论商主体的存在价值及其法律规制

商主体是商法的核心内容,也是商法区别于民法的标志之一。现代商法与传统的商人法不同,它是建立在现代民法的具体人格的基础上的,因此,对商主体进行特别立法是必要的。传统大陆法国家商主体的确立标准有一定的局限性,因此,我国的商主体确立原则应为:营利性和经营组织体性相结合。

On the Value of the Independent Existence of Commercial Subjects and Legal Regulation

The commercial subject is the core element of commercial law, and it distincts commercial law from civil law. After examining the differences between commercial subject and civil subject, this article determines that the independent existence of commercial subject has its own value and there exists a need of particular legislation on commercial subject. Furthermore, this article examines the legislation on commercial subject in the traditional civil law countries,then points out that the traditional method of defining the commercial subject has been obsolete and cannot meets the requirements of the development of modern economy. The principles of defining commercial subject in China's commercial legislation should be the "profit-making" principle and the "operating organization"principle.