of the establishment of the commercial legal system, in order to effectively adjust the commercial relations between businessmen, especially those across regions and borders, protect their legitimate rights and interests, and promote the normal development of commercial and trade relations, businessmen created some customary practices and conventions according to the actual needs of commercial transactions. Even in modern society, custom is still one of the important sources of commercial law in various countries. Trading habits reflect the autonomy of the parties, so they are actively observed by the trading subject, which forms necessary constraints on the behavior of the trading subject and has strong certainty. Trading habits play a very important role in the relationship of market economy: it can improve the self-discipline level of the market and reduce the operating cost of the law; It can fill the blank of the law, explain the meaning of the law and make the law more reasonably implemented.

(3) The historical limitations of the separation of civil and commercial affairs.

Although the separation of civil and commercial affairs meets the needs of modern social and economic development, it also promotes the formation of modern economic relations and economic order to some extent. However, due to the restriction of merchant customary law from the beginning, commercial law is the product of pragmatism and eclecticism, and its legislative process lacks theoretical preparation similar to civil legislation. Therefore, with the development of economic life, the commercial law system of European countries has been constantly revised and supplemented, thus becoming the fastest-growing and fastest-changing legal department, but at the same time it lacks the necessary theoretical guidance. [5] With the development of modern life, some inherent defects in the separation of civil and commercial affairs are gradually exposed.

First of all, we can not make a clear definition of civil law and commercial law in theory. The reasons are as follows: (1) Civil and commercial laws have the same value orientation, including fair value, benefit value, equal value, honesty and credit value, etc. (2) They all take social and economic relations as the adjustment object; (3) all depend on the same existing economic base and economic realization mode; (4) Both of them belong to the category of private law.

Secondly, the content and principles of commercial law should be guided and restricted by the basic principles of civil law. Because civil law and commercial law are essentially the same, they are both legal manifestations of civil society and belong to the category of private law. Therefore, civil law and commercial law are interlinked in basic principles. Moreover, compared with the basic principles of commercial law, the principles of civil law are more fundamental and fundamental in nature. The fundamental rule attribute of the basic principles of civil law comes from two sources, one is the fundamentality of its content, and the other is the extensiveness of its effective scope. Because "the norms of civil law only express the economic and living conditions of society in legal form", [6] therefore, the basic principles of civil law are mainly manifested in some basic norms that must be followed in commodity production and commodity circulation, and are legal adjustments to various social relations established by the whole civil society based on the equality of subjects and autonomy of will, which are abstract and systematic. As far as the legal adjustment of market economy is concerned, civil law provides general rules and commercial law provides specific rules, so civil law is general private law and commercial law is special private law. Civil law is a purely private law with a complete system of autonomy; Commercial law is mixed private law. Therefore, the basic principles of civil law can usually be applied to commercial law.

Finally, the emergence of commercial law is inherently inadequate. This is mainly manifested in the following aspects: as far as the commercial law system is concerned, the commercial law system itself is diverse and complex, and it is difficult to form the same legal principles, and there is no sufficient internal relationship between the various components. Judging from the historical factors of the formation of commercial codes in Germany, France and other countries, commercial rules are originally the "abandoned children" of civil law, and commercial codes are the accommodation places of "stragglers" outside civil law, and their internal relations are far less than those of civil law. In addition, the commercial legal norms themselves lack the necessary similarity. The separation of civil and commercial law is not a scientific structure, but a product of history. [7] commercial law norms have not formed a completely independent adjustment method, and its method is still to establish a legal relationship with rights as its content; There is no independent adjustment object, and its object is still the relationship between equal subjects. The content of commercial law is mainly to change, supplement or exclude the norms of civil law. [8] From the perspective of historical development, the commercial codes of France, Germany, Japan and other countries were not only formulated earlier, but also far less perfect in form and rationality than the civil codes. Neither the structure and content of the commercial code nor its position in the legal system can be compared with the civil code. Because commercial law has no solid foundation and tradition as civil law, and there is no rigorous and profound commercial law theory to influence the legal system and legislative activities of European countries, it is doomed that its appearance will not only shake the traditional position of civil law, but also face the powerful expansion and inclusiveness of civil law, and it will gradually lose its independence. [9]

Second, the integration of civil and commercial law and civil and commercial law

In order to make up for the theoretical lack of separation of civil and commercial affairs, the voice of advocating the integration of civil and commercial affairs is gradually rising. Advocates of the integration of civil and commercial affairs can be divided into two groups according to their different meanings: one advocates "commercialization of commercial law" and the other advocates "commercialization of civil law". The former advocates that commercial norms should be incorporated into the civil law without a separate commercial code, and that commercial law should be replaced by civil law on the grounds that commercial law is not as individual as civil law, and the principles of civil law can solve all commercial problems. The latter advocates building a civil and commercial legal system with commercial law as the main content, guiding civil law with commercial law principles, and integrating civil law system into commercial law, on the grounds that modern society places more emphasis on the promotion of commercial activities to social economy. [10] In these two views, the mainstream is civil law and commercial law. Judging from the actual situation of countries that implement the legislative system of civil and commercial integration, the civil law of commercial law is also their legislative model. So "civil and commercial integration" in the usual sense refers to the civil law of commercial law. With the deepening of the discussion on the formulation of civil code in China in recent years, some people in the field of civil law have clearly put forward the idea of formulating a civil code that integrates civil and commercial affairs. It is believed that the essence of civil and commercial integration is to concentrate the same rules used in civil life and the whole market in the civil code, while the rules applicable to local markets or individual markets are stipulated in various special civil laws and commercial laws. As far as legislative practice is concerned, Switzerland is the first modern country to adopt the legislative style of civil and commercial integration. 19 1 1 On March 30th, Switzerland adopted a unified debt code. Italy, which once separated civil and commercial affairs, formulated a comprehensive new civil code including civil and commercial laws in 1942. The new Turkish Civil Code 1926 also accepted the integration of the Swiss Civil Code. Thailand, Hungary, Yugoslavia, Russia and other countries have also adopted the system of civil and commercial integration. Therefore, some scholars assert: "The modern trend of civil law system is towards the unification of code, including the unification of commercial code and civil code." [ 1 1]

The main theory of the theory of civil and commercial integration is based on the denial of businessmen and business behavior as the legislative basis of traditional commercial law. That is to say, the development of commodity economy leads to the universal commercialization of people, leads to everyone being a businessman, and leads to the integration of commercial subject and civil subject, so commercial law should be integrated into civil law; On the other hand, the development of commodity economy leads to the integration of commercial function and production function, and the integration of commercial function and production function leads to the integration of civil behavior and commercial behavior, so commercial law should be integrated into civil law. The above reasoning is far-fetched. The so-called universal commercialization of people caused by the development of commodity economy only means that most people get involved in the market and participate in market exchange after the commodity economy is highly developed, but this does not mean that all people engaged in commodity exchange activities are businessmen, and the essence of business behavior lies in the profit-seeking activities of capital. Therefore, businessmen should only be defined as the personification of capital. So we can't think that under the condition of modern commodity economy, many civil subjects have been involved in the market and participated in commodity exchange, so we can't think that civil subjects have been integrated with commercial subjects. Businessmen are still independent subjects different from ordinary civil subjects, and commercial law is still manifested as the identity law of modern businessmen. However, the characteristics of merchant identity in traditional commercial law are based on merchant privilege, while the characteristics of merchant identity law in modern commercial law are based on the specific personality of modern civil law. The obvious difference between commercial subject and civil subject is that commercial subject extends its scope to company. The emergence of the company system not only expands the scope of the subject from a simple natural person to a social organization without natural thinking ability, but also makes the raising of the subject capital exceed the limitation of the ability and financial resources of a single natural person, so that the subject personality can last forever without being attached to the life span of a natural person. More importantly, the company is an economic organization with the sole purpose of making profits. And "effective economic organization is the key factor of growth; The reason for the rise of the western world lies in the development of an efficient economic organization. " [12] Moreover, the integration of commercial functions and production functions only indicates the expansion of the scope of capital activities as a business, but does not indicate the integration of commercial behavior and civil behavior. Commercial law in the modern sense is no longer a simple personal law, but a legal department with all commercial activities and commercial relations as its adjustment scope. Business behavior is not limited to professional businessmen. On the contrary, anyone who carries out business activities will be subject to the jurisdiction of commercial law, such as corporate behavior, bill behavior, securities behavior, bankruptcy behavior, commercial transaction behavior and so on. Although commercial law is born out of civil law, it has legal principles and systems completely different from civil law, its theoretical basis and adjustment methods, and it is by no means the concretization and specialization of the basic principles and systems of civil law in the commercial field. [13] The profit-making particularity of commercial activities has transformed the principle of equality and freedom in civil law into the principle of commercial law with new connotations.

Thirdly, the commercialization of civil law and the formulation of Chinese civil code.

(A) the commercialization of civil law and its legislative practice

The commercialization of civil law is mainly manifested in its absorption and reference of the contents, principles and rules of commercial law. The so-called "commercialization of civil law" has two meanings: first, the concept or system formed by commercial transactions and commercial laws is gradually adopted by civil law; Second, it was originally a system or legal relationship in civil law, and later it was gradually dominated by commercial law. This theory does not advocate the return of commercial law to traditional civil law rules, but advocates mutual absorption. When formulating the contract law, China adopted the legislative model of civil law and commercial law, and established the legislative model with commercial contracts as the norm and civil contracts as the exception. Thus, the organic combination of civil law and commercial law is realized, which provides us with a model of civil and commercial integration. Of course, we emphasize the mutual penetration and assimilation of civil law and commercial law, mainly to show that their contents overlap and are close to each other, and their differences in adjusting social and economic relations are narrowing and their functions are converging. However, this does not mean that civil law and commercial law have been integrated and no longer exist independently of each other. Although the civil law has been commercialized day by day, the commercialized civil law will have stronger vitality and adaptability, and it is impossible to become a commercial law.

(B) the basic ideas and ideas of the compilation of China's Civil Code

The author thinks that the basic idea and train of thought of compiling civil code in China should be: on the basis of correctly defining and recognizing the differences between civil and commercial laws, unify the legislation of civil and commercial laws by compiling commercial laws. In modern society, especially in countries with market economy system, civil law is the basic law to adjust commodity economy and the "constitution" of commodity society. The emergence and development of civil law is the result of the interaction of various conditions in social life. Creating laws is the same as creating history. "They were not created at will, not under the conditions they chose, but under the conditions they directly encountered, established and inherited from the past." [14] The 20th century civil law will continue to develop on the basis of the 20th century civil law, and will face some more challenging problems to be solved. At the turn of the century, civil law is undoubtedly in a state of monism and pluralism, liberalism and communitarianism. [15] We should carry out a successful modern transformation of the traditional civil law: adapt to the whole modern society and formulate a mixed civil and commercial code, that is, on the basis of correctly defining and recognizing the differences between civil law and commercial law, unify the legislation of civil and commercial law by compiling commercial law. Of course, there are two points that cannot be ignored in the unified legislation of civil and commercial affairs. First, the formulation of civil law in the future must meet some special requirements of commercial activities, and the unification cannot ignore the differences between different subjects and different activities; The second is to track the changes in business activities in the new period, so that our laws will not be irrelevant to the current business situation and become outdated laws. [ 16]

At present, China has to adopt a unified legislative style of civil and commercial law, mainly for the following reasons: First, there is no distinction between civil and commercial law in terms of adjustment objects. Both civil law and commercial law regulate market subjects and their activities. Market economy must depend on commodity economy and exist on the condition of understanding and realizing the basic requirements of commodity economy. There is no clear boundary between commercial behavior and general civil behavior in judicial practice, and both of them will have certain rights and obligations. The separation of civil and commercial legislation may cause difficulties in applying the law. Secondly, the legal nature and attributes are the same. Civil law and commercial law belong to the category of private law in nature and to the law of rights in normative content. The complete separation of civil and commercial affairs is suspected of separating the same legal relationship, which is not only conducive to the unity of private law system, but also to the in-depth development of private law theory. Finally, the legislative conditions for the separation of civil and commercial affairs are not available in China. In all historical stages of China's development, businessmen did not form an independent class, but attached to other subjects. At present, businessmen have not formed an independent class, so China lacks the main basis for the separation of civil and commercial affairs. Moreover, generally speaking, the separation of civil and commercial law must be based on the high degree of democracy and development of civil law, and the desire for commercial law will only arise when the existing civil law norms are unable to adjust the complex social and economic relations after the civil law has developed to a certain stage. At present, the actual situation in China is that the civil law itself needs to be improved and promoted, and the concept of civil law needs to be further deepened. When civil legislation needs further development, especially when the civil code is still lacking, it is tantamount to building skyscrapers on the beach.

The author has always believed that although the civil law mainly adjusts the property (economic) relationship, in terms of its emergence and evolution, the civil law pays more attention to the value, legal status and rights of people (especially citizens) than property. This is also one of the manifestations that civil law is different from commercial law. Therefore, for civil law, only people themselves are the purpose, and property is only the means to realize people's purpose. If we put the cart before the horse and take the adjustment of property relations as the main focus and core content of civil law without paying attention to the promotion and confirmation of human rationality, then the resulting civil code can only distort and alienate the essence of civil law. [17] Therefore, the legal adjustment of market economy should be realized mainly through commercial legal norms. Although the one-way commercial legislative model currently adopted in China has the advantages of flexibility and simplicity, its disadvantages are also obvious: due to the lack of a general legal coordination, the one-way commercial legislative model makes each one-way law an isolated and single law, which cannot form the internal relationship of the commercial law system, resulting in confusion, lack of commander-in-chief and fragmentation of commercial law. This is not conducive to the unification and standardization of China's market economy relations, nor to a comprehensive understanding of the principles, systems and rules of one-dimensional commercial law, nor to the implementation of one-dimensional commercial law. [18 ~ 19] Because there is no general commercial legislation, China has not yet formed a complete basic theory of commercial law, a systematic commercial law theory, a scientific commercial legal system and content. It is not only conducive to the formation of China's independent commercial law system, but also conducive to the unified understanding and effective implementation of China's separate commercial laws and regulations.

It can be seen that the unified legislation of civil and commercial law is not simply to incorporate the commercial law into the civil law, or to completely incorporate the commercial law into the civil law, or to completely replace the commercial law with the civil law, but to fully integrate the contents of the civil law and the commercial law on the basis of fully realizing their respective particularities. A systematic and complete group of civil and commercial laws and regulations, with civil law, commercial law, intellectual property law and family law as their respective legal categories and a series of special laws as special laws, will give full play to the adjustment of civil and commercial laws to the economy.

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