The position and function of commercial law in modern society

Shang is a popular word in China today. After a long period of cultural repression of attaching importance to agriculture and restraining commerce, and during the period of "cutting off the capitalist tail" in the early days of the People's Republic of China and the long-term planned economy era, China implemented a socialist market economy and vigorously developed the tertiary industry, including commerce, and the people had high expectations for "commerce". But in the reality of our country, "Shang" really suffers from too many myths, as if everything and "Shang" are in spirit. In legal research, commercial law is also a very hot topic.

The study of commercial law in this paper is not only because of the popularization of commercial law, but also because of the debate on the nature of commercial law in academic circles. For example, scholars generally believe that civil law and commercial law are private laws, and commercial law is a special law of civil law and a part of civil law [1]; However, some scholars deny that commercial law is a special law of civil law, and think that commercial law originated from merchant customary law in medieval Europe and has nothing to do with civil law from the beginning [2]; Most scholars agree that commercial law is not an independent legal department [3], and some scholars argue that commercial law should be an independent legal department, or one of the important legal departments among many legal departments [4]. In addition, the integration of civil and commercial affairs or the separation of civil and commercial affairs, the spirit of commercial law and other issues are also the focus of controversy. This paper attempts to study the position of commercial law in modern society through the investigation of commercial law.

I. Redefinition of the concept of commercial law

The concept of commercial law is really confusing in reality. Related to it are commercial law, commercial law, commercial law, commercial law, commercial law and so on. In English, there are legal businessmen, commercial law, commercial law and so on. Although the author has made a detailed analysis and discussion in the article "On Commercial Law" [5], it is necessary to further emphasize it here.

(1) Commercial Law and Commercial Law

The so-called commercial law is "the general name of customary laws, regulations and principles concerning businessmen and commercial affairs in the Middle Ages." [6] Therefore, merchant law is a concept formed in history, and it is the general name of merchant customary law formed in history. Relatively speaking, the concept of commercial law is more used in the division of legal departments and the formulation of codes. It is generally believed that commercial law is "a departmental law that is juxtaposed with civil law and complementary to each other, that is, the general term for adjusting the legal norms of businessmen, commercial organizations and commercial activities in the relationship of market economy"; [7] or "special laws regulating businessmen, business organizations and business activities" [8]. Therefore, there are essential differences between commercial law and commercial law:

First of all, commercial law is a historical concept, and the more accurate title should be merchant customary law, while commercial law is a realistic concept in the sense of code, and its most essential feature is that it relies directly or indirectly on the state coercive force as the backing. Therefore, if strictly according to the definition of law, merchant law is customary law rather than law, because it is not backed by state coercion, this conclusion can be drawn from the historical investigation of the development of merchant law below.

Secondly, the essential spirit of commercial law and commercial law is different. From our historical investigation of commercial law, we can see that the emergence and development of commercial law are permeated with the spirit of seeking truth from facts, being pragmatic and innovative. Due to the influence of politics and religion in medieval Europe, commercial activities were not recognized by the ideology of mainstream society, and commercial activities could not be protected by existing laws at that time. However, it is undeniable that the revival of business along the Mediterranean coast or the whole European continent needs to regulate the activities of businessmen. Therefore, businessmen spontaneously looked for the basis from the civil law of Roman law and directly applied it to commercial activities in the Middle Ages. This kind of activity is an objective activity in which the corresponding system is discovered only after there is an objective need.

However, contrary to the activities generated by the objective needs of commercial law, the emergence of commercial law can be said to be a subjective activity, lacking an objective realistic basis. Although the discussion on the characteristics of commercial law all mentioned the technical types, the effectiveness of the system, the flexibility of the method and the universality of application of commercial law, the reality of investigating commercial law was formulated by Napoleon in a rage to solve the problem of frequent mistakes in arms supply that affected his military activities, which can be called a typical "slap the head" code. Therefore, the French commercial code was not a flower from the fertile soil of social needs from the beginning. Although it has been revised several times, there are only dozens of effective provisions. From this situation, we can see that commercial law lacks the spirit of seeking truth from facts, or it is only the product of personal subjective activities, and it is not the real demand of social development.

(2) Commercial Law and Commercial Law

In foreign language translation, we often encounter the word commercial law in common law and commercial law. The accurate translation of these two words should be a problem that needs to be clarified here.

It should be said that commercial law is a concept of civil law system. There is no division of legal departments in common law countries, so there is no concept of commercial law in the sense of division of legal departments, only the concept of commercial law, which should refer to the laws related to enterprises or operations. If we reluctantly say that translation into commercial law is a past tense, it can be understood as a law related to commerce, and translation into commercial law is a misunderstanding. By studying the concept of commercial law in Anglo-American law, we can find that it not only stipulates the contents of companies or commercial organizations in the commercial law of continental law system, but also involves anti-monopoly law, tax law, consumer rights protection law, and even includes real estate, wills, trusts, intellectual property rights, etc., which is not the concept of commercial law mentioned in continental law system at all. [9] If the commercial law is forcibly corresponding to the commercial law, it will be misunderstood in more cases. Therefore, the concept of commercial law should be used to express commercial law, and at the same time it should be different from commercial law.

The use of the concept of commercial law is also an inaccurate concept in China, because the use of commercial law in China actually refers to the concept of "planned economy commercial law". "Commercial law usually refers to the commercial law of planned economy", that is, "commercial legislation in planned economy countries". Its legislative scope is limited to domestic commerce, and its content is completely different from traditional commercial law. It stipulates: (1) the role and position of commerce; (2) The basic tasks and purposes of the business; (3) State leadership and supervision over commercial work; (4) Business activities should be carried out under the guidance of national policies and plans; (5) safeguarding the interests of consumers. [10] As can be seen from its contents, the contents of commercial law and commercial law are quite different. In essence, commercial law should be the general name of legal norms based on industrial policy law.

Furthermore, for the translation of commercial law, some are called "commercial law" and some are directly called "commercial law". We have already analyzed the concept of commercial law, so I won't repeat it here. As for the practice of translating commercial law into commercial law, one thing must be clarified. Now some scholars refer to the Uniform Commercial Code of the United States as commercial law and regard it as an example of codification of commercial law. [1 1] This is a misunderstanding. Although we can generally call it "commercial code" in translation, even these scholars themselves admit that the unified commercial code in the United States "has different interests from France, Germany, Japan and other civil law countries in content and system." How can you simply think it is a commercial law just because the names are similar? In fact, the contents of the Uniform Commercial Code are complicated, including commercial bills of exchange, bank receipts and deposits, letters of credit, manifests, bills of lading and other ownership documents, investment securities, etc. , as well as the contents of goods sales (mainly about contracts) and secured transactions. It is actually a collection of commercial laws and regulations, and it is by no means a "symbol of the emergence of modern commercial law" praised by some scholars [65438+]

Second, the preservation and abolition of commercial law.

The related concepts of commercial law are defined, and the further investigation of commercial law is naturally inseparable from the investigation of the history of commercial law. In fact, we can also get a lot from the history of commercial law, and directly demonstrate the positioning of commercial law in modern society. Whether it is the argument that commercial law still has a place in modern society, even it is necessary to formulate a special commercial code, or the argument that commercial law is gradually dying out, civil and commercial law is integrated, and private law is integrated under the modern pan-commercialization situation, we will investigate the reasons for the emergence of commercial law in history and real life, but we will draw different conclusions from different mastery and analysis of materials. Therefore, it is necessary for us to look at history first, and then look back at the situation of modern social life. At the same time, we hope that we can no longer rely on law textbooks to analyze the historical statement of the development of commercial law, because we find that discussions in the field of law generally use the same materials. We hope that with the help of the conclusion of historical investigation, we can make a clearer investigation of this process. At the same time, because the historical investigation of this process is an extremely macro perspective, it is necessary to learn from sociological analysis and research methods, more specifically, to be guided by social structure theory.

(A) the existence of commercial law from a historical perspective

1, the emergence and development of modern commercial law

When it comes to the emergence of modern commercial law, the prevailing view is that commercial law originated in various autonomous cities along the Mediterranean coast in the eleventh century. At this time, it was in the dark period of European medieval rule, and feudal system and church system were extremely popular. How did the commercial law incompatible with feudal law and church law come into being? This is an extremely complicated process.

Due to historical reasons, with the decline of the Roman Empire, in the seventh century A.D., Islamists invaded the Mediterranean basin, which blocked the Mediterranean Sea, the original "inland lake of the Roman Empire", from the southeast and west, and Europe fell into a dark medieval period. "The Mediterranean blockade caused by the expansion of Islam in the seventh century will inevitably lead to the rapid decline of the above-mentioned commercial activities. In the eighth century, the commercial pause made the merchants disappear, and the city life maintained by the merchants also tended to decline. Of course, Roman cities still exist because they are the centers of parish management ... However, these Roman cities have lost their economic importance and the significance of urban management. " [13] Whether a few pilgrims from the northern shore of the Mediterranean tried to make a pilgrimage to Mecca through the Mediterranean, or the pirate activities near the North Sea and the Baltic Sea, it proved that the existence of commerce in this period was futile. "From all angles, after the 9th century, Western Europe is basically an agricultural society." [14] What suits this agricultural society is the prosperity of feudal forces and church forces, and commerce has no place in this society at all. However, from the above records, we also find that medieval cities in Europe can be divided into parish administrative regions, urban administrative regions and economic regions.

However, the impulse of business is irresistible to human beings. After centuries of commercial extinction, the commercial activities in the Mediterranean, the North Sea and the Baltic Sea all slowly recovered after the ninth century, which stimulated the commercial activities in the western European continent from both north and south. The earliest commercial revival came from the Mediterranean coast, which was the birthplace of modern commercial law.

No matter how the original merchants appeared, it is difficult to trace back accurately due to the lack of historical materials, but one fact can be known: according to Norman J.G Pound's estimation, in 1050, the merchant class in western Europe reached several thousand, and in 1200, it actually reached hundreds of thousands. [15] In the long and dark Middle Ages, businessmen, as the only sustained and active economy along the Mediterranean coast, showed a glimmer of light of human civilization, but their development experienced hardships. The main performance is:

First, businessmen have certain wealth in economy, but they have no position in politics and are excluded by society. Because the social structure of medieval Europe was mainly based on urban agricultural society, urban life was very important to people. However, the behavior of businessmen in commercial activities and the behavior of seeking commercial interests did not conform to the mainstream ideology at that time. Therefore, in the city that Henry Pita said is the administrative center of the parish, there is no environment for businessmen to survive. But businessmen did not die out because of this, but created their own business places and evolved into commercial cities. These cities are usually autonomous, because feudal or religious forces usually do not involve this place, or sometimes feudal or religious forces need to rely on the help of these businessmen: on the one hand, the spices and luxury goods needed by the church need to be obtained from businessmen, on the other hand, the split situation in medieval Europe does not allow feudal forces to interfere too much in these autonomous cities. Therefore, businessmen are like a duck to water in these autonomous cities and develop rapidly.

Second, ideologically, the European medieval canon law prohibited profit-making behavior, which dealt a great blow to businessmen. A story recorded in the biography of St. Greer in Orilac shows that the moral standards of the church are incompatible with business practices: St. Greer came back from a pilgrimage to Rome and met some Venetian businessmen who sold him oriental goods in pavia. He took the opportunity to show the businessman a bishop's robe he bought in Rome and explained its price. Businessmen congratulated him on his prosperous business because they thought that the same bishop's robe would be more expensive in Constantinople. Graer blamed himself for cheating the seller and immediately sent back the difference, because he didn't want to be insatiable and commit insatiable crimes. [ 16]

It is against the church law to seek commercial benefits in business activities, so businessmen are not very comfortable in business activities. Many bankers and speculators have stated in their wills that they should compensate the poor who have been deceived by them and donate part of their industries to the church. For example, Bishop Cambre recorded the story of Wei Lingbo: Wei Lingbo married the daughter of a wealthy businessman and greatly expanded his business. He collected a city gate tax and built a bridge at his own expense, but after his death, he donated most of his property to the church. [17] The purpose of this is to obtain pardon in the final trial of religious propaganda. This practice of businessmen actually stimulated the deregulation of commerce by the church, so commerce could grow in the medieval environment of Europe.

In addition, not only did businessmen donate money to the church after their death, but they also helped the church before their death to improve their status. Businessmen use their wealth to build country churches, hospitals, soup kitchens, etc. Not only for the benefit of our compatriots, but also for the happiness of our souls, we have invested a lot of wealth in religious charity. Therefore, religion does not simply prohibit business, but stimulates businessmen to grab more wealth and give it to God.

The above explains the development of European commerce in the Middle Ages. It is precisely because of the great prosperity of commerce, and the traditional law is adapted to the agricultural production situation of feudal society in Europe, so the law to adjust the relationship between businessmen needs to come into being naturally in business exchanges. But one thing should be clear: the legal knowledge in the Middle Ages is not in the hands of jurists, but in the hands of church clergy, and the church will not obviously make laws or make judgments for businessmen who betray religious spirit. Therefore, businessmen can only actively organize groups (businessmen Telki) to protect their own interests. Businessman Tarkki has autonomy and judicial power, and according to his own business habits, he made an autonomy statute, which became a merchant law over time. [18] When Tarkki, a businessman, made the autonomy statute, he could only find the corresponding provisions from the civil law of Roman law and revise them due to the lack of legal knowledge. In addition, after the demise of the Western Roman Empire, people still acted in accordance with the principles of Roman law in business activities everywhere, which made the relevant principles and institutionalization of Roman law remain as business habits, and these habits became the basis of commercial law during the period of business recovery and development. [19] Therefore, in essence, the commercial law of that era was a revision of the Roman civil law.

From the above historical investigation, we can sum up several conditions for the emergence of medieval commercial law:

First, urban autonomy. In feudal society, people's life was extremely narrow, limited to urban life. Due to the division, the feudal regime can only effectively control a few cities, but not completely control the whole territory. Therefore, the country in this period was only a political country and did not fully participate in social and economic life. This provides a prerequisite for businessmen to create autonomous cities themselves. These cities "can neither originate from the earl's castle nor from the center under the jurisdiction of the grand parish." Geographically, they were established at the intersection of commerce and trade, and appeared in areas where feudal relations were weakest, feudal rule was beyond reach or power vacuum. For example, cities in medieval Germany were originally "castle protected areas" or public land borrowed by some merchants from the earl's territory, which were enclosed as temporary sales points or houses. " [20]

Second, the emergence of the merchant class. As the main body different from farmers, feudal manor owners, feudal nobles and church personnel, businessmen not only appeared in real social life, but also grew stronger and stronger, trying to gain social recognition through various means. They not only have considerable economic power, but also infiltrate this power into politics and religion, and finally succeed.

On the other hand, due to the implementation of the long-term feudal system, a large number of feudal nobles appeared, and the king's method of expanding territory and increasing feudal fiefs of nobles could not meet the requirements of feudal nobles. There was also a division within the feudal aristocracy, and some nobles began to engage in commercial activities. "After the 13th century, Britain gradually formed the tradition that the eldest son inherited the fief, and the aristocratic children below the second son entered the business world." [2 1] Therefore, during this period, businessmen not only increased sharply in number, but also successfully gained a certain position because of their origins and formed a specific class.

Third, the medieval western European society as a whole was still in an agricultural society. Except for a few commercial cities, the number of commercial behaviors is small, or the types of commercial behaviors are relatively simple. Therefore, the business behavior of businessmen can be specified accurately. At the same time, businessmen will be easily recognized in the society at that time, and the application of commercial law has certain restrictions in the region. Not all people and places can apply commercial law.

In a word, the merchant law in medieval western Europe was formed by the development of commercial trade practice, and the merchant class developed from the merchant habits implemented in self-organized and autonomous commercial cities when the merchant class was not recognized by the mainstream society at that time. Its fundamental origin should be the civil law in Roman law, but the merchant law was reformed according to the needs of commercial practice at that time. Therefore, the development of commercial law is natural, and it is a prominent embodiment of pragmatic and innovative spirit.