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essay代写-Basic principles of commercial law

2018-08-07 | 来源:51due教员组 | 类别:Essay代写范文

本篇essay代写- Basic principles of commercial law讨论了商法的基本原则。商法基本原则是效力贯穿商法始终的根本规则,是对作为商法调整对象的社会关系的本质和规律以及立法者在商事领域所行政策的集中反映,是构建商法统一规范体系的基础。但由于商法基础理论研究的不成熟,所以目前关于商法基本原则的观点都是各持己见。本篇essay代写51due代写平台整理,供大家从参考阅读。

commercial law,商法基本原则,essay代写,代写,paper代写

The basic principle of commercial law is the fundamental rule of validity throughout commercial law. However, there are many views on the basic principles of commercial law at present. Therefore, the basic theoretical research of China's commercial law needs to be further strengthened.

The basic principle of commercial law is the fundamental rule that the validity runs through the commercial law from beginning to end. It is the essence and rule of social relations as the object of the adjustment of commercial law and the concentrated reflection of the legislator's policies in the commercial field. For a long time, China's commercial law scholars have attached great importance to the study of the basic principles of commercial law, and a large number of related research results have emerged. However, throughout the present view on the basic principles of commercial law, it can be said that there are different opinions and different opinions. On the one hand, it indicates the vigorous development of China's commercial law research in recent years, on the other hand, it also reflects the immaturity of basic theoretical research of commercial law. This paper tries to reconstruct the basic principles of commercial law through the introduction of the category of "business" on the basis of reviewing the existing views, so as to contribute to the construction of the basic theories of commercial law in China.

Civil law is the general private law, and commercial law is the special private law. There are some differences between civil and commercial law in adjusting objects, adjusting methods, legal values and legislative techniques. Therefore, the basic principles of commercial law should be the unique principles of commercial law and should be the mark of the unique nature of commercial law. Therefore, when determining the basic principles of commercial law, we should not include the basic principles of civil law, although some basic principles of civil law, such as the principle of good faith, the principle of public order and good customs, as the representative of general private law, are also applicable to the norms of commercial law.

The specific rules of commercial law are the rules that only exist in a certain system or field of commercial law, such as publicity, appearance and strict liability. The specific rules of commercial law apply only to certain types or aspects of commercial relations and not to all types or all aspects of commercial relations. Therefore, the specific rules of the commercial law and the basic principles of the commercial law cannot be equated. We should neither elevate the specific rules of the commercial law artificially as the basic principles of the commercial law, nor artificially reduce the basic principles of the commercial law as the specific rules of the commercial law.

The basic principles of commercial law bear the fundamental value of China's social and commercial affairs and should be binding on all commercial laws and regulations from beginning to end. Some scholars argue that the implementation of the basic principles of commercial law should not be absolute all the time, and it cannot be excluded that certain basic principles of commercial law cannot be applied to certain specific commercial legal relations. Moreover, different norms of commercial law inevitably place different values on the value orientation. There is no denying that there is an exception rule of principle in any legal system. However, to oppose absolute implementation of validity does not mean to cancel this feature. The standardization of the commercial law adjusts commercial as main body personality created and the standardization of the commercial behavior on the implementation of the sum total of legal norms, the basic principle should be at least two most throughout the business main body law and commercial law, and should not be in the "applies to the basic principles of commercial subject specification and applicable to the basic principles of business conduct must exist a certain differences" as an excuse, in business main body of the specific principles and specific principles of commercial behavior instead of the basic principles of commercial law.

Due to the differences between the standards adopted by scholars and the angles of analysis, the concrete judgment of the basic principles of commercial law can be said to be more than 20 kinds. In a word, there are mainly the following representative views:

The second principle holds that there are two basic principles of commercial law, namely, the principle of guaranteeing the convenience of transactions and the principle of maintaining the security of transactions. This theory is obviously based on the doctrine of commercial behavior standard, and only focuses on the basic principles of determining commercial law for commercial transactions, while ignoring the fundamental provisions of commercial subject law.

The three principles hold that the basic principles of commercial law include three principles, namely, the principle of guaranteeing the convenience of transactions, the principle of maintaining transaction security, and the principle of legal and maintenance of business subjects. This theory makes up for the lack of fundamental provisions on commercial subject by increasing the principle of legal and maintenance of commercial subject, but it still fails to fully cover the basic norms of commercial law.

The four principles hold that the basic principles of commercial law include four items. One is to say that business subjects strictly follow the legal principle, maintain the principle of fair trading, guarantee the principle of convenient and rapid trading, and maintain the principle of trade security. This theory summarizes the basic principles of commercial law by defining the principles of commercial subject law and the principles of commercial behavior law respectively. The other is the principle of freedom from business, the principle of enterprise maintenance, the principle of convenience in business transactions, and the principle of security in business transactions. The added inclusion of the principle of commercial freedom is one of the highlights.

According to the five principles, there are five basic principles of commercial law. One is the principle of the legal principle of the commercial subject, the principle of promoting the free trade, the principle of maintaining the fair trade, the principle of facilitating trade and the principle of ensuring trade security. This theory is basically the same as the first one in the "four principles theory", which only further improves the principles of business behavior law by adding the "principle of promoting free trade".

According to the six principles, there are six basic principles of commercial law. One is the principle of profit maximization, management independence, simplicity and speed, safety, honesty and credit, and strict liability. Another way of saying it is to exercise the principle of right freely according to law, maintain the principle of trade security, the principle of autonomy of commercial subject's meaning, the principle of honesty and credit, the principle of facilitating trade, and the principle of fair trade. Both of these views incorporate the basic principles of civil law, such as the principle of good faith, into the basic principles of commercial law. In addition, they also elevate the specific principles of commercial law, such as strict liability, into the basic principles without distinction, which violates the definition standards of the above basic principles of commercial law.

Throughout the basic principles of China's commercial law existing views, it can be said that each has its own unique strengths and weaknesses. At present, in China's commercial law field, the basic principles of commercial law recognized by most scholars mainly include the legal principle of commercial subject, the principle of fair trading, the principle of convenient and rapid trading, and the principle of trade security. However, the legal principle of commercial subject only involves the part of commercial subject law, while the principles of fair trading, convenient and quick trading and the principles of trade security only involve the part of commercial behavior law. They are all part of the adjustment objects of commercial law, and they do not have the governance and effectiveness implementation. In this way, the commercial law is divided into two parts, the main body law and the behavior law, which leads to the isolation between the basic principles of the commercial law and does not constitute an organic and unified whole. It can be said that in China's basic principles of business law research current situation, the main law and behavior law "two skins" phenomenon is very obvious. How to solve the relationship between the basic principles? How can they form a unified and open system with each other? The problem is still not well solved.

Business is the core concept of the basic system of commercial law. Taking "business" as the core, the basic principles of commercial law can be defined as the following five:

The so-called business maintenance principle means that modern commercial law ensures the stable, coordinated and healthy development of business organizations through various legal means, maintains the legal personality of business subjects, and avoids the elimination of existing business organizations due to certain defects. Business entities are encouraged to pursue the realization of profit objectives through business activities to avoid the emergence of invalid consequences of business activities. The basic content of business maintenance principle is to support and encourage business. It is reputed in law that, in view of the fact that commercial business is the basis and power of a country's national economic development, commercial law must take supporting commercial business as the first task, and as a political country opposite to market society, it must also take supporting commercial business as its mission and take promoting the rule of law of commercial affairs as its duty. It can be seen that the principle of business maintenance not only has great legal and economic significance, but also has great social and political significance.

Business maintain principle is one of the important principles of modern commercial law around the world to carry out, throughout the commercial law system, as the operating principle of maintaining the performance of the main are: business main body to create defects will not affect the existing system, business subject legal personality shall not easily deny system, business main body legal personality from the impact of changes in members system, business main body system of legal personality of reforming themselves to maintain system, business, business property legal protection system and business behavior is beyond the scope of business system, etc.

The so-called principle of business freedom means that under the premise of no express prohibition by law, any civil subject can independently choose the scope of business objective and the expected interest target according to his own will, and implement the qualification and right of the corresponding action to enter and leave the business field and the trading market freely. The principle of business freedom is the concrete manifestation of the concept of private law autonomy in the field of commercial law. The principle of business freedom has important guiding significance in the construction of commercial rights, the determination of commercial law standard, the realization of benefit target value and the establishment of commercial system. Not only is it the original form of commercial rights, but in the system of commercial law, it can also derive various types of rights, such as commercial personality right, commercial membership right, commercial agency right, and even corresponding relief right. Therefore, it can be considered that the extension of business freedom includes not only the freedom of business conduct, but also the freedom of business organization.

On commercial law system, the operating principle of freedom is through the system building and specification applicable to reflect, its specific forms include: the business qualification of equality, freedom of investment and commercial freedom of association, freedom of choice of industry formats, opening of freedom, the freedom of fair competition and internal freedom of operation and management, etc.

The so-called legal principle of business refers to the standardized creation and implementation of the personality of business subjects and the standardized implementation of business behaviors. In order to maintain the stability and unity of the legal relations of business affairs, the commercial law expressly stipulates various compulsory norms to exclude the arbitrary creation and establishment of business subjects and the legislative measures for the occurrence of business violations. The principle of business law is the interference of the state in the commercial field and the restriction and supplement of the principle of business freedom. While confirming and protecting the business freedom, the commercial law should restrict it properly, which is necessary to guarantee the fairness and security of business affairs, and guarantee the sustainability of business benefits. It can be said that the establishment of the legal principle of business is only to avoid the harmful social consequences caused by the abuse of business freedom. The ultimate goal is still to promote the improvement and improvement of the private self-government system, and to give full play to the optimal effect of resource allocation in the market mechanism.

The system performance of business legal principle in the system of commercial law, as a whole, mainly includes the law of business subject and law of business behavior. The former includes legal business qualifications, legal business capacity, legal types of business subjects, legal contents of business subjects and statutory publicity of business subjects. The latter includes prohibition of competition, anti - monopoly, anti - unfair competition, anti - commercial fraud and so on.

The so-called business facilitation principle refers to the implementation of numerous legal means in the commercial law, striving to reduce the link in the process of the creation and implementation of business behaviors of business entities, accelerating the process of business operations, and promoting the realization of the commercial entities' profit objectives in an efficient manner. "Business is for profit," says Mr Cheung. Because of the agility of trading, people who are engaged in business can trade repeatedly, making use of their time and making profits. Although Mr. Zhang guojian focuses on commercial transactions and ignores the convenience requirements in the process of the creation of business entities, this theory also describes the importance of the principle of business convenience in commercial law. The principle of business convenience is the development trend of modern commercial law, and it is also an important principle that should be carried out in China's commercial law system.

In fact, the principle of business convenience can be divided into two aspects, namely, the convenience of the creation of business entities and the convenience of the implementation of business behaviors. The former is mainly reflected in the business registration process, such as the standardization of business registration, the formal examination system, the convenient system of market access and the digitization of business registration. The latter mainly includes transaction formalization, time limitation and transaction facilitation.

The so-called business security principle refers to the commercial law through a number of legal means to maintain the business entity's creative personality, guarantee the effectiveness of its trading behavior, and ensure that its personality and behavior are not easily declared invalid or revoked. Although business is convenient, we must pay attention to safety. If we only want convenience without safety, the profit objective of the business entity will not be realized. Socialized production urgently needs a safe business environment, which requires the establishment of various business safety systems in accordance with the commercial law from the maintenance of economic order. It can be seen that the two principles of business convenience and business security should coexist harmoniously and complement each other in the commercial law, so as to seek the realization of the legitimate interests of business subjects and the stability of social and economic order.

The system performance of the business safety principle in the commercial law system is also divided into two parts, namely, the security created by the business subject and the security of the business conduct. The former mainly includes the compulsory registration system of the business subject, the minimum registered capital system of the company, the expression and formulation system of the business subject personality, etc. The latter includes transaction information disclosure system, important system, appearance system and non-factor system.

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