Commercial law

Author: Chief Editor: Qian Youtu
Publisher:
Publishing Date: 1999-12-01
Features: Preface: To meet the demand for legal talents in the construction of China's socialist modernization and the implementation of the strategy of governing the country according to law, and to comprehensively improve the quality of legal professionals, we have invited law professors and experts from courts and practical departments to compile and publish this series of textbooks. Guided by Deng Xiaoping Theory and based on the expert opinions of the former Ministry of Education's Teaching Guidance Committee for Law Majors in Higher Education, these textbooks have absorbed the latest achievements in domestic and international legal education, facing the 21st century's legal education. They correctly elaborate the basic theories and fundamental knowledge of this discipline, adhere to the principle of linking theory with practice, and strive to achieve a unity of scientificity, systematicity, and practicality. Commercial Law is one of the main course textbooks for law majors, edited by Professor Qian Youtu as the chief editor, with Professor Wang Weiguo and Professor Zhao Wanyi as deputy editors. After the initial draft was completed, Professor Qian Youtu was responsible for the overall compilation and finalization. The writing responsibilities for each chapter are as follows:
Qian Youtu: Chapter 1, Chapter 2, Section 2, Chapter 16, Chapter 18, Chapter 19
Wang Weiguo: Chapter 8, Chapter 9, Chapter 10, Chapter 11, Chapter 12
Zhao Wanyi: Chapter 4, Chapter 7
Gao Zaimin: Chapter 5, Chapter 6
Fu Dingsheng: Chapter 13, Chapter 14, Chapter 15
Peng Hong: Chapter 17, Chapter 20
Fan Qirong: Chapter 1, Section 2, Section 3, Section 4, Section 5, Chapter 2, Section 3, Chapter 3
Editor-in-Chief: Liu Zhang, Dai Shouyi
Legal Education Textbook Editorial Department of the Ministry of Justice
October 1999
Excerpt: Parties that have relationships and enjoy rights or bear obligations, as the subjects of commercial legal relationships, must enjoy rights and bear obligations in accordance with law or contract in their own names, independently. In case of violating obligations, they must bear legal liability independently. Those who cannot enjoy rights and bear obligations independently in commercial activities cannot become commercial subjects. The provisions of commercial law regarding commercial subjects are of great significance. Just as with other legal relationship subjects, one cannot become a commercial subject without confirmation by commercial law. First, becoming a commercial subject requires meeting statutory conditions. If there were no certain conditions, anyone could become a commercial subject, which would lead to market chaos. Second, commercial subject legislation distinguishes commercial subjects from other legal relationship subjects, thus avoiding the confusion caused by people arbitrarily entering the market to engage in commercial activities without knowing who can become commercial subjects.
(II) Regulatory Principles for Commercial Subjects
The legal determination of commercial subjects is a common practice in commercial laws of various countries. However, the principles for regulating commercial subjects differ across countries due to varying concepts of commercial law codification. The main principles are three:
(1) 1. Objective Principle, also known as the Substantive Principle. It refers to the focus of commercial law on the commercial nature of actions themselves and designating the actors as commercial subjects. According to this principle, the determination of commercial subjects should not be based on their "identity" but on whether they engage in commercial activities. This rule was first established by the Commercial Code of 1807, which explicitly states in Article 1: "A merchant is one who makes commerce their profession." The Old Commercial Code of Germany also adopted this principle. However, it was the Commercial Code of Spain in 1885 that adhered to and developed the objective principle for defining commercial subjects. In summary, the essence of the objective principle lies in emphasizing the foundational role of the concept of commercial acts, using the concept of commercial acts to define the scope of commercial subjects, and highlighting the dependence of commercial subject qualifications on commercial acts.
2. Subjective Principle, also known as the Formal Principle. Contrary to the objective principle, it refers to the focus of commercial law on the form of commercial acts when determining commercial subjects. The Commercial Code of 1900 (known as the New Commercial Code) of Germany is a representative example of this principle. According to this code, a merchant is one who engages in commercial operations. This principle indicates that commercial subjects are not determined based on the objective nature of commercial acts but rather emphasizes the central role of the concept of merchants in legal application, rather than defining commercial subjects based on the nature of commercial acts.
3. Moderate Principle. According to this principle, when defining commercial subjects, both the concept of merchants and the concept of commercial acts are used as foundations, taking into account both the objective nature of commercial acts and their form. The current Commercial Code of France and the Commercial Code of Japan are representative examples of this principle. The three principles for regulating commercial subjects each have their own background and characteristics. The objective principle focuses on the objective commercial nature of acts, providing a high-level generalization of the characteristics of commercial subjects. However, this generalization may inevitably lead to ambiguity. The subjective principle lists commercial acts and determines the scope of commercial subjects, making progress in overcoming ambiguity. But with the rapid development of the economy and society, the enumeration method cannot avoid the flaw of being incomplete. Thus, the moderate principle emerged, combining the strengths of both generalization and enumeration to better define the scope and characteristics of commercial subjects. It is precisely for this reason that most countries' commercial laws adopt the moderate principle to define commercial subjects.
(III) Categories of Commercial Subjects
Commercial subjects can be classified differently based on different criteria. These classifications reflect the special control requirements of different countries' commercial laws for different types of commercial subjects. Broadly speaking, they mainly include the following categories:
1. Classification based on the organizational and institutional characteristics of commercial subjects can be divided into commercial individuals, commercial legal persons, and commercial partnerships. A commercial individual, also known as a "commercial natural person," refers to an individual or natural person who, in accordance with statutory procedures, has obtained specific commercial capacity and independently engages in commercial activities, legally bearing commercial rights and obligations. Commercial individuals not only include individual merchants in the factual sense but also include "personal commercial names" (i.e., "commercial operations funded solely by an individual").