论我国民间借贷合同法律适用的民商区分

按照是否为自然人之间的借贷,《民间借贷司法解释》对利息约定不明的两种情形规定了不同的裁判规则。这种区分处理具有进步意义,但未能根据民商区分的理念作科学合理的区分,导致相关裁判规则存在标准混乱、规则缺失的问题。要确定民间借贷民商区分的判断标准,首先得解决民商区分的判断标准。我国应回避从内涵到外延都存在极大争议的商主体概念,借助“以营利为主要目的”的商行为概念及内涵和外延都确定的企业概念来界定商事法律关系,从而确定民商区分的法律适用难题。在确定了我国民商区分的判断标准后,民间借贷民商区分判断标准的厘定就迎刃而解了。据此,可确定民商区分视野下民间借贷纠纷裁判规则的完善方案。

On the Distinction between Civil and Commercial Law of Legal Application of China's Private Lending Contracts

According to whether it is person-to-person lending or not,Judicial Interpretation of Private Lending stipulates different judgment rules for two situations that the interest is not clearly prescribed.In spite of being progressive significance,this distinction fails to make a scientific and reasonable discrimination according to the concept of distinction between civil and commercial law,resulting in the chaos of standards and absence of rules of relevant adjudication rules.In order to solve the judgment criteria of distinction between civil and commercial law for private lending,the judgment criteria of distinction between civil and commercial law should be resolved firstly.We should avoid the concept of commercial subject of which connotation and denotation are disputed,and define the commercial legal relationship with the help of concept of commercial act of which main purpose is making profit and the concept of enterprise which has a certainty of connotation and denotation,so as to solve the problem of legal application of distinction between civil and commercial law.After defining the judgment criteria of distinction between civil and commercial law in China,the judgment criteria of distinction between civil and commercial law for private lending will be smoothly solved.Accordingly,the perfect scheme of judgment rules of private lending disputes in the perspective of the distinction between civil and commercial law will be determined.