Section 1 Concept of Commercial Law

1 adjustment object of commercial law

Commercial law refers to the general name of legal norms that regulate commercial relations.

2 business relations

Refers to the social relations formed through market operation activities in a certain society, mainly including commercial organization relations and commercial transaction relations.

The combination of organization law and behavior law is commercial law.

The main signs of business relations are businessmen and business behavior.

A businessman is a person who carries out business activities in his own name and takes it as his regular business. In China, businessmen mainly include

(1) Individual industrial and commercial households and sole proprietorship enterprises;

(2) Partnership enterprises;

(3) Companies and other forms of enterprise legal persons;

(4) Joint ventures;

(5) Enterprises with foreign investment.

Commercial behavior is a profit-making behavior that applies commercial legal norms. In essence, business behavior is a normalized, specialized and standardized behavior in the market.

4 formal commercial law and substantive commercial law

There is no formal commercial law in China, but there are substantive laws, which are mainly manifested in a large number of separate commercial laws, company laws, securities laws, negotiable instruments laws and insurance laws.

Commercial law is closely related to civil law and economic law, but there are also some differences.

In short, civil law is a general law and commercial law is a special law. Civil law has the significance of leading and guiding commercial law, and commercial law has the function of supplementing, changing and restricting civil law. The main difference between commercial law and economic law is that commercial law takes the autonomy of the parties as the leading principle, while economic law emphasizes the intervention of national will and government functions and takes national policy as the leading factor.

Section II Historical Evolution of Commercial Law

Although the commercial law originated from the commercial laws and regulations of ancient Rome, the modern commercial law we understand today started in the autonomous cities along the Mediterranean coast of Europe in the middle ages and was formally established in the French Commercial Code 1807. China's ancient commercial law was extremely underdeveloped. Since the beginning of the 20th century, the commercial legislation in the past hundred years has mainly introduced western commercial laws, mainly the commercial laws of the continental law system. After the reform and opening up in New China, many commercial legislations are also based on those in Britain and America.

Section 3 General Principles of Commercial Law

General principles of commercial law are the objective requirement and legal reflection of market economy. Modern commercial law has four basic principles.

1. Strengthen enterprise organization

1 Promote quality of enterprise. Mainly rely on two sets of legal mechanisms, one is the legal mechanism of enterprise financing, to protect the property foundation of enterprises,

For example, the three principles of limited liability and capital in company law. The second is the legal mechanism to realize the survival of the fittest and the optimal combination of assets, such as bankruptcy, reorganization and merger system.

2. Improve the enterprise structure. Including improving the internal governance structure of enterprises (mainly distributing the rights of investors and operators reasonably) and coordinating the internal relations of enterprises (mainly protecting the interests of employees and strengthening the democratic management of employees).

Improving economic benefits means reducing transaction costs and increasing operating income. This principle of commercial law is mainly embodied in three aspects: protecting property rights, maintaining credit and facilitating transactions.

1 commercial law protects property rights, which is mainly reflected in defining property rights (clarifying property rights) and maintaining its authority; Including timely and adequate relief when property rights are violated.

The core of credit is trust. Trust means that transactions can be carried out at low cost, thus improving economic efficiency. Bankruptcy law plays an active role in maintaining credit.

Convenient transactions can save time and cost. To this end, commercial law provides a lot of institutional support. Such as the technicalization (formalization) of commercial transactions, the widespread use of implied behavior, the liberalization of the form of proof, the shortening of prescription, and the facilitation of commerce.

3. Maintain the fairness of the transaction

Is to maintain the normal order of the market, mainly reflected in the principle of equality and the principle of good faith. For example, the information disclosure system, the principle of one share and one right, and the prohibition of insider trading all embody the principle of equality. The directors' duty of loyalty to the company and the insured's duty of telling the truth embody the principle of good faith.

4. The system for ensuring transaction security provided by commercial law mainly includes:

1, mandatory;

2. The principle of openness;

3. The law of appearance (objectivism);

4. Strict responsibility;

5. Protect bona fide buyers (third parties).