At present, China's economy is in a period of rapid development. In this context, the importance of commercial law has become increasingly prominent, becoming an indispensable part of China's legal system and playing a very important role in the market economy. The following are papers related to commercial law, welcome to read.
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Driven by the reform and opening up, China's socialist market economic system is becoming more and more perfect, and the number of profit-making subjects is increasing. The business relationship between them is not only increasingly complex, but also expanding, and gradually developing into a mainstream social relationship [1]. In this context, it is necessary to restrict and regulate these relations from the legal point of view. This kind of law is called commercial law. In short, in social life, the role and status of commercial law are increasingly prominent.
1 Overview of Commercial Law
1. 1 concept
Commercial law refers to a series of laws and regulations formulated and implemented based on the adjustment of commercial relations.
1.2 attribute
Commercial law is the legal expression of market economy, and it is the legal adjustment of specific social relations based on profits in the market economy that constitutes the foundation of civil society. It has two characteristics, one is concreteness and the other is practicality. Commercial law consists of various market organization norms and various transaction norms. Therefore, based on the analysis of market economy adjustment, the existence of commercial law provides detailed and specific legal guidance for the application of market economy legal norms. If civil law is regarded as general private law, then commercial law belongs to special private law [2].
Development status of 1.3
Under the background of the increasingly mature market economy system, China's commercial legislation has also made remarkable progress. China has promulgated a series of separate commercial laws, such as maritime law, company law, securities law and contract law. From the successive implementation of these commercial laws, it can be seen that the commercial law system is becoming more and more perfect and has become an important part of China's legal system construction.
2 the necessity of determining the basic legal status of commercial law
The basic legal status of commercial law is the objective requirement of China's social reality in the new period, which is embodied in the following aspects: the internal objective requirement of the establishment and development of socialist market economy; Further deepening the reform of economic system and developing the modern enterprise system; The requirements of economic globalization.
3 the position of commercial law in China's legal system
3. 1 Viewing the Status of Commercial Law in China from the Importance of Commercial Law
Commercial activities have a long history, and barter in primitive society is the earliest commercial activity. The history of commercial law can be traced back to the Middle Ages, when merchants had developed into an independent class, and the establishment of the Chamber of Commerce promoted the formation and development of commercial customary law to a great extent. Since modern times, with the unprecedented development and prosperity of capitalist commodity economy, commercial customary law can not meet the actual needs, and a series of written laws have emerged, and countries have begun to compile commercial codes. From the beginning of establishing the development path of market economy, China began to understand, accept and pay attention to commercial law slowly, which shows that it started late, but the speed of perfection of commercial law in China and its position in our legal system are extraordinary [3].
Civil law and commercial law are closely related. The choice of civil and commercial separation or civil and commercial integration has far-reaching influence, which is related to whether commercial law is necessary to continue to exist, to the form of commercial law operation, and to the coordination between commercial law and civil law. It is worth mentioning that neither separation nor integration is allowed to adversely affect the existence and development of commercial law norms. The integration of civil and commercial affairs does not mean denying the significance and function of commercial law; The existence of commercial law does not mean to formulate a commercial code completely independent of the civil code [4]. Based on the global civil and commercial legislation, both the commercialization of civil law and the nationalization of commercial law are common phenomena. The commercialization of civil law means that under the background of the deep integration of civil relations and commercial relations, civil laws and regulations are constantly absorbing and integrating a series of laws, regulations and practices related to commerce, and further expanding their adjustment scope, thus playing a role in the commercial field; The commercialization of commercial law means that the commercial law used to adjust enterprises becomes more and more important in the background of increasingly frequent economic life, and gradually plays a leading role in the civil law system, thus causing the necessary adjustment and revision of civil law principles. With the formulation and implementation of a series of commercial laws and regulations, the civil law has been unable to completely cover the commercial law, which shows that the civil law and the commercial law have split in objective fact, and the importance of the commercial law is increasingly apparent.
3.2 From the relationship between adjacent legal departments of commercial law to see the legal status of commercial law
3.2. 1 Commercial Law and Civil Law
Experts and scholars who support the separation of civil and commercial affairs believe that the commercial law can develop into an independent legal department because it has its own exclusive adjustment object, that is, commercial relations, which also have its own distinctive characteristics: it occurs between commercial subjects with equal status; Set up for profit; Occurred in a continuing business. However, a deeper analysis of the characteristics of commercial relations will reveal that there is a certain fuzzy zone between it and "civil relations". First of all, for civil subjects, on the one hand, it includes ordinary subjects directly stipulated by law, on the other hand, it includes special subjects who have obtained subject qualification through special registration, that is, commercial subjects (such as cooperative enterprises); Secondly, both civil relations and commercial relations regard the equal relationship between the subjects as one of their basic characteristics, and make relevant adjustments based on the principle of equality and mutual benefit; Thirdly, the actual scope of civil activities involves not only profit-making activities (such as production, etc. ), including non-profit activities (such as consumption, etc.). ) [5], and a series of profit-making activities between equal subjects are an extremely important part of civil activities; Fourth, for civil activities, their profit-making activities may or may not be sustainable. Many of the similarities mentioned above largely depend on the future development direction of "commercialization of civil law", which makes their relationship more and more inclusive.
3.2.2 Commercial Law and Economic Law
Different experts and scholars have put forward different views on the relationship between commercial law and economic law. One view is that both of them take enterprises as the core object, so there is no essential difference; Another view is that the two are obviously different in concept and function, so they belong to two different laws. The second view can be summarized as follows: commercial law and economic law are separated from each other, but commercial law and civil law are combined into one; Commercial law and economic law are separated from each other, so are commercial law and civil law, that is, commercial law is an independent legal department.
Based on the analysis of their respective attributes, there are obvious differences between commercial law and economic law. Commercial law is a kind of private law, and its implementation concept lies in effectively safeguarding the private rights of subjects and actively adjusting the interests of equal subjects; Although economic law is brought into the category of public law in principle, some characteristics of private law can still be found from it. As far as economic law is concerned, its publicity is mainly manifested in taking the comprehensive adjustment of society as the basic standard and the overall interests as the basis, that is, taking the national economic management relationship as the target, making positive adjustments, thus creating and maintaining a good fair competition relationship in China; Economic law has certain characteristics of private law, which is also manifested in the organizational management cycle and cooperative relationship of the state will in the process of adjustment [6].
4 conclusion
To sum up, based on the analysis of the position of commercial law in China's legal system, whether from the overall development trend of international commercial law or the specific national conditions of domestic legislation, there are certain immature internal and external conditions for commercial law to become an independent legal department in China. Commercial law should be an important part of civil law and a special law in civil law; There are great differences between commercial law and economic law in essential attributes; Both commercial law and economic law are directly and closely related to enterprise law, but they cannot cover all the contents involved in enterprise law respectively. Therefore, commercial law and economic law can effectively adjust the relationship between enterprises based on different perspectives and sides.
References:
Liu Daoyuan. Re-discussion on the position of commercial law in the construction of market economy ―― Reflections on the position of commercial law after the formation of socialist legal system with Chinese characteristics [J]. On politics and law, 20 1 1, 04: 13-22.
[2] Wang Zuoquan. Legislative analysis of commercial law in the socialist legal system with Chinese characteristics ―― Also on the existence value of commercial law [J]. Qinghai Social Sciences, 20 1 1, 05: 77-8 1.
[3] Zhao and Zhao Yin. On the position and function of commercial law in the legal system of China's socialist market economy [J]. Modern law, 20 12, 04: 60-73.
[4] Yang Fang. On the Development of Civil and Commercial Law in China Legal System [J]. Legal system and society, 20 12, 36: 268+27 1.
[5] Sun Feng. The position of social law in the legal system and its social function [J]. Legal system and society, 2014,02:12-15.
[6] Wang Yanbin hanin. Constructing the legal harmonious system of marine insurance contract in China ―― From the perspective of Maritime Law and the new Insurance Law [J]. China Commercial Law Annual, 20 10/0,00: 433-441.
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