After the Opium War, modern China was forcibly dragged into the whirlpool of world capitalist economy by western powers. The extensive penetration of foreign capital into China market has brought great pressure to China's national economy, but at the same time, the new economic operation mode has also stimulated China's industry and commerce. The emergence of capitalist commodity economy and the change of economic structure in modern China require a certain commercial legal system to adapt to it. Under the internal and external pressure, the rulers of the Qing Dynasty also got inspiration from the fact that European and American powers established their country through industry and commerce, and vigorously promoted the policy of revitalizing industry and commerce. The practical measure is to order the establishment of the Ministry of Commerce, especially to take the lead in drafting the commercial law and promulgate it as soon as possible. Some governors and ministers, except the above-mentioned countries such as Liu Kunyi and Zhang Zhidong, called for the formulation of commercial laws. Li Hongzhang also pointed out: "All states in western Thailand have commercial laws aimed at protecting businessmen. The country is used for taxation, and the tax is commercial. It must be maintained as much as possible, thinking that it is the foundation of the country. " Although Li Hongzhang put forward that the foothold of formulating commercial law is to collect taxes from businessmen as the foundation of building a country, his requirements for imitating western laws to formulate commercial law are also very clear. (Note: See Zhu Ying: On the Economic Regulations of the Late Qing Dynasty, Historical Research No.5, 1993. Lu Haihuan, Minister of Commerce and Agreement and Minister of Industry, also pointed out: "It is the outline of business law and the key to recover extraterritorial jurisdiction to sincerely amend national laws and regulations. However, it is not necessary to refer to the general laws of various countries, and it is best to consider them, lest outsiders cannot abide by them. It is suggested that the Ministry of Foreign Affairs, the Ministry of Criminal Affairs and the Ministry of Commerce should study European and American laws and regulations and draft articles as soon as possible. " (Note: See Zou Lu, Minister of Commerce and Treaty and Minister of Industry, Please Order Laws on East-West Communication to Protect Sovereignty and Open Commercial Ports, published in Oriental Magazine, No.6, 2nd year (1905). The starting point of this requirement to formulate a commercial law as soon as possible is not to modernize the commercial law, but to recover the extraterritorial jurisdiction so that outsiders can abide by it, but it also contains the call for formulating a commercial law.
At the end of Qing Dynasty, the first new law modeled on western laws was the Commercial Law of Qing Dynasty. 1903, the Qing government ordered Zaizhen and Wu to draft a commercial law. It was in the year of 65438+ February, and it was named "Commercial Law of Qing Dynasty" after drafting. It is composed of General Rules for Merchants (Article 9) and Company Law (Article 13 1), which reflects the imitation of foreign commercial codes in style and content.
It is generally believed that modern commercial law originated from medieval commercial law. At the end of the Middle Ages, continental European countries made commercial codes one after another, among which 1673 Land Commercial Code and 168 1 Maritime Commercial Code of France had the greatest influence. /kloc-at the beginning of the 9th century, after the implementation of the Civil Code, France formulated a unified commercial code on the basis of 1807 inheriting and absorbing the above two laws and regulations. It is the origin of modern national commercial law. Since then, European and American countries have followed suit and formed different commercial legislative systems.
The first is the commercial law system represented by France. Represented by French Commercial Code 1807, it is divided into four parts, namely, general principles of commerce, maritime commerce, bankruptcy and commercial court. It is the first formal modern commercial code in civil law countries. Its main feature is to define the commercial scope with both businessmen and commercial behavior as the center, that is, to formulate the code based on eclecticism (subjectivism and objectivism), which denies the tradition that commercial law only applies to the merchant class since the Middle Ages. Many countries in continental Europe, such as Holland, Portugal, Spain and Belgium, have been influenced by France in the formulation of commercial codes. In addition, the commercial laws of many countries in West Asia, North Africa and Central and South America are also influenced by French commercial laws.
The other is the commercial law system represented by Germany. Represented by the German Commercial Code, 1897 was promulgated and 1900 was implemented. After the unification of the German Empire, this code was formulated on the basis of absorbing the previous German commercial laws and regulations and drawing lessons from the French commercial code. The code is divided into four parts: businessmen, commercial companies and dormant partnerships, commercial behavior and maritime law. There are no provisions of bankruptcy law, insurance law and negotiable instrument law in the Code, and these fields are regulated by separate laws and regulations. The main feature of "German Commercial Code" is that businessmen are the legislative basis (subjectivism), and businessmen are interpreted as people who manage commercial affairs, and the commercial scope is divided. This is the so-called business standard system. The European countries greatly influenced by the German commercial code are Austria, Hungary, Sweden, Norway, Denmark and other countries.
After the Meiji Restoration in Japan, the formulation of commercial code began soon. 1890 inviting foreign experts to help draft the old commercial law. This code is divided into three parts: general provisions, maritime law and bankruptcy law. After publication, it was severely criticized for being divorced from Japan's national conditions and traditional business habits. 1899 The Meiji Commercial Law formulated by Japanese experts was passed and replaced the old commercial law. Meiji commercial law is divided into five parts: general provisions, companies, commercial acts, bills and maritime commerce. It mainly imitates the style of German commercial code formulated by 1897. However, the biggest difference between it and the German commercial code is that the relevant content of the bill is stipulated in the commercial code and regarded as an independent part. The Japanese Commercial Code is objectivism in principle, but the stipulation in Article 265 that "all acts conducted by businessmen for business are called commercial acts" is actually mixed with the concept of subjectivism. Therefore, in this respect, the Japanese commercial code has adopted eclecticism similar to that of France.
Different from France, Germany, Japan and other countries, although the Anglo-American commercial law originated earlier, it did not embark on the road of compiling commercial code.
At the beginning of the 20th century, the Qing Government's Commercial Law of Qing Dynasty was regarded as a "model work". Although it has only two parts, namely "General Rules for Merchants" and "Company Law", its form of compiling commercial code by imitating the civil law system has been undoubtedly revealed. From the content point of view, the Qing commercial law is also modeled after foreign commercial codes, especially the provisions of the Japanese commercial code.
The General Rules for Merchants mainly stipulates the meaning, business ability, trade name and business account books of merchants. Article 1 stipulates that anyone who engages in commerce, trade, buying and selling goods is a businessman; Article 2 stipulates that men over the age of 16 can do business; Article 3 stipulates that women may engage in business activities in legal places, but they must report to the Ministry of Commerce; Article 4 stipulates that a wife can run an enterprise with her husband's permission and submit it to the Ministry of Commerce, but the husband cannot be responsible for her debts; Article 5 stipulates that all businessmen who do business or use their real names or set up another store number; Article 6 stipulates that businessmen, big or small, must set up a running account and register all items such as money, goods and daily necessities day by day; Article 7 stipulates that a businessman shall take inventory of goods, industrial equipment, etc. Once a year for this year, and keep records; Article 8 stipulates that all business account books and business letters shall be kept for 10 years, and if they are lost within 10 years, they shall be reported to the Ministry of Commerce; Article 9 stipulates that all businessmen, companies and shops must abide by the above provisions of Articles 6, 7 and 8.
The above provisions show that the Commercial Law of the Qing Dynasty, which was promulgated by King James, confirmed in legal form that commercial activities were for profit and the legitimate status of businessmen, which was actually the result of the spread of western law to the east, which contradicted the tradition of attaching importance to capital and justice over profit in China. Although the specific provisions of the General Rules for Merchants are not as detailed as the first part of the Japanese Commercial Code, some similarities can still be found. For example, regarding trade names, Article 16 of the Japanese Commercial Code stipulates: "A businessman may use his surname, first name or other names as a trade name"; With regard to commercial account books, Article 25 stipulates: "A businessman shall prepare account books, daily transactions and all other matters affecting property, and make them clear and tidy"; Article 28 stipulates: "All business account books and business-related correspondence of a businessman within 10 years shall be kept." The relevant contents of the General Rules for Merchants are similar to those of the Japanese Commercial Code.
The provisions of the Company Law are more detailed, specifically stipulating the company's organizational form, reporting method, management method, shareholders' rights and so on. It divides companies into four types: joint ventures, associated companies, joint-stock companies and joint-stock companies, which are also the types of companies usually stipulated in the commercial codes of modern civil law countries. Judging from the provisions of the Company Law, it mainly inherits foreign company legislation. Some scholars believe that in the content of article 13 1, "about three-fifths of the content is copied from Germany and Japan, and two-fifths is copied from Britain, which makes the company law in the late Qing Dynasty mix the legislative spirit of common law and continental law at the same time. Because it is mainly to translate and copy foreign laws and regulations, there are many vague provisions in the company law; At the same time, the company law rarely regulates and protects the traditional business practices in China, which makes it difficult for domestic businessmen to cooperate effectively. The economic legislation initiated by the Qing government for the first time was difficult to be successfully implanted into China society because of its strong portability. " (Note: See Qiu: Prohibition of Holding and Protecting Patents —— Analysis of Suzhou Gold Foil Lawsuit in Commercial Legislation in the Late Qing Dynasty, Chinese and Foreign Law, No.3, 2000. In the Draft Commercial Law of the Ministry of Commerce, it also clearly shows the process of drawing lessons from foreign commercial laws in drafting bills, that is, "first translate the commercial laws of various countries for reference". (Note: Oriental MagazineNo.. 1 (1904) 1. )
From the above analysis, we can see that the commercial law of the Qing Dynasty was divorced from China's inherent national conditions and commercial conditions, so that the first commercial law in China was criticized by all walks of life, and its actual effect was greatly reduced. (Note: Jiang, Enlightenment of Modern Commercial Legislation in China, Zhang, Editor-in-Chief, A Review of the Rule of Law in China in the Twentieth Century, Law Press, 1998. ) is reasonable to some extent. At the same time, some scholars believe that there is a close relationship between civil law and commercial law, and there is a sequence. At that time, China did not formulate civil law, but first formulated commercial law. "It is inevitable that there will be a reversal!" (Note: edited by Chen Wu Liu Zexi. : Commercial Law, published by Hiki Mobile Press in Tokyo, 1905, p. 9. However, from the perspective of transplanting foreign laws into civil and commercial legislation, it cannot be denied that the Qing Commercial Law was the first achievement of imitating the West and reforming traditional laws in the late Qing Dynasty.
bankruptcy law
1906, the Qing government promulgated the Bankruptcy Law to supplement the content of the Commercial Law of the Qing Dynasty. The law is divided into nine sections, including bankruptcy declaration, election of directors, creditors' meeting, liquidation, property disposal, intentional fraud, deferred liquidation, application for cancellation of cases and supplementary provisions, with a total of 69 articles. (Note: For the full text of the bankruptcy law, please refer to the seventh issue of the third year of Oriental Magazine (1906). Besides, it is said that this law was drafted by Shen Jiaben and revised by Wu. See Meiru @ ①: Characteristics and Theory of the Draft New Bankruptcy Law, Vol.6,No. 1 (1935). The main purpose of this law is to prohibit the fraud of bankrupts. In fact, it also refers to foreign laws and combines the actual results in China. This point is clearly stated in the Law Revision Minister of the Ministry of Commerce will convene a meeting to draft the bankruptcy law: "We hereby study the bankruptcy laws of eastern and western countries and the habits of businessmen in various chambers of commerce, and formulate a bankruptcy law as a consideration."
When the Qing government drafted the bankruptcy law, the bankruptcy laws of various countries were basically divided into three systems. First, the bankruptcy law is a part of the commercial code and only applies to the bankruptcy of businessmen. At that time, French commercial law and old Japanese commercial law both belonged to this system. This is the so-called businessman bankruptcy. Second, bankruptcy law, as a separate law, is not a part of commercial code, and is common in the general bankruptcy of businessmen and non-businessmen. The bankruptcy laws implemented in Germany, Britain and other countries all belong to this system. Thirdly, the bankruptcy law is also a separate law, which is not a part of the commercial code. It has the same system as the former, but has different provisions on merchant bankruptcy and non-merchant bankruptcy. Austria, Hungary and other countries belong to this system. The latter two are general bankruptcies.
Judging from the bankruptcy law of the Qing government, like the Commercial Law of the Qing Dynasty mentioned above, it was compiled by the Ministry of Commerce. Although its main purpose is to protect business, it is not a part of commercial law, but is promulgated as a separate law. Moreover, from the provisions of the whole chapter of the bankruptcy law, it is obvious that the important part is compiled for businessmen, but non-businessmen should be allowed to declare bankruptcy. (Note: Article 8 of the Bankruptcy Law stipulates: "Anyone who voluntarily goes bankrupt due to debts, although not a businessman, may also report to the local officials for handling according to this law." As you can see, this belongs to the second system mentioned above. In this system, German bankruptcy law is divided into three parts: substantive provisions, procedural provisions and penalties, while the bankruptcy law of the Qing government did not make such a distinction, which was more similar to the bankruptcy law implemented in Japan at that time. For this reason, in terms of style, "most people file cases according to the current Japanese laws." (Noe: [Japan] Masaji Kato: Nida's Bankruptcy Law of Clearing Heart, Wesley Wang, Law and Politics No.5 (1 907). )
From the content point of view, although officials of the Ministry of Commerce stressed that "according to this law, most people follow our country's habits and a few people adopt foreign regulations", they did not exclude foreign laws: "If the level of government and people in China is not uniform, national laws can only be close. Although the laws of various countries are exquisite, they cannot be comprehensive, leading to the disadvantages of being too high and too difficult. " In fact, the content of bankruptcy law is borrowed from foreign countries and combined with the actual situation in China. For example, regarding the types of bankruptcy, according to the provisions of the bankruptcy law, the bankrupt can be divided into loss bankruptcy and fraud, which is the same as the provisions of the Japanese bankruptcy law. As for bankrupt institutions, at that time, Japan and European countries stipulated that bankruptcy events were under the jurisdiction of the court, and it was customary for the court to declare bankruptcy. However, according to the bankruptcy law, bankruptcy should be reported to local officials and chambers of commerce, verified by local officials and chambers of commerce, and then declared bankrupt, and the chamber of commerce elected fair directors to handle all matters such as bankruptcy liquidation. This is a major feature of bankruptcy law, and it is also the result of the great influence of China Chamber of Commerce at that time. Therefore, this point has won the admiration of scholars: "It is extremely appropriate for those who put on file in the Qing Dynasty to attach importance to this point, not to imitate foreign rules and regulations, and to attach importance to practical application in addition to the disadvantages of the times." (Noe: [Japan] Masaji Kato: Nida's Bankruptcy Law of Clearing Heart, Wesley Wang, Law and Politics No.5 (1 907). However, after the implementation of the bankruptcy law, there are great differences of opinion between the government and the people on the provisions of Article 40 (Note: Article 40 of the bankruptcy law stipulates: "In addition to repaying several yuan, local government agencies should find out the situation, and if they are intentional, they should be severely punished according to the fraud law." For this article, the Ministry of Commerce thinks that this is not in line with the traditional practice of paying foreign money first and then sharing it with Chinese and foreign businessmen, but Qian Shang in Shanghai and Beijing praised this article, which caused controversy. Therefore, the Ministry of Commerce suspended the implementation of this article first, and then explicitly abolished the law in 1908. During the period of 1909, Yoshiyoshi Matsuoka, an investigator of the Law-repairing Museum, was drafting a draft bankruptcy law, which consisted of 360 articles and was divided into three parts, but it was only a draft, and the legislative procedure was not completed.
From the drafting of the Commercial Law of the Qing Empire to 1907, the Qing government also promulgated other emergency commercial laws and regulations, such as the Articles of Association for Trial Registration of Companies (*** 18) and the Articles of Association for Bank Registration (***8). These laws and regulations cover a wide range, and some of them have certain economic and administrative nature. These laws and regulations characterized by quick success and instant benefit, like the Commercial Law of the Qing Dynasty and the Bankruptcy Law, also have the characteristics of takenism to a certain extent.
"Zhi Tian Case" and "Revised Draft of Commercial Law"
Despite the promulgation of these laws and regulations, due to the incompleteness of their system and content and the changes of actual social conditions, the Qing government began to systematically compile commercial codes after announcing its preparation for constitutionalism.
1908, the Law Revision Museum invited Japanese expert Kotaro to draft the Commercial Code, and from 1909, the Draft Commercial Law of the Qing Dynasty (also known as the "Zhitian Case") was completed one after another. It is divided into five parts: general rules, commercial behavior, company law, negotiable instrument law and merchant shipping law, with a total of 65438 articles. This style is almost the same as the Meiji Commercial Law implemented in Japan at that time, which is divided into five parts: general rules, social (company), commercial behavior, hand shape (bill) and maritime business. From the content point of view, it mainly imitates the Meiji Commercial Law of Japan and the German Commercial Code 1900, but the bill rules also refer to The Hague Uniform Bill of Exchange.
Although the Draft Commercial Law of the Qing Dynasty was drafted, it was not implemented, so the "Zhitian case" was actually just a folk draft case. Many chambers of commerce expressed their dissatisfaction and protest against this draft, arguing that it copied too many foreign laws and did not conform to China's business habits. This draft was also resisted by the Ministry of Agriculture, Industry and Commerce.
After boycotting the Zhitian case, considering that the commercial law of the Qing Empire at that time was too simple to meet the needs of industrial and commercial development, the Ministry of Agriculture, Industry and Commerce put forward a revised commercial law on 19 10 to replace the commercial law of the Qing Empire as a transitional need. However, the draft was abandoned because the Qing government was overthrown before it was decided.
Although the commercial legislation in the late Qing Dynasty was modeled after western laws, it was not completely westernized. The reason that can't be ignored is the strong resistance of local chambers of commerce at that time. In view of the existence of powerful chambers of commerce, the Qing government paid more attention to investigating local business habits; In addition, in the commercial legislation promulgated, there are many legal provisions that give certain powers to the Chamber of Commerce. After the local chamber of commerce was established according to law, it actively participated in commercial activities, including commercial legislative activities. It is particularly worth mentioning that in 1907, before the Qing government hired Kotaro to draft the Commercial Code, the Ministry of Commerce asked the chambers of commerce to summarize the business habits of various places and send them to the Ministry of Commerce for reference when revising the law. In the same year, the Shanghai Chamber of Commerce invited chambers of commerce at home and abroad to gather in Shanghai to hold a "seminar on draft commercial law", at which an outline of the draft commercial law was adopted. The congress also asked local chambers of commerce to investigate local business habits after the meeting. Meng and others were responsible for contacting local chambers of commerce and drafting the draft commercial law. 1909, at the second "Seminar on Draft Commercial Law", the completed drafts of Company Law and General Principles of Commercial Law were discussed. These two drafts were later called commercial law investigation cases. When they were submitted to the government, it happened that the aforementioned Commercial Law of Qing Dynasty was no longer applicable, and the Draft Commercial Law of Xiulitang had not yet been promulgated, and the Ministry of Agriculture, Industry and Commerce was preparing to amend the company's articles of association. In this way, the draft was slightly revised and was proposed by the Ministry of Agriculture, Industry and Commerce as a revised commercial law, but it was not implemented in time. The process of the promulgation of this draft commercial law determines that although its content still follows the traces of foreign commercial law, it is more based on the commercial habits of various places than other drafts.