German Commercial Code

Author: (German) C.W. Kanaris
Publisher:
Publish Date: 2006-09-01
Features: A classic work of modern German jurisprudence. The book Commercial Law by Professor C.W. Kanaris, a renowned private law scholar in Germany, is recognized as one of the most valuable textbooks and academic works in the field of commercial law in Germany. It has been listed as an important teaching reference for commercial law courses by many German universities, including Frankfurt University where the translator studied, and holds a high academic status and recognition. It is also frequently cited in German legal writings and papers.
In Germany, the term "commercial law" (Handelsrecht) refers, unless otherwise specified, only to the General Provisions of Book I, Book III on Commercial Ledgers (which was previously part of the General Provisions), and Book IV on Commercial Transactions of the German Commercial Code, excluding commercial special laws such as commercial organizations, securities, bills of exchange, insurance, trusts, and maritime law, although some provisions (e.g., commercial partnerships and maritime law) also appear in the German Commercial Code. In this sense, the concept of "commercial law" in German academic and teaching contexts is similar to the "general theory of commercial law" commonly used in Chinese commercial law circles. This book follows this traditional definition, with its narrative largely following the order of the provisions in the German Commercial Code, covering topics such as the concept and identity of merchants, commercial registration, the transfer and inheritance of merchant enterprises, trade names, commercial ledgers, commercial agency, selling intermediaries and business intermediaries (known as commercial auxiliaries in Chinese commercial law), general issues of commercial transactions, the legal act system, and the special manifestations of property and debt systems in commercial transactions.
Notably, the author does not limit himself to the provisions of the German Commercial Code but introduces many important legal relationships and related legal issues that have emerged in recent years in commercial transactions, such as the transfer and inheritance of enterprises, commission agents, contract sellers, and franchise merchants. The author's introduction to many commercial law systems goes far beyond the provisions of the code, covering almost all private law issues related to the system, providing readers with a more thorough and comprehensive understanding, such as the system of trade name transfer, the system of trade name naming and management, silence in commercial law, the system of accounts, good faith acquisition in commercial law, and the retention of rights of merchants, all of which are clearly and comprehensively introduced and discussed in this book.
Regarding the fundamental issue of the relationship between civil and commercial law in commercial law research, Professor Kanaris's attitude is somewhat contradictory. On one hand, he unreservedly inherits the subjective (or subjectivist) definition of commercial law in the German private law tradition, viewing commercial law as "the special private law of merchants" (see footnote 1 in this section), and presents the relationship between civil and commercial law and the independence of commercial law in a manner largely consistent with traditional views (see footnote 10–21 in this section). On the other hand, the author argues in many discussions (especially in the introductory summary of the preface) that the independence of commercial law is not sufficient (see footnote 22 in this section) and that much of the content of the German Commercial Code does not truly belong to commercial law norms (see footnote 30–39 in this section). Given these textual expressions, which may cause confusion for Chinese readers, it is necessary to clarify here. From many arguments in this section, the author's so-called "true commercial law norms" refer to norms that apply only to merchants as defined in Articles 1–6 of the German Commercial Code. If their scope of application extends beyond these merchants to small business operators and agricultural and forestry workers, as well as freelancers, the author considers them no longer true commercial law norms (see footnote 30–39 in this section and relevant discussions in the main text). This understanding is closely related to the history of German commercial law. The exclusion of freelancers from the category of merchants has deep traditional roots, and the distinction between small business operators and merchants is a relic of the original German Commercial Code's distinction between ordinary merchants and small merchants. In fact, as long as all business operations are regarded as commercial activities and all entities engaged in business operations are regarded as commercial subjects, discarding the old commercial law view that small business operators and freelancers do not belong to commercial subjects, the "substantially non-commercial law provisions" listed by the author (e.g., provisions in the German Commercial Code on agents, brokers, freight forwarders, transport agents, and warehousing businesses, as well as provisions in Articles 348–350 of the same law) would still be considered commercial law provisions. Using these provisions to argue for the "decline of commercial law" proposed by the author in this section clearly applies only to traditional "merchant law" and lacks sufficient persuasiveness for modern commercial law with an expanded subject scope.
On the contrary, the suggestion by the author in the book to transform traditional commercial law into "external private law of enterprises" (see footnote 23–29 in this section) is strongly opposed by the author and could provide a future direction for the development of commercial law that distinguishes itself from general private law (civil law) but is not confined to the traditional merchant concept. Moreover, in discussing the scope of application of commercial law to persons (see footnote 40–42 in this section), the author is actually only one step away from this solution.
Additionally, the author of this book uses a significant amount of space in this section to argue that the distinction between commercial law and civil law is not insurmountable, with the main background being the traditional German separation of civil and commercial law in both form and content. As is well known, this tradition stems from the independence of medieval merchant law relative to feudal and ecclesiastical law. Therefore, the separation of the Commercial Code and the Civil Code in the 19th-century codification movement was largely due to historical and cultural traditions, and at the time, there was no in-depth theoretical exploration of its reasons and rationality. For a long time, the emphasis on the individuality and uniqueness of commercial law has led the German public (and even some legal professionals) to largely overlook its inherent inseparability from civil law as a special private law. During the translator's time in Germany, this was deeply felt: due to years of exposure, the German public was well aware of a legal department called "commercial law," and some elderly even mistakenly believed that Germany still had special commercial courts (in fact, this special court system, which still exists in France and other Western European countries, has been abandoned in Germany for over a century). However, they knew little about the inseparable connection between civil and commercial law. When they heard that the translator's doctoral dissertation involved commercial law, they would never have imagined that their field of expertise was actually closely related to civil law, such as housing leases and inheritance disputes. This phenomenon made the translator deeply understand the efforts of German legal scholars, including the author of this book, to make people (at least law students) truly grasp the truth that civil and commercial law cannot be completely separated from each other. It is necessary to emphasize in their works that as a special private law, commercial law is indeed an extension of general private law systems, and while its independence is undeniable, its conceptual system, system of rights and obligations, and research methods must not be completely separated from civil law.
However, when this book is introduced to Chinese readers, these texts may encounter inappropriate interpretations due to differences in legal and cultural backgrounds. The traditional interpretation of the relationship between civil and commercial law they face belongs to a completely different context. In China's five thousand years of history, there has been no independent position for merchant law, and the 20th-century codification movement ultimately chose the "civil and commercial unification" system, which involved drafting only the Civil Code and separate commercial laws, abandoning the Commercial Code model. Therefore, whether commercial law can be an independent legal department has long been debated in Chinese academia, and the general public has no concept of commercial law. Even those who acknowledge a place for commercial law often simultaneously recognize the rationality and advancement of the civil and commercial unification system. Claims such as the inseparable connection between commercial law and civil law, and the impossibility of commercial law existing independently of civil law, which require strong advocacy and calls to action in German academia, have been unshakable common views in China. On the other hand, views that commercial law independence is necessary and that legislation on the general provisions of commercial law still needs to be carried out have long been unexplained until recently, when they were affirmed by some Chinese civil and commercial law scholars.
Since the 1990s, China's commercial legislation has achieved great success. A series of commercial single laws have been enacted, playing a significant role in promoting the development of the market economy, safeguarding the interests of commercial entities, and ensuring the safety of commercial transactions. Meanwhile, commercial law teaching and research have also shown vigorous development. Each commercial single law has been extensively analyzed and studied in academic writings and papers. However, above these single commercial laws, we have always lacked a general regulatory norm in the field of commercial law that serves as a basic law, and the legislative body has long delayed such plans. In academia, whether in teaching or legal research, there is a significant degree of neglect of the general theory of commercial law (the scope studied in this book and other German works on commercial law) above the single commercial laws. Chinese commercial law scholars generally focus their efforts on teaching and researching single commercial laws, while the literature on the general theory of commercial law or the general provisions of commercial law is relatively weak compared to German works.
The above phenomena had their reasonableness and inevitability during the initial stages of China's commercial legislation and commercial system development. However, as the number, forms, and scale of commercial organizations have increased, as well as the rapid development of commercial transaction volume and scale, the shortcomings of lacking a general regulatory norm for commercial law have gradually become apparent. Some commercial law scholars have pointed out that due to the large number of legislative gaps between the Civil Code and commercial special laws, and because many provisions in the general provisions of commercial law are not suitable for being enacted as separate single laws, it is necessary to unify the legislation of the general provisions of commercial law. This law could be called the General Commercial Law (or Commercial General Law), which does not pursue the vast and cumbersome system of the Commercial Code, but holds the position of a general law in the field of commercial law compared to the special single commercial laws.
From the evolution of the German Commercial Code and the works of German scholars, including this book, we can also find arguments supporting the above suggestion. From the structure of this book, we can see that as a special private law, commercial law is entirely a special reflection of modern private law systems on the behavior of commercial entities and commercial transactions. The systems of commercial subject qualification and commercial registration are special manifestations of the general subject system (natural persons and legal persons) in general private law (see Book I, Chapter 1 and Chapter 2 of this book), the trade name system is a special personal right system (name and name rights, see Book I, Chapter 4), the commercial agency system (including agency rights) and the commercial auxiliary system (agents, brokers, dealers, franchise merchants) are transformations of the agency system in general private law in commercial law (see Book I, Chapter 6), and many provisions in commercial transactions are variations of the legal act system, property system, general debt system, and special debt system (see Book II). Only the commercial ledger system, due to its public law characteristics, cannot reflect the mapping of general private law systems, and it is included in the Commercial Code purely due to tradition and legislative convenience (see Book I, Chapter 5 and footnote 38 in this section). It can be seen that the above commercial law system has a high degree of systematicity and scientificity, and is in harmony with the general systems of private law, forming a complete private law system. We can completely organize the content of these items that Chinese scholars call the general theory of commercial law (general provisions of commercial law) into a unified legal system with a clear structure and self-consistent content.
From the development trajectory of the German Commercial Code, the commercial organization part (Book II) has undergone significant changes since the revision, with the provisions on joint-stock companies and limited liability companies having been detached as early as 1937. Its fifth book on maritime law is not included in general editions and is rarely addressed in university teaching and commercial law research works. As for bills of exchange, insurance, bankruptcy, and other matters, they have never been part of the German Commercial Code. However, its "General Provisions," "Commercial Ledgers," and "Commercial Transactions" sections—i.e., the parts covered in this book and other German works on commercial law, which are also referred to by Chinese scholars as the general theory of commercial law or general provisions of commercial law—have remained stable for many years and have been revised and supplemented through legislation (see footnote 49–51 in this section). In fact, as can be seen from the arguments and annotations in this book, there are German private law scholars who have reservations about the complete independence of commercial law from civil law (the author of this book is one of them), those who doubt whether the traditional Commercial Code should still be retained, and even those who suggest abandoning the traditional concepts of "merchants" and the Commercial Code and introducing the concept of "enterprises" to transform the Commercial Code into an "Enterprise Code" (e.g., to some extent, Professor Casten Schmidt and the translator's doctoral supervisor, Professor Helmut Kohl). However, in more famous works, there is absolutely no suggestion to completely abolish the Commercial Code and include its content in the Civil Code or to enact separate single laws such as the Commercial Registration Law and the Trade Name Law. This fact proves that China has no need to pursue the traditional large and comprehensive Commercial Code model, but as long as it is not bound by the traditional German concept of "merchants," it is entirely feasible to reinterpret the concept of "commercial subjects," unify the legislation of the general provisions of commercial law, and create a new framework for the "substantially non-commercial law provisions" (such as the provisions in the German Commercial Code on agents, brokers, freight forwarders, transport agents, and warehousing businesses, as well as provisions in Articles 348–350 of the same law).
One prominent feature of the book in terms of content is that it uses the provisions of the current German Commercial Code as the main body of discussion, introducing the state of positive law through legal dogmatic analysis and various methods of legal interpretation, while also offering many critical evaluations of the current law from the perspective of value judgments and proposing many structural suggestions for the "ought to be" law based on legal sociology and legal economics analysis. Therefore, this nearly 600,000-word Chinese translation can serve as a stepping stone for beginners to enter the field of commercial law and also spark the interest of experts and scholars in the field of commercial law for in-depth research and discussion, catering to the needs of different reader groups.
To make it easier for readers to judge the content suitable for them, the book uses different fonts in its layout. All parts printed in small font are introductions and discussions on multiple doctrines related to a particular issue, as well as issues that are relatively difficult for beginners in commercial law to understand. The Chinese translation retains this layout, allowing readers to selectively read.
The main text of the book, starting from the second section, has a distinct German traditional academic feature in terms of research methodology. The logical clarity and progressive analysis of many legal provisions, as well as the legal reasoning in a large number of cases, serve as a model for the study of private law. The refutation of opposing views by the author is appropriate and convincing, with concise and forceful language, occasionally revealing subtle irony and humor. The extensive sociological and economic analyses of the purpose and value of many legal provisions are insightful and persuasive. The book's annotations are rich, comprehensive, and highly practical and informative.
In fact, commercial law has undeniable departmental independence in content, and commercial law research in methodology is inseparably consistent and common with the study of general private law (and even other legal departments). I believe this is the aspect that the Chinese commercial law academic community can best learn from this book.
The translator is most concerned that after the publication of this translation, attention and citations will focus on the so-called relationship between civil and commercial law in this section, while ignoring the truly valuable content of commercial law and the research methodology of commercial law itself in the main text. If this is the case, the comparative value of this book will be greatly reduced!
The translation of this book began in the autumn of 2002 and coincided with the author's doctoral studies in Germany. The most tense period was the summer of 2004. At that time, near midnight, the sun had set almost to the horizon by the riverbanks of high-latitude Mainz, and it would rise again at 4 a.m. the next morning. For more than twenty nights, the translator worked on the of the rented apartment in Frankfurt to ensure the logical coherence of a section, reluctant to stop in the middle, witnessing the sun setting and rising. At midnight, with no one around, looking out the small window, the flickering lights of the Frankfurt TV tower shone into the room, and the songs of summer revelers came from afar. Amidst homesickness, the translator also deeply felt that this material joy did not belong to the scholars from distant Eastern lands like us. However, the great German poet Goethe, after reading 18th-century Chinese novels and poetry, also tossed and turned, full of reverie. During the arduous translation work of this book, the translator was also able to experience the solemn and exquisite beauty of logic and language. This spiritual wealth and joy can be shared by all humanity, regardless of cultural traditions and social systems.
In the translation, the translator strictly adhered to the norms of academic translation, translating word for word according to the original text without any modifications, deletions, or "polishing." Given the value of the annotations and appendices, they were all translated, although this increased the workload of the translation several times. Regarding the handling of the writing style, the translator tried to maintain consistency with the original, generally rigorous, with many European sentence structures, and occasionally vivid narration. The original book cited many legal provisions of the German Commercial Code and the German Civil Code, and the translator meticulously checked them and, with the author's consent, corrected several printing errors in the original version. It should be noted that when this book was published, the reform of German debt law had not been completed, so any references to Articles 434–597 of the German Civil Code and other related provisions in this book refer to the provisions before 2002.