民法与商法二元格局的演变与形成
施鸿鹏民法与商法二元格局的演变与形成
Formation of the Dichotomy Between Civil Law and Commercial Law
期刊名称：《法学研究》
期刊年份：
作者：施鸿鹏
单位：浙江大学光华法学院
中文关键词：民商法;二元格局;企业经营组织;独立性
英文关键词：civil and commercial law;dichotomy;enterprises;independence
中文摘要：
民法相对于商法的备位性问题应当重返两者在私法体系中的相对关系加以理解。近代早期之前，商法经历了体系性缺位、商人法形成和国家化三个阶段，而同时期的民法则稳定地以地方习惯法、罗马法与教会法为主要渊源。其中，罗马法阶段的私法状态奠定了后世民法与商法二元格局的历史基础。中世纪以来，商人法以其超越国家法的特质完全隔绝于民法之外，而在近代早期，民法的迟滞则使其与商法的二元格局更为固化。现代意义上民法与商法的二元格局始于19世纪。近代以来民法的进步使得商法的外在独立性有所削弱，就此欧洲私法领域形成了民商关系的“相对性理论”，并对19世纪晚期的商事立法产生重要影响，但该理论的有效性其实以时间、制度内容等方面的限制为前提。商法规范独立性的消亡将导致其内在独立性失去意义。就狭义商法而言，其作为特别法在本质上是以特定主体为对象加以建构的，企业经营组织作为主体性要素为狭义商法奠定了制度基础，商法规制目的及商业事实基础上的商法原则确保了规范层面外在独立性的存续。从目的论体系角度看，民法与商法负担着截然不同的建构目的，两者的二元格局在今日仍得到维持。这种二元格局的认识具有体系意义与实践意义。
英文摘要：
Compared with commercial law, civil law is in the subsidiary position. To understand this relationship between the two laws, it is necessary to go back to their correlation in the realm of private law. Before the early modern period, commercial law had gone through three stages of development:systematical in absentia, the formation of law merchant and state law, while civil law had been steadily consisted of customary law, Roman law and canon law. The legal conditions of Roman law laid the foundation of the dichotomy between civil and commercial laws in later times. Since the Middle Ages, the law of merchants has been beyond the realm of state law and consequently isolated from civil law. However, since the early modern times, civil law has not been able to keep up with commercial law, leading to the further solidification of the dichotomy between the two laws. The modern dichotomy of private law, or the dichotomy between civil law and commercial law, began in the 19th century. Since modern times, the progress of civil law has weakened the external independence of commercial law, leading to the prosperity of "relative theory" and significantly influencing the codifications of commercial law in the late 19th century. However, the validity of the "relative theory" presupposes temporal and institutional restrictions. If the independence of commercial legal norms disappears, the internal independence of commercial law will also lose its relevance. As to the commercial law in narrow sense, as a special law, it is built upon specified subjects. Enterprises, which are defined as the most important subject element, lay the foundation of legal institutions of commercial law. The regulating purpose of commercial law and the principles of commercial law, which are based on business reality, make the existence of the normative external independence of commercial law necessary. From the point of view of teleological legal system, civil and commercial laws are constructed in different ways, which vindicates today's dichotomy of private law. Such a dichotomy is both systematically and practically meaningful.
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