后民法典时代商法独立性的理论证成及其在中国的实现

独立商法的出现既是社会经济发展到一定阶段的必然产物,同时也是各种主客观因素综合作用的结果。商法制度并非完全脱胎于民法,而是有其独立的发展路径。商法一经出现即对社会经济发展、社会结构变化、社会道德观念更新产生了深刻影响。从其历史演变来看,几乎所有文明国家都曾受到商法制度和商法精神的熏陶,对商法的重视程度也与一国社会经济的发展状况显现出极强的正相关关系。由于以伦理性、民族性、人文性为支撑的民法很难独自完成对市场经济关系的有效调整,因此中国民法典的制定不应以牺牲商法独立性为代价,而应充分尊重商法和民法不同的作用对象和作用要求,充分发挥各自的制度优势。我国商法独立的基本目标和要求是:以效益为导向,以自由为原则,以服务经济发展为目的,以保障交易安全为手段,以理性主义为基础,同时辅之以商事审判的独立化,与其他法律协同配合,共同完成对社会关系的有效调整。

The Theoretical Justification of the Independence of Commercial Law in the Post-Civil Code Era and Its Realization in China

The emergence of independent commercial law is not only an inevitable product of social and economic development to a certain stage,but also the result of the combined effects of various subjective and objective factors.It is not the case that the commercial law originated from the civil law,the commercial law develops on its own path.The emergence of commercial law has far-fetching impact on the social-economic development,the change of social structure,and moral values.History demonstrates that in almost all civilized countries the systems and the spirit of commercial laws are well developed.And there is a strong positive correlation between the attention paid to the commercial law and the socio-economic development of a country.The civil law,with its emphasis on ethics,nationality,and humanity,can hardly exercise an effective regulation of the economic relations in markets on its own.Accordingly,the establishment of the Civil Code in China should not compromise the independent status of the commercial law.It is to be noted that compared with the civil law,the functioning of commercial law is oriented to different objects and has different requirements.The accomplishment of the independence of the commercial law in China should be guided by effectiveness and based on the principle of freedom;it should aim to provide services to the economic development and secure economic transactions;the accomplishment of the independence of the commercial law should also be based on rationalism and the independence of commercial trials.The commercial law should work collaboratively with other laws to provide effective adjustment of social relations.