民事合同与商事合同之辨

民事合同与商事合同在当事人认定、交易结构的繁简、"名""实"相副与否、"穿透"合同关系的允许与禁止、合同瑕疵的容忍抑或矫正、商业逻辑的地位及作用、坚守"正位"抑或"错位"处理"火候"把握等方面存在差异.认识、重视和研讨之,目的 和意义之一是,在法律适用时必须顾及商事合同的特殊性,不得僵硬地套用关于民事合同的规定.目的 ...

On the Differentiation between Civil Contract and Commercial Contract

There are differences between civil contracts and commercial contracts in the identification of the parties,the complexity of the transaction structure,whether the name and reality match,the permission and prohibition of penetrating the contractual relationship,the tolerance or correction of contract defects,the status and function of commercial logic,adhering to the "location" or "dislocation" to deal with it properly and so on.One of the significances of understanding,paying attention to and studying it is that it must take into account the particularity of commercial contracts in the application of law and shall not rigidly apply the civil contracts provisions.The second is to constantly analyze and screen various commercial transactions,and fix those in line with the development trend;if not in line with it,it shall be banned in time;for those valuable but exposed defects,we must eliminate the defects and consolidate the positive aspects.Thirdly,in the design of the legal system,we should distinguish the rules of civil contracts and commercial contracts as far as possible,so as to avoid at least reducing the phenomenon that "commercial contracts are not commercialized enough and civil contracts are mixed with commercial elements".In terms of the relationship between the economic foundation and the superstructure,the development of commercial law including the commercial contract system is ideal,but in terms of the self-consistency and strictness of the legal system,it is an out and out "destroyer".Very different from this,the civil law,including the civil contract system,is much more conservative,the innovation is slow,and lags behind the actual and even essential requirements of social life.Civil law only absorbs some mature rules and theories of commercial law into its own system when it thinks it is sure.Commercial law is like "experimental field",and civil law is like "hereditary land".