商事关系法律调整之研究——类型化路径与法体系分工

商事关系乃全部商法的基石概念。商法的研究不能回避商事关系的概念、构成及其法律调整机制。从主体类型化角度可将商事关系区分为四类:商主体与商主体之闻以营利为目的的商事关系;商主体与作为监管者的非商主体之间与营利相关的商事关系;商主体与作为消费者的非商主体之间基于商主体的营利目的而形成的商事关系以及非商主体与非商主体之间偶尔为之的营利性行为形成的商事关系。四此,商事关系可以界定为主体双方或一方基于营利性目的而形成的社会关系。营利性目的是衡量是否构成商事关系的本质,至于是否发生于平等主体之间,是否发生于持续营业之中,均非商事关系本质内涵。商事关系可以由商法调整但却不必都由商法调整,甚至可能根本不由法律调整。从主体类型化的角度理解商事关系的构成,不仅有助于商法理论知识的进化,也有助于我们撩开商法的面纱,现实地对待关于商法调整对象的困惑和商法法典化的神话。

A Study on the Regulation of Commercial Legal Relation

Commercial relationship is the conception of cornerstone in commercial law. To study commercial law, we cannot ignore the conception, structure and the legal regulation of commercial relationship. From the perspective of the type of the subject, it could be divided into four categories: (1) commercial relationship with the aim of making profit between commercial subjects; (2) commercial relationship relevant to making profit between commercial subject and non - commercial subject as supervisor; (3) commercial relationship based on aim of making profit of commercial subject between commercial subject and non - commercial subject as consumers; and (4) commercial relationship based on occasional making - profit acts between non - commercial subjects. Therefore, commercial relationship could be identified as the social relationship with the aim of making profit by two parties or one party. The existence of aim of making profit is the very nature of commercial relationship. Other elements, such as whether or not it is happened between the equal subjects, or whether or not it is happened in the continuous business operation, are not the nature of commercial relationship. Commercial relationship could be adjusted by commercial law, yet it is not necessary that all of the relationship should be adjusted by commercial law, sometimes it is even impossible to be adjusted by law. It is helpful for us to understand the structure of commercial relationship from the angel of subject type since it is not only a good way to comb the evolution process of theory of commercial law, but a useful means for us to lift the veil on commercial law and look on the puzzle of objects of commercial law and the myth of commercial codification realistically.