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CHINA LEGAL SCIENCE 2019年第4期 | 商法典解构主义背景下我国商法体系的构建
日期:20-03-28 来源:CHINA LEGAL SCIENCE 2019年第4期 作者:zzs

CONSTRUCTION OF CHINA’S COMMERCIAL LAW SYSTEM UNDER THE DECONSTRUCTIONISM OF THE COMMERCIAL CODE


Cui Wenyu


TABLE OF CONTENTS


I. THE MAIN MANIFESTATION AND INFLUENCE OF DECONSTRUCTIONISM OF THE          COMMERCIAL CODE

A. Basic Judgment on the Development Trend of Modern Commercial Law

B. The Hollowing Out of the German Commercial Code and Its Reasons

C. Abandonment and Reconstruction of the French Commercial Code

D. Deconstruction and Rebirth of the Japanese Commercial Code

II. THE IMPACT OF COMMERCIAL CODE DECONSTRUCTIONISM ON THE CIVIL CODE        SYSTEM

A. General Provisions of the Civil Law: The Commercialization Trend of Civil Law Is            Obvious

B. Subsections of the Civil Code: The Internationalization Trend of Civil Law Is More          Obvious

III. CONSTRUCTING CHINA’S COMMERCIAL LAW SYSTEM UNDER THE                              DECONSTRUCTIONISM OF COMMERCIAL CODE

A. General Principles of the Commercial Law or the Commercial Code

B. Constructing a Commercial Law System with Enterprise Law as the Core

IV. CONCLUSION


Since the 19th Century, modern commercial law has incorporated various economic acts of different nature into the scope of regulation of commercial law. However, the principles and systems traditionally regarded as peculiar to commercial law, such as the principle of freedom of contract and the representative system, have been upgraded to the basic principles and systems of civil law. As a result, while the commercial law expands its scope of application in terms of denotation, the unique characteristics of commercial law are gradually lost and the boundary between civil law and commercial law becomes more and more blurred. According to the General Provisions of the Civil Law of China, limited liability companies, joint stock companies and other enterprise legal persons have been included in the scope of profit-making legal persons and become an important part of the civil subject, thus showing a clear tendency of civil law commercialization. However, since profit-making acts can neither be effectively incorporated into the people-oriented concept inherent in civil law as a universal provision, nor can it be externalized into specific rules of conduct as a supplement to the basic law of civil law, moreover, the legal person cannot cover all enterprises and the enterprise subject is distinctly different from other civil subjects in terms of the purpose of act and the requirements of act, under the background that the General Provisions of the Civil Law has been promulgated, it is both necessary and possible to emphasize the particularity of enterprises and to construct a commercial law system with enterprise law as the core.


With the development of social economy, various new types of enterprise organizations and business activities have continuously emerged, which has put forward higher requirements for commercial legislation in countries. In order to cope with the challenges posed by the social and economic development, especially the new technological revolution, to the commercial law system and commercial code, some changes have taken place in the commercial legislation of various countries. At the same time of perfecting and solidifying the commercial code, in some countries, there has also appeared the tendency of the civil law commercialization, the hollowing out and fragmentation (disintegration) of the commercial code and some countries have replaced the existing legislative model of the commercial code by means of enterprise codification. As for China, under the background of the legislative choices favoring the civil and commercial integration, how to orientate the future development of China’s commercial law system is not only an important academic issue, but also has a great impact on the trend of China’s market economy. Therefore, we need not only to accurately grasp the development trend of foreign commercial laws, but also to understand the actual needs of our country.


I. THE MAIN MANIFESTATION AND INFLUENCE OF DECONSTRUCTIONISM OF THE COMMERCIAL CODE


A. Basic Judgment on the Development Trend of Modern Commercial Law


There are mainly four basic development trends of foreign commercial laws: first, the integration and reconstruction of civil and commercial laws, represented by the Swiss Civil Code, the Italian Civil Code and the Dutch Civil Code; second, the hollowing out of the commercial code, represented by the Japanese Commercial Code and the German Commercial Code; third, the re-codification of commercial law, with the French Commercial Code as a typical example; fourth, the enterprise codification of the Commercial Code, represented by the Austrian Enterprise Code. The hollowing out of the commercial code was initiated in Germany in 1892 by the Limited Companies Act, which has remained outside the commercial code since its promulgation. Especially since 1965, joint stock companies have been completely excluded from the commercial code. The French Commercial Code began to de-codify the commercial law in 1966. After the amendment in 2000, the provisions of commercial relations were integrated to complete recodification of commercial law. Coincidentally, in 2005, when amending its commercial law, Japan separated the Company Law and the Insurance Law from the commercial code and promulgated the Company Code and the Insurance Code separately. However, it is obviously different from Germany in that when dividing company types, the Japanese company law incorporates limited companies into joint-stock companies and re-divides them into public companies and closed companies. As far as the actual operation is concerned, as a traditional commercial code country, Japan faces the risk of the commercial code disintegration far beyond that of Germany, which is not only due to the independence of company law and insurance law, but more importantly, the revised draft of Japanese Civil Law (the credit law) published on May 26, 2017 incorporated bond law into the civil law debt, which reflects the obvious tendency of commercial law commercialization.


The General Provisions of Civil Law of China were implemented on October 1, 2017 and the other parts of the civil code are also being compiled intensively. Accordingly, the civil and commercial law circles are also discussing in depth the relationship between the civil law and commercial law, especially the issues of the civil and commercial integration and the civil law commercialization. If the commercialization of civil law in the amendment of the Japanese credit law mainly focuses on technical amendments, then does the civil-commercial relationship involved in the formulation of China’s civil code involve academic and political considerations in addition to technical reasons? In fact, the hollowing out of the commercial code is not the only development trend of the world commercial law. The South Korean commercial law provides us with another observation sample. The South Korean commercial code is deeply influenced by Japanese commercial law, so in a sense, it can even be said that the South Korean commercial code is a copy of Japanese commercial law. However, in this wave of commercial code, there was almost no influence on the amendment of South Korean commercial law and there was no problem of hollowing out in the general principles of South Korean commercial law. Some people attribute this to the enterprise culture influence on legal design. In fact, the combination of the understanding of commercial law on the part of academic, politic and capital classes and social economy or enterprise environment is the fundamental reason for the stable development of the South Korean commercial code. It can be seen that it is not accidental that the commercial legal system in each country shows a certain difference, which not only reflects the unique legal culture of different countries, but also responds effectively to the needs of the unique social and economic environment of each country. As some scholars have said, ‘the commercial code is simply a product of social realities, a natural result of legal response to social problems, rather than the result of rational consideration and logical thinking.’ Perhaps in the current environment, facing the growing trend of international unification, rational considerations of legislative design will become more and more important, but it is impossible for the world to have a fully unified commercial code model.


B. The Hollowing Out of the German Commercial Code and Its Reasons


Germany is a representative country of civil and commercial separation legislation. Since its entry into force in 1900, the German Commercial Code has had a history of more than 100 years and has had a far-reaching impact on other countries. But on the other hand, we cannot help but see that the history of German commercial code development is not a history of gradual prosperity, but to some extent, it is even a history of gradual decline. This can be explained by a loss table of the commercial code, which is regarded as evidence of the decline of commercial law. For example, the promulgation of the German Stock Law on January 30, 1937 has emerged as a clue to the separation of German stock companies act from the commercial code. The promulgation of the new German Stock Law on September 6, 1965 officially marks the independence of German stock companies act from the commercial code. The German stock companies act specifies in detail the establishment, organization, management, business development and dissolution of stock companies from four aspects: joint stock companies, joint stock limited partnership, affiliated enterprises and special and punitive provisions. By the 20th Century, the provisions of the Commercial Code could not meet the requirements of the passenger transport law and the freight law, so that they were able to be enacted as today’s single laws. As a result of more than one hundred years of commercial legislation activities, the scope of application of the commercial code has become narrower and narrower, but apart from this reason, hollowing out has its own reasons. The German Commercial Code was established based on subjectivist legislative style. The main characteristic of subjectivist legislative style is to construct a commercial legal system with the concept of businessman as the core, that is, the application of the commercial law is based on the premise that the legal subject is a businessman. As far as the same act is concerned, the act is a commercial act, thus is governed by the commercial law, only if it is implemented by a businessman; the act cannot be governed by the commercial law, only if it is implemented by a non-businessman. This has resulted in the embarrassment that a certain act should be defined as a commercial act, but it is difficult to apply the commercial law because the subject does not belong to the businessmen, thus making the adjustment scope of the commercial code too narrow. And with the development of society, the businessmen established in the German Commercial Code cannot meet the requirements of the modern business subject and their main forms of property rights will cause the social contradiction and fail to achieve good social effects when applied. In addition, the German Commercial Code is not the product of codification in a strict sense and thus cannot achieve logical self-sufficiency through conceptual deduction and it is also limited by the weak theoretical basis and the underdeveloped market economy and thus its system is not highly open and inclusive. Finally, the formulation process of the German Commercial Code is full of controversy and its formulation also has strong political color that Germany hopes to gradually achieve the goal of legal unification in the entire German territory through the unification of commercial laws, thus, in Germany, the formulation of the commercial code is also considered to be the product of the special political conditions of the country. Therefore, the German commercial code presents a hollowing out trend.


Although the German Commercial Code shows a hollowing out trend for its own reasons and as a result of related commercial legislation, we cannot deny the historical significance of the legislative model of civil and commercial separation, nor can we deny that the independent existence of the commercial code has played a great role in promoting social and economic development. Since the emergence of the legislative style of civil and commercial separation in the early 19th Century, which was formed through the separate formulation of the commercial code, this kind of legislation has greatly promoted the development and prosperity of a country’s economy, especially commerce, because it pays much attention to the importance of commercial law. This is also one of the economic backgrounds of German choice to formulate a commercial code in the 19th Century. Practice has proved that the formulation of the German Commercial Code has enabled Germany to successfully complete the recovery of the national economy. Commercial circulation has made regional contacts more frequent, further promoting the unification of the internal market. The reason for the hollowing out of the German Commercial Code in the later period was that it was formulated at the end of the 19th Century. At that time, modern commercial activities were just beginning and limited by the economic level at that time, the adjustment scope of its provisions was bound to be narrow. With the development of modern commercial affairs, there will inevitably be situations in which the commercial law cannot conform to commercial practices. In order to meet the needs of social economy, it is inevitable to reconstruct and improve the commercial law. This experience and lessons of the German Commercial Code deserve our deep thought.


C. Abandonment and Reconstruction of the French Commercial Code


The French Commercial Code promulgated in 1807, as the first truly independent commercial code in the world, opened the legislative practice of civil and commercial separation and greatly influenced the commercial legislation of later generations. The French Commercial Code has its specific historical and cultural background. First of all, more than a century before the promulgation of the commercial code, France was influenced by the Italian merchant law and before the formulation of the civil code; there were commercial laws in the form of written law. France had successively promulgated A Collection of Commercial Decrees and a Collection of Maritime Decrees, which became the main basis for the subsequent formulation of the commercial code. It also showed that there was already a tradition of separate legislation of commercial and civil law in France at that time. Secondly, influenced by the enlightenment thinkers, the French bourgeoisie advocated the separation of civil and commercial codes during the outbreak of the French Revolution and thus enacted a number of separate decrees, which also laid the foundation for the formulation of the commercial code. Finally, the French law inherited many ideas of Roman law, including the tradition of not including commercial law in Roman law. It is in this historical and cultural background that the birth of the French Commercial Code was created. The commercial code of 1807 contains four parts, namely, the General Provisions, the Maritime Law, the Commercial Bankruptcy Law and the Commercial Procedures. Although imperfect, it pioneered the civil and commercial separation model for the first time and laid a foundation for the basic structure and normative content of the modern commercial code. Just as scholars believe that the French Commercial Code laid a foundation for the separation of civil and commercial law not only in form but also in substance. The French Commercial Code establishes a modern commercial law system that focuses on the adjustment of commercial organizations and commercial acts.


However, the commercial code promulgated in 1807 still has some shortcomings, such as the failure to construct a general rule to govern the whole code, which makes the chapters of the commercial code scattered and logically inconsistent; and there are some legal gaps in relevant rules and systems. The reasons for the defects of the commercial code can be summarized as the following two points: Firstly, the formulation process of the commercial code in 1807 could be described as hasty and even the formulation process was not standardized. Not only was it a proposal put forward by scholars without sufficient theoretical preparation, careful consideration and repeated deliberation, but it was more irregular in that the commercial code was passed by a discussion group formed by the civil law scholars of the Supreme Court, which would inevitably affect the value of the commercial code. Secondly, the French Commercial Code failed to reflect the commercial needs of the time. Although the 1807 code drew lessons from the advanced legislation in the past, it neglected the commercial provisions that the society should have at that time, for example, the basic commercial law norms such as joint venture companies, business assets, marketable securities, commercial leases, insurance contracts, etc. failed to be reflected in the commercial code. It is precisely because of the irregularity of the formulation process and the failure of the commercial code to adjust the increasingly complex and ever-changing commercial legal relations in a timely and effective manner that the French commercial code had congenital deficiencies. Thus, in the implementation of the commercial code in the days to come, there appeared the phenomenon of de-codification in the French commercial legislation.


Later in France, with the development of society, social relations became more and more complicated and the enactment of numerous legal texts and drafts made the law more unstable and might even affect the dignity of the French Republic. This aroused the public’s doubts about the law and at the same time, there were always calls for the restoration of codification and there emerged again tradition advocating complex inherent in French culture. Under the multiple factors, the French Commercial Code, which had been de-codified due to legal and economic realities, was re-codified, the Commercial Company Law of 1966 was incorporated wholly into the new commercial code and the current French Commercial Code was finally introduced in 2000. Compared with the traditional commercial code, the current commercial code has added more elements of public law and economic law, which reflects the complexity of social relations in the commercial field of the times. The process of de-codification to re-codification shows that commercial practice and commercial adjudication are the ultimate and direct impetus for the continuous updating of the content of the French Commercial Code.


The current French Commercial Code respects the existing legal system and actively coordinates the contradictions between the old and new norms, compared with the previous commercial code legislation, it has made progress. Although some scholars believe that the re-codification of France is not complete, for it only adopts the method of legal compilation, but still does not fundamentally solve the problem of lack of systematization and logicalization, France still adopts the form of commercial code and does not abandon the legislative model of civil and commercial separation, but instead, on this basis, it enriches the content of commercial code, especially the perfection of the general provisions of the current commercial code, thus improving the independence of commercial law. In view of this, the experience and lessons of codification, de-codification and re-codification of the French Commercial Code over more than 200 years, as well as the general provisions of the current commercial code, are still of great reference value for China’s civil and commercial legislation model.


D. Deconstruction and Rebirth of the Japanese Commercial Code


Japan’s so-called old commercial law was established in 1890 and was drafted by Hermann Roslerel, a professor at University of Rostock in Germany. The new commercial law was established in 1897 and is the current commercial law in Japan. At present, the remaining three chapters of the Japanese commercial code are the first chapter of general provisions, the second chapter of business acts and the third chapter of maritime businessmen. Due to the enactment of the company law in 2005 and the insurance law in 2008, the content of the commercial code becomes hollowed out. The most typical field of legal issues is the basic concepts of the commercial code: businessman and business act. After the amendments of the commercial law and the company law in 2005, the company is interpreted as a businessman and the company’s business or business conduct is a business act. However, the same content of the general provisions of commercial law is set in the company law, so the following provisions under the second chapter of the commercial code shall be applicable to all businessmen including companies. The general provisions of the first chapter shall be applicable to individual businessmen and legal persons other than the company. In fact, the general provisions of the company law are basically the same as those of the commercial law, thus at least weakening the nature of the commercial general principles of the general provisions of the commercial law (generality).


On May 26, 2017, the Senate meeting passed a partial amendment to the credit law of civil law. The amendment to the credit law was made 120 years after the civil law was formulated, in order to cope with the changes of the times, such as online transaction and other consumer protection issues, resulting in a total of 257 articles amended and 85 new articles added, which is equivalent to amending a quarter of the total number of previous articles (1103). The amendment to the credit law has further aggravated the hollowing out of the commercial code and there is an urgent need for innovation, that is to say, the commercial code is facing the challenge of persistence, disintegration and abolition.


The first one is traditional optimism, believing that the civil law commercialization does not lead to the elimination of commercial law, enterprises constantly create new technologies and systems and enterprise law should also constantly formulate new legal principles and seek reasonable legislation of new activities. The disadvantage of this position is whether it is possible to predict the type of business or contract type that should be added to the business acts. The second one is innovative imperialism, believing that with commercial law as a special law of civil law, the fragmentation of the commercial code is unavoidable, so we need to innovate the methodology of codification. In order to expand the field of commercial law, it is necessary to incorporate into the large code the legal fields of different principles in the past, such as anti-monopoly law, competition law, enterprise bankruptcy law and so on that constitute the general rules of enterprise activities. This position was fulfilled by France’s amendment to the commercial law in 2000. The disadvantage of this position is that the commercial code forms the rules of enterprise activities, so bringing together the provisions that do not have the necessity of integration will result in the loss of the character and law of the code. The third one is active destructivism, believing that it is inevitable that the commercial code will be hollowed out in the end and it is necessary to maintain the commercial law as a systematic code. Therefore, it is not an inconceivable idea to advocate the disintegration. The basic policy for amending the credit law is to introduce the concepts of undertaker and economic undertaking. If this idea is understood as a technical provision of the general provisions of the civil law in order to absorb commercial acts, then this viewpoint can be considered to be one step closer to the goal. It is worth noting that the theory of active destruction does not only advocate the disintegration and abolition of commercial law provisions, but also assumes that the special provisions between businessmen in the general provisions of commercial acts should be set in the civil code and that every specification of business in commercial acts should be regarded as an independent business-related law. That is, to codify the maritime law independently should be premised on the existence of substantive commercial law provisions.


There are two ways to break up the commercial code. The first is to abolish the commercial law as a whole; the second is to dismantle the commercial acts and leave the question of where the substantive provisions should be transferred. For example, the provisions of business registration are transferred to the business registration law. If the legal relations of business private law are divided in the scope of application according to the concept of business, the concepts of businessman and business act in the current law do not play a significant role. In addition, considering the unification with the rules of international air transport and international maritime transport, the concepts of businessman and business act become an obstacle, because the scope of application of international maritime transport and the Montreal treaty is limited to businessmen and there exists the problem of whether the commercial code cannot directly absorb and integrate them.

II. THE IMPACT OF COMMERCIAL CODE DECONSTRUCTIONISM ON THE CIVIL CODE SYSTEM


While the modern commercial law of the 19th Century incorporated various economic activities of different nature into the scope of the application of commercial law, the principles of freedom of contract and freedom of forms, agency system and so on, which are regarded as commercial law principles and systems with commercial law characteristics, were transferred to the civil law. Therefore, the commercial law expands its scope of application in terms of denotation, but loses its civil law characteristics in terms of connotation. With the boundary ambiguity between civil law and commercial law, in order to clarify the relationship between civil law and commercial law, the commercial law theory of continental law system starts a debate on the object theory of commercial law. On the other hand, there are debates on the theories of the civil and commercial integration and the disintegration of commercial law concepts. Questioning the independence of commercial law, advocates for the disintegration of commercial law concepts are becoming more and more popular. So far, the division of civil and commercial law is still being debated.


A. General Provisions of the Civil Law: The Commercialization Trend of Civil Law Is Obvious


The General Provisions of the Civil Law of China, which came into effect on October 1, 2017, is a legislative model trying to integrate civil and commercial law. But it only has the sense of enclosure, and cannot fully reflect the commercial relations. The general provisions of the civil law have none or less provisions on the commercial law, which is the best provision; no design is the best overall and rational arrangement, which leaves sufficient opportunities and space for the next step of commercial legislation. Thus, it is expected that after the promulgation of the general provisions of the civil law, commercial legislation can also enter the legislative agenda of the legislature. But it is perfectly proportionate to its expectations.


Firstly, in terms of legislative technology, the General Provisions of the Civil Law simply copy the specific provisions of the lower law, without innovative work. The General Provisions of the Civil Law directly extracts the provisions of the departmental law and invades the territory of the lower law, which is an abuse of legal transplantation within the system. The abuse of legal photocopying technology may lead to the conflicts between the General Provisions of the Civil Law and some legal norms and it may also lead to the excessive adjustment of some legal persons in the General Provisions of the Civil Law and may even affect the innovation of the future legal person system. ‘Reduced enterprise law’ or ‘reduced company law’ may exist in the legal person chapter of the General Provisions of the Civil Law. Therefore, it is necessary to reflect on the legislative technique issues of the General Provisions of the Civil Law.


Secondly, the General Provisions of the Civil Law goes deep into specific legal departments and will hinder the innovation and development of departmental laws. For example, the provisions of the corporate governance structure, the rules of personality denial, related party transactions and company resolutions, company resolutions and their revocation provisions should be stipulated in the company law rather than in the general provisions of civil law. It is not of general normative and guiding significance to elevate departmental regulations to the status of general provisions. This is not only lost in the general provisions of civil law, but it is also worth thinking about how to understand commercial relations and how to locate the goals of today’s commercial law.


The commercial relation reflects the free competition relation and its business activities are mainly completed by the participation of private subjects in the general market. In this area, the law pursues freedom of business and deregulation. As a result, the boundary between civil and commercial acts is becoming more and more blurred. With the civil law recklessly intruding into commercial relations, the civil law has become commercialized. This situation is becoming more and more serious under the influence of the idea of civil and commercial integration, which shows a phenomenon of over-commercialization in civil law. This phenomenon may cause or has caused a problem that the use of civil law methods to solve commercial problems cannot meet the requirements of commercial relations. On the other hand, the use of commercial law to solve civil problems is over-commercialized. This is typically reflected in the field of contract law, especially under the circumstance that the General Provisions of the Civil Law of China has highly refined the legal person system and duplicated the content of company law, most of the traditional commercial fields are absorbed by civil law and contract law and common commercial relations are no longer exclusive to commercial law, thus forming the situation of co-governance of civil and commercial laws. This phenomenon has also occurred in Japan, where civil and commercial sectors are divided. The amendment of Japan’s Civil Law in 2017 affects the general provisions of commercial law and the company law to varying degrees, so that they need to be readjusted, and it also affects company practice and financial practice.


B. Subsections of the Civil Code: The Internationalization Trend of Civil Law Is More Obvious


Civil law is a domestic law. Can countries be more confident and proud of their own legal systems and legal cultures? Why is the internationalization trend of the civil code formed? How should we understand the internationalization trend of the civil code? Does the internationalization of the civil code affect the subsection of the civil code of China, or has the civil code already entered the international track?


From the perspective of comparative law, the recent formulation of the civil code tends to pursue international competitiveness. This topic started during the period of solicitation for amendments to Japan’s Civil Law. Japan has changed its civil law into European-American civil law, the key content of which is the non-negligence of non-performance of debts. It is a comparative law experiment that transforms the liability for negligence from the continental law system into Anglo-American law system. In this regard, the ministry of justice publicizes in the media the purpose of the civil law amendment: the civil law amendment is to examine the Asian strategy in the future. The relevant rules will be diffused from Japan and gradually become the international standard trading rules. Its greatest motivation is to require the counterpart of the transaction with Japanese enterprises to take Japanese law as the applicable law. It can be said that the amendment of Japan’s credit law is a strategy of looking at the Asian market and even the world competition. The most important point is that it refers to the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG shall take into account the international nature of this convention and the need to promote the uniformity of its application and to comply with integrity in international trade. Some scholars believe that the purpose of the convention is to integrate the rules of the two major legal systems. Despite the great differences between the case law and statute law, it is hoped that the two legal systems will eventually gain the approval of the contracting parties on the basis of mature legislative experience in the sales law and even contract law. That is the product of negotiation and compromise.


From the perspective of EU economic integration, a unified law naturally makes transnational trade fairs in the region more and more active. If the transaction goes smoothly, there will be no problem. If the transaction goes badly, it will result in problems such as non-performance of debts, termination of contracts, or the possibility of pursuing guarantee liabilities. However, different laws in different countries will result in a lot of dispute resolution costs. Therefore, a unified system of non-performance of debts, termination of contracts, defect warranty and so on will make the transaction smoother. To this end, the EU has made amendments centered on the credit law. However, all the provisions of the civil code have become complicated. At the beginning of 2000, the EU issued three directives. The German National Debt Law Modernization, which came into effect on January 1, 2002, reconstructed the debt relationship law. In order to adapt to the relevant EU directives, the relevant provisions of CISG have been adopted. It will make the German Civil Code simpler, clearer and more unified. The reform of the credit law enabled the German Civil Law to meet the requirement of the EU unified norms and integrated the German Civil Law into the entire EU legal system. At the same time, the reform of the credit law is aimed at the unification of the EU private law, which is an important step towards the realization of the EU legal integration. Professor Michelle Grimaldi believes that influenced by the internationalization trend of the EU Civil Code, the recent amendments to the credit law in Europe are degrading the quality of the law. Since the law exists for the sake of nationals, for European nationals, if the value of the EU merger is greater than the value of maintaining legal quality, the quality of the law is deteriorating.


From the perspective of continental law scholars, although the original law is concise and to the point, in order to compromise, case law viewpoints have also been added into the provisions to make the law complicated. Based on this context, the recent amendments introduced in Europe are longer and more complicated than the current Civil Code. In order to establish a unified legal system in the EU with the credit law as the transaction law, it is necessary to have some meaningful consultation and compromise with case law countries and code law countries. In this way, from the perspective of the jurists of case law countries, what originally need to be very fine norms have to accept a certain degree of simplicity in order to compromise with civil law countries. Japan enacted the Civil Code a century ago, which was based on Western laws. Similarly, it is understandable that countries that are currently developing the civil law are formulating domestic laws based on the CISG. However, legislators have great conflicts of opinions with the circles of legal practice and commercial law on imitating the CISG to amend the Civil Code. They believed that Japan is not a member of the EU, Japan is already a country rich experience in commercial transactions and a high degree of legal tradition and there is no domestic dissatisfaction with the current Civil Law, then why does it yearn for the EU uniform law? The amendment of the credit law has an impact on both commercial law and company law. After all, the two laws are in conflict with each other and it is still necessary to apply the provisions of the civil law. If the statutory commercial interest rate is deleted, commercial prescription shall be eliminated; fraudulent business transfers, guarantee liabilities and the type, quality and quantity of the purchased goods that are not in compliance with the provisions of the contract shall be applicable to the provisions of civil law. The company law adjustment includes: expression of intention, self-contract and mutual agency, elimination of prescription, statutory interest rate, fraudulent cancellation requests, guarantee, appointment and so on. In short, since the amendment of the credit law involves commercial acts and new commercial acts, the civil law was commercialized and expanded. However, the international competitiveness advocated by civil law circles and the purpose of Asian applicable law have limitations and cannot surpass or replace the international characteristics of commercial law. With company law codification as a turning point of enterprise law codification, even though the credit law regulates the new commercial behavior and has the trend of strict liability, as long as the commercial law has fault liability, the traditional principle of fault liability will not be shaken and the independence of commercial law will not be lost. Before the amendment of Japan’s Civil Law, academic papers had mentioned that the Chinese contract law draws on the advanced nature of the CISG and in fact, the provisions of the Chinese contract law are more inclined to Anglo-American legalization, because China’s planned economic background makes the civil law naturally intervene in the commodity economy and regulate the commodity economy, thus resulting in the repetitive clauses of the general provisions of the civil law and company law. However, the Chinese Contract Law in the continental law system draws on the Anglo-American contract law model. Commercial contracts are incorporated into the uniform contract law and fall into the category of civil law in the conceptual system. However, judging from the rules of the uniform contract law, in most cases, it reflects the requirements of commercial transactions and does not clearly distinguish between civil and commercial relations. Countries have joined the CISG for the purpose of responding to the globalization of the trading market and the treaty became part of the transaction law. However, if an enterprise signs an international transaction contract, the CISG can be excluded from the actual operation. Therefore, the formulation of the Civil Code is not necessarily aimed at internationalization. The Civil Law is a domestic law and can be more confident and proud of its own legal system and legal culture.


III. CONSTRUCTING CHINA’S COMMERCIAL LAW SYSTEM UNDER THE DECONSTRUCTIONISM OF COMMERCIAL CODE


For the compilation of the Civil Code, the first problem to be solved is the structural style to be adopted. How we should deal with the relationship between the Civil Law and Commercial Law and whether the Civil Code should adopt the mode of civil and commercial integration or the mode of civil and commercial separation, have become hot topics in the academic circle. Since the implementation of the General Provisions of Civil Law, the mainstream view is that China has established the basic legislative model of civil and commercial integration. It seems that the above arguments have been settled, but in fact, it is not. Some scholars believe that it is still too early to draw the conclusion, for based on the existing legislative phenomena and the supporting reasons put forward by most scholars, we cannot accurately judge that China has chosen the legislation of civil and commercial integration. Moreover, the promulgation of the General Provisions of the Civil Law has triggered more heated debate among scholars about specific provisions. The General Provisions of the Civil Law under the model of civil and commercial integration should have included all the content of commercial law that can be incorporated into the civil law. However, in fact, except for the profit-making legal person, the rest cannot reflect the commercial law factors, thus the General Provisions of Civil Law, in essence, has become the General Provisions of Civil Law under the mode of civil and commercial separation. In order to maintain the purity of Civil Law, the Civil Code needs to meet certain conditions when considering the connection between civil and commercial relations. However, the enacted General Provisions of the Civil Law neglects the standard, excessively involves the provisions of profitable subjects and ignores the commonality of civil and commercial acts. Therefore, at present, most scholars in the field of commercial law in China have gradually reached a consensus on the formulation of the General Principles of Commercial Law. They believe that judging from the problems in the current commercial legislation in China, the General Principles of Commercial Law can play a fundamental role in making up for the deficiencies.


A. General Principles of the Commercial Law or the Commercial Code


The mainstream academic circles in China insist that commercial law is a special law of civil law; some scholars advocate that commercial law is a special law of private law, and some advocate that commercial law is the enterprise law. Although the civil code is considered to be able to govern the entire private law system, it should not cover all the content of private law. Especially, in the face of the increasingly complex market transaction behaviors and methods, in many fields of business such as enterprise bankruptcy, the civil law is unable to use their commonality to solve the conflicts. It is precisely because of the independence of the ‘substantive commercial law’ that the civil code cannot include commercial law norms. On the basis of recognizing and respecting the Chinese legislation trend of civil and commercial integration, we should still adhere to the independence of commercial law. As far as China’s current legislative situation is concerned, the main commercial single laws such as the Securities Law, the Bill Law, the Bankruptcy Law and the Insurance Law have been implemented for many years, but there is still no system of codification of commercial law. The view of the civil law commercialization not only neglects the particularity of commercial law in legislation, thus making it difficult to coordinate between different legal norms, but it also leads to the mistakes in understanding and behavior guidance in practice. Therefore, on the one hand, commercial law needs more privileged norms beyond civil law norms so as to promote the activity and efficiency of commercial acts; on the other hand, commercial law needs more obligations and binding norms beyond civil law norms so as to prevent the abuse of commercial rights. Therefore, the formulation of China’s civil code must positively and effectively respond to the special requirements of commercial law. It also depends on the value orientation of giving priority to fairness in civil law or to efficiency in commercial law. Some scholars believe that although we do not deny the dilemma of the commercial code in the world, this cannot be the reason for us to abandon the codification. In the face of the dilemma that the compilation of the commercial code may duplicate the later historical situation of the French Commercial Code and the German Commercial Code because of the continuous development of social economy and there is a strong appeal for the construction of the commercial law system, a commercial law centered on the General Principles of Commercial Law can be established as an intermediate path at this stage. From a micro perspective, the general principles of commercial law should be based on standardized business. For company or enterprise responsibility, human rights and other issues can be reflected in it. The formulation of the General Principles of Commerce can enable many commercial single laws to be systematized, get rid of the long-standing disorder of commercial single laws and at the same time establish the complementary relationship between civil law and commercial law, thus promoting the development of socialist market economy.


As the basic law of market economy, commercial law plays an irreplaceable role in market economy. In view of the relationship between civil law and commercial law in China, there is still a long way to go for commercial legislation in China. Through the legislative evolution of the commercial code of various countries analyzed above, it can be seen that the formulation of the commercial code has many contingencies and is largely influenced by external factors. Taking South Korea as an example, due to the support and attention of the businessmen class and the enterprise community to the commercial law, the Commercial Code of South Korean is still developing steadily and unshakably in the face of the hollowing trend of commercial code in the world. Different countries have different academic, political and economic environments and different countries have different needs of the commercial code. Based on the social practice of socialism with Chinese characteristics, the commercial code can not only strengthen the legal system construction of market economy, but will also be an inevitable choice under the background of China gradually liberalizing market access and creating a free business environment.


B. Constructing a Commercial Law System with Enterprise Law as the Core


According to the common theory of civil law countries, in order to meet the requirements of the industry, it is necessary to aim at making profits. However, in recent years, under the influence of German enterprise law, the doctrine of expanding the interpretation of profitability requirements has received much support. That is to say, the normative object of commercial law, commerce in the legal sense, is united with the concept of enterprise as the center, and puts forward the modern direction of the object theory of commercial law. Japan and South Korea basically maintain the prototype of Carl Wielan’s theory of enterprise law, which is quite different from Germany and Austria. Compared with the Japanese Commercial Law, which adopts the enterprise law theory advocating the perspective of how to understand the commercial law system, the German and Austrian commercial law adopts the enterprise law theory whose mission is to standardize the practical problems of commercial law. Raisch and Karsten Schmidt, the most representative enterprise law theorists in Germany, explored expanding the scope of application of commercial law based on the concept of enterprise. Moreover, they put forward the legislative theory that the concepts of enterprise owner and enterprise should be used to replace the concepts of businessman and business in commercial law that originated from economic sense. Although the Macao region has not abandoned the commercial code to establish the enterprise code like Austria, it has carried out the commercial legislation practice with the enterprise as the core. Beneath its surface of the commercial code, it is the enterprise law in essence. The Macao legislative authorities directly adopted the concepts of commercial enterprise and commercial enterprise owner as the cornerstone of its Commercial Code and tried to establish a new set of rules for commercial activities. Through the three basic categories and internal logic of enterprise owner, enterprise and commercial acts, a unique normative object is formed to regulate the business act of the enterprise owner and its resulting social relations that need to be regulated specially in the commercial code, thus presenting a legislative model that differs from the traditional commercial law.


The Austrian enterprise law, which introduced the enterprise law theory in 2005, is of great significance in the history of modern commercial law and will become a typical legislative example. Austria followed German commercial law until 2006, but with the amendment of German commercial law in 1998, Austrian legislators took this opportunity to start promoting commercial law reform independently. The basic direction of commercial law reform is to replace the basic concepts of traditional commercial law, that is, businessman and business, with the concepts of enterprise owner and enterprise, thus realizing the modernization of commercial law. In 2005, the amended commercial law completed the fundamental reform of commercial law and the name of the law gradually evolved from the traditional commercial code to the modern enterprise code. Austrian legislators adopted the idea of German and Austrian enterprise law theorists, who developed commercial law into enterprise law. For the enterprization of Austrian commercial law, using Jhering’s words, it achieved the goal of raising it above the German law through the German law, so it is also of great significance in the history of commercial law.


To sum up, the enterprise is the subject and the adjustment object of commercial law, and should be in the core position of commercial law. Integrating China’s Commercial Law with subject enterprise as the core is more in line with the current legislative situation in China. Many years ago, scholars began to discover the trend that the concept of businessman is superior to that of enterprise. For example, Professor Zhao Xudong believes that the concept of businessman has traces of the old age. In the proposal draft of the General Principles of Commercial Law of the People’s Republic of China, the concepts of commercial subject, commercial organization and commercial individual are used alternately. Since business law was underdeveloped in the old times in China, businessmen were often misunderstood as natural persons engaged in commercial operations. And since China has traditionally tended to adopt the legislative style of civil and commercial integration, it is more accurate to express the owner of rights and obligations in commercial law as the concept of commercial subject. Some scholars also advocate that the concept of enterprise or operator should be used directly to replace the commercial subject. Influenced by the traditional commercial law system, China has not yet clearly replaced the concept of businessman with enterprise.


IV. CONCLUSION


Whether it is the General Principles of Commercial Law, the General Provisions of Commercial Law or the Commercial Code, their formulation will encounter enormous external pressures in China and it is impossible to carry out detailed systematic research. In view of the fact that the legislative choice of civil and commercial integration in China is almost certain and that the academic circles are in fact unable to independently undertake the task of compiling the commercial code, it is undoubtedly a wise choice to formulate the General Principles of Commercial Law based on the general provisions and supplement it with the Enterprise Code. This will not break the existing legislative tradition, but also fully adapt to the requirements of market economy development and effectively achieve the unified adjustment of commercial relations.


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