On The Principles Of Commercial Law

On the Principles of Commercial LawIn recent years, due to the demand of the theory of construction of socialist market economy, commercial research had a continuous boom, This is mainly reflected in the specific component of commercial law system. The scholars of company law, negotiable instruments law, insurance law, maritime law and bankruptcy law and other research results are very rich, but the research of the basic theory of whole commercial law is relatively inadequate, especially,the principles of commercial law. On methodology, principles of things is in fact the essence of things, also the value of thing. The existing theory has given a basic framework of commercial principles, and analyzes its connotation, but the commercial principles causes is lack of detailed explanation. This leads to three problems. Firstly, the independence of commercial law cannot be determined.The problem of independence of commercial law is the relationship between commercial law and economic law and the relationship between commercial law and civil law. If the commercial law is independent,it must be different of the essence of economic law or civil law In the promotion of value. Secondly, the system of commercial law is difficult to determine. The system of commercial law is consist of what specific system. This requires that the commercial principles get them together. Thirdly, the practice of commercial law lack of effective guidance. Commercial legislation,Judicial trial and development may lack of clear standards and directions. In this paper,we thoroughly study the theoretical source of the principles of commercial law.For the source of the principles of commercial law,we use Marx Philosophy's "from phenomenon to essence" method to analysis. Commercial Law is social sciences,so its phenomenon should be performed for the history of its development,and the essence is its embodiment of human value. The history of commercial law is divided into three stages. The first stage was from about 500 A.D. to 1500 A.D.,that is the medieval times. As a result of the joint action of merchant guild and merchant court, the basic concept and rules of modern western commercial law was formed. During this period, the main body of commercial law was the maritime system. This paper meticulously analyse the generation and development of the system of maritime mortgage, Maritime priority, Maritime lien,,ship collision, general average and so on. In addition, during this period, the rules to concentration of capital and negotiable instruments also have Initial development., this part also analyse the history of "commenda", "society" and negotiable instruments law.The second period of the development of commercial law is from sixteenth century to the beginning of nineteenth century.In this period, commercial law has made great progress, company system, negotiable instruments system, maritime system and insurance system all have a great development,but insurance system and company system has not been universally brought into the commercial law system, bankruptcy law was brought in,so in this part,we only analyse the history of bankruptcy law. The third period of development of commercial law was from the beginning of nineteenth Century to time of the first World War,.In this period, commercial law codification is highly prosperously, insurance law is generally incorporated into the commercial law system, and company limited liability has been formed, at this point,the system of commercial law is determined.Through making a painstaking investigation,we have found all commercial law have two common characteristics,one is that they are made by merchant,the second is that they are created by the merchant in the progress of their business practice.Theoretical exposition is in essence value analysis. According to research of human value in jurisprudence, human value mainly includes justice, order and efficiency. The relationship between commercial law and justice must be divided into the relationship between commercial law and freedom, equality, security. Because of that commercial law are created by the merchant in the progress of their business practice, the development of commercial law concentratedly express freedom;and in this progress,merchant are equal,so commercial law embodies equal equality,and take good faith and mutual benefit as connotation. Commercial law in the promotion of safety value is to promote trade and increase wealth. Through the analysis, the relationship between commercial law and order are reflected in two aspect.The first one iscommercial custom's order.The second is commercial law's order. The relationship between commercial law and efficiency is the focus of this paper. Commercial law is market transaction law,while efficiency is the reason for the existence of market.This paper take the negation to "rational man" hypothesis as entry point to prove that human irrationality lead to transaction cost or hinder transaction,so the means in commercial law is to realize them,and then promote efficiency. Then from this angle, commercial law reflect equal,free efficiency. On the basis,commercial law and the principles of commercial law link up organicly.The third part is application of the principles of commercial law.The primary application of the principles of commercial law is to determine that whether commercial law is independent,that is the relationship between commercial law and civil law and economic law.Firstly,we revert principles of economic law and civil law to value,and compare them with commercial law. The relationship between commercial law and civil law is relatively independent, commercial law develop in the foundation of civil law.Commercial law and economic law are different things, there mutual target is to promote efficiency, only the realization ways are different.In this paper,we also generally define the range of commercial law. Another application of the principles of commercial law is to provide guidelines for commercial legislation and commercial trial.The effect to commercial trial is to provide "mocking trial"method,and to commercial legislation is to provide a series of method for distinguishing commercial custom and analyse of legislative benefit and cost.Overall,the research of the principles of commercial law solve four problems.Firstly,we establish the connection of commercial law and its principle,and it make us have a deeper understanding of principle. Secondly,it help us review the independence of commercial law. Thirdly,it help us recognize commercial law's range. Fourthly,it provide us the methods of guiding commercial legislation and commercial trial.