On Problems In China’s Legislation Of Commercial Subject And Relevant Improvements

Commercial subject and commercial act are cornerstones of commercial law. Commercial subject also serves as the carrier of commercial act, so it plays a more fundamental role, based on which various commercial rules and legal systems are developed. Therefore, some problems in legislation of commercial subject have become major issues in China’s commercial legislation. However, there still is considerable controversy about the concept, definition and many detailed rules of commercial subject. Learning form theories about legislation of commercial subject in Western Europe, the United States, Japan and other developed countries, this thesis combines practices of China’s legislation of commercial subject and carries out exploration of partial legal practices focusing on legal definition of commercial subject, legislation mode of commercial subject as well as defects and improvement methods in legal concepts and procedures of commercial subject.Adopting the theory of legislation of commercial subject as a starting point, this thesis analyzes legal practices of commercial subject in China for the purpose of providing a feasible mode for the theory of China’s legislation of commercial subject as well as good solutions to several prominent problems in legal practices of commercial subject in China. Learning form theories about legislation of commercial subject in Western Europe, the United States, Japan and other developed countries, this thesis combines practices of China’s legislation of commercial subject and carries out exploration of partial legal practices focusing on the following aspects by adopting method of comprehensive analysis, including legal definition of commercial subject, legislation mode of commercial subject, problems existing in China’s legislation of commercial subject and their solutions, problems of "businesses operated by official bodies", as well as problems existing in legal regulations of state-owned enterprises, three types of foreign-funded enterprises and itinerant traders and problems of high salaries of senior executives of state-owned enterprises. The main research findings include. China may adopt double-track system to confirm the identity of commercial subject. On the one hand, commercial subject can be confirmed on basis of its purpose of making profit, regularity, publicity, legal personality and other characteristics. On the other hand, commercial subject can also be confirmed on basis of its compliance with conditions of commercial subject by stating significant regular commercial practices in the way of provision. The two confirmation ways should be adopted simultaneously to complement each other. China can conduct commercial legislation relying on commercial subject under the combination of civil and commercial codes. To incorporate general provisions into Basic Law of civil and commercial cases while integrate specific commercial law into regulation of legislation of each commercial subject is a feasible and practical choice for commercial legislation in China, achieving conditional combination of civil and commercial codes and conditional independence of commercial law. Through analysis of problems in China’s legislation of commercial subject, a conclusion is drawn that China should relax government regulation, reduce administrative intervention, weaken legal responsibilities of commercial subject, guide it to smooth development, establish a sound commercial litigation procedures; clarify boundaries of commercial subject in the field of commercial law and the field of economic law, so as to improve China’s legal system of commercial subject. For problems of business operated by CPC and government organizations and business operated by CPC and government cadres, strict and sound laws and regulations should be established to regulate their business behaviors at first. Secondly, reasonable systems for property declaration, privacy publicity and transparent administration should be established. Subsequently, living and employment of children and relatives of CPC and government cadres should be arrange properly to balance the prohibition on their operation of business. Finally, sound supervision system and reporting system should be established. For three types of foreign-funded enterprises, China may integrate laws and regulations of foreign-related commercial subjects including foreign-funded enterprises into basic legislation of commercial subject. For state-owned enterprises, China should complete separation of governmental functions from enterprise management thoroughly and develop reasonable mechanism for benefit distribution. Enterprise solely funded by the State should be restructured as soon as possible and incorporated into Company Law for adjustment. On the one hand, China needs to open the market and introduce private enterprises in electricity, communications, finance and other highly-concentrated core economic fields. On the other hand, China should balance the relation between two types of capital to promote their harmonious development. For individual businesses and itinerant traders, itinerant traders can be incorporated into the regulation range of ordinance for individual businesses as the primary form of individual businesses, so as to protect the rights of consumers and businesses in a flexible way and provide a flexible and ample room for development of individual businesses under the premise of protecting the interests of the masses. For extremely high salary of senior executives of listed companies and state-owned enterprises, it can be adjusted to a reasonable level by clarifying identity of senior executives, increasing the transparency of payment, strengthening supervision, adjusting the subject determining salaries and improving the decree of limitation on salary. All in all, China’s legislation of commercial subject, legislation mode, legal concepts, legal procedures and many detailed rules need improvement in both theory and practice. This thesis analyzes the above problems of commercial subject comprehensively, in order to promote adjustment, improvement and progress of China’s legislation of commercial subject.