Development Status of Civil and Commercial Integration in China

"Integration of Civil and Commercial Affairs" and "Separation of Civil and Commercial Affairs" are two legislative forms or compilation modes to deal with the relationship between civil and commercial laws. The formation of different modes has its historical background and conditions at that time; Different countries in the same period and a country in different periods adopt different legislative forms, which are determined by various factors such as local history, legal culture and so on.

In order to measure various factors, China has adopted the legislative form of "civil and commercial integration". The reason is:

1, because of the commercialization of civil law and the civilization of commercial law, the relationship between civil law and commercial law has become closer.

The so-called commercialization of civil law and commercial law means that with the mutual penetration and blending of civil relations and commercial relations, civil law norms have absorbed many commercial legal rules and practices and expanded their adjustment scope to the commercial field; Or in line with this, due to the disappearance of the special status of businessmen, commercial law has increasingly become a law applicable to commercial transactions between equal subjects, thus making commercial law norms have the characteristics of civil law norms.

Although the civil law has been commercialized day by day, the commercialized civil law will have stronger vitality and adaptability after enriching the norms of modern commercial relations, and the adjustment of modern economic relations will release more energy. In any case, the commercialization of civil law will not affect the fundamental leading position of civil law in the contemporary private law system; The commercialization of commercial law just reflects the trend of assimilation and absorption of commercial law norms by civil law.

In today's society, the commercialization of civil law and the nationalization of commercial law have appeared. The most fundamental reason is that the traditional boundary between commercial relations and civil relations has been broken. With the development of socialization of production and the unspecific subject of commercial transactions, the scope of commercial transactions has expanded to industries, agriculture, real estate, securities, futures and other fields. The development of "pan-commercialization" promotes the "return" and convergence of commercial law to civil law, and promotes the mutual penetration of civil law and commercial law, which has become the mainstream of contemporary private law.

2. The legislative practice in the world and China has proved that the integration of civil and commercial affairs is feasible.

Although the French Civil Code, the German Civil Code and the Japanese Civil Code, which are representatives of the traditional civil law in the civil law system, all adopt the separation of civil and commercial affairs, they have not been used for reference by the legislation of countries where civil and commercial affairs are separated because of their wide spread. We can see that since the 20th century, Swiss, Soviet Russia, Thailand and other countries have adopted the principle of separation of civil and commercial affairs, and the civil law in old China has also moved from separation of civil and commercial affairs to integration of civil and commercial affairs. "Civil and commercial integration" has become the trend of the world today.

The civil and commercial legislation in old China developed the traditional theory of integration of civil and commercial affairs, absorbed some advantages of separation of civil and commercial affairs, and established an open model of integration of civil and commercial affairs, which solved the problems of civil and commercial relations in modern economic life, and had reference significance for our country to formulate the civil code.

When Nanjing National Government formulated the civil code, President Hu and Vice President Lin Sen proposed to formulate a unified civil and commercial code. The author thinks that the reasons stated are quite profound and scientific, and there is still no lack of reference value for us to understand and treat commercial law. The main points can be quoted as follows:

(1) "Commercial law became a special code outside the civil law, which actually began with the French emperor Louis XIV. After Wei inherited the class system, businessmen had their own identity laws in view of other classes, and then organized groups to become merchant classes. The code of commercial law is gradually formed, which is the opposition between commercial law and civil law and a special merchant class with genes in history. Since the beginning of the Han Dynasty, the four people have been ruling together, buying and selling money and goods, with high debts, and there is no distinction between civil and commercial affairs. Although there was a discussion on the division of civil code and commercial code in the Qing Dynasty, and there have been provisions since the Republic of China, in fact, businessmen do not have a special class. How can they discriminate?

(2) "Those who oppose the unification of the civil and commercial code say that the commercial law focuses on progress, while the civil law stipulates that it is mostly fixed. This is a thing of the past. I don't know if there is any code to modify, but it should be progressive. Lawmakers think it should be amended, which has nothing to do with the integration of civil and commercial affairs. For example, Britain's civil and commercial integration, and after the implementation of the company law, there have been several amendments, while Germany is a country where civil and commercial separation, but the changes in commercial law are not as good as Britain's, so the progress is not in the integration of civil and commercial.

(3) "Those who oppose the unification of civil and commercial codes say that commercial law is international, but civil law is not. This is also based on the old view that civil and commercial laws and regulations should be unified. Legislators can make discretionary provisions on whether commercial laws and regulations should be similar, and will not lose the use of legislation because of unification.

(4) "In the past, commercial laws of all countries were people-oriented, that is, all businessmen participated in commercial laws, and so did the commercial laws formulated by Germany 1897. After the arrogant revolution, France thought that there should be no special code for some people, so its commercial law took behavior as the standard, that is, all commercial behaviors were included in the commercial law. However, what kind of behavior is a commercial behavior, in fact, it is sometimes quite difficult to distinguish. If China also compiles a commercial code, the standard will be extremely difficult to determine.

(5) "The contents of commercial laws in different countries are extremely inconsistent. Japanese commercial law is divided into five parts: general provisions, companies, commercial acts, bills and maritime business. There is no bill in German commercial law, but in France it is written into the commercial law code by bankruptcy law and commercial court organization law. It can be seen that the matters that should be stipulated in the commercial law do not have a certain scope, but are classified as independent codes, which will only cause you trouble. There should be a general rule in the recoded code, and the outline should be comprehensive enough to run through all, but commercial law cannot use general rules to run through all.

(6) "In a country with a commercial code, its commercial law is only a special law of the civil law, and the most important sales contract is still stipulated in the civil law, while the commercial law is still applicable to profit-making corporate bodies in the civil law. Except for special circumstances, such as bank transfer, there are many similarities between civil law and commercial law, and there is no parallel between the two laws. The division of civil and commercial affairs, if one party is a businessman and the other party is not a businessman, is also difficult to adapt. "

The legislative practice of New China also embodies the legislative system of "civil and commercial integration". In particular, the formulation of the Contract Law organically combines civil law with commercial law and provides a model for the integration of civil law and commercial law. Contract law adopts three methods to deal with the contradiction between civil law and commercial law. First, in a certain kind of contract, both the so-called contractual relationship with the participation of businessmen and the contractual relationship without the participation of businessmen are stipulated. For example, Chapter 12 "Loan Contract" of the Contract Law clearly stipulates the loan relationship between citizens and the credit relationship in which banks participate. Second, only stipulate the contractual relationship in which the so-called businessmen participate, while ignoring another relationship, or vice versa. For example, Chapter 2 1 of the Contract Law only stipulates commercial entrustment contracts. Third, do not distinguish between civil rules and commercial rules, but use unified rules to make unified adjustments. If there are exceptions, the exception clause shall apply. For example, the contract law stipulates the form of contract behavior and the obligation to notify defects.

3. The necessity of establishing the legal system of socialist market economy.

According to the goal of building a country ruled by law put forward by China government, a perfect legal system suitable for developing market economy and building a country ruled by law should be built before 20 10. The legal system of socialist market economy is a necessary condition for the establishment of socialist market economy system, especially after China's accession to the WTO, it is necessary to establish and improve the legal system of socialist market as soon as possible. In recent years, the China legislature has done a lot of work and achieved remarkable results. An important feature of market economy is to emphasize the equality of market subjects and deny the differences of their identities. Therefore, it is unrealistic and unnecessary to artificially regulate the behavior of "businessmen" as a special subject and formulate a commercial code outside the civil code.

Of course, it must also be pointed out that the legislative system of "civil and commercial integration" that we want to establish should be "open". The open mode of civil and commercial integration is different from the separation and parallel of civil and commercial, in order to maintain the essential unity of civil law and commercial law in private law; It is also different from the traditional integration of civil and commercial law, and paranoid demands that all the contents of commercial law be included in the civil code. The open mode of civil and commercial integration should be the organic combination of civil code as a special civil law and commercial special law.