Institutional Expression Of Transaction Security Principle

The principle of transaction security is an important principle of modern commercial law and one of the basic theoretical problems of commercial law.However,what is the connotation of the principle of transaction security and the specific legal system in the commercial field to confirm its expression? This paper aims to reflect on and uncover the "principle of transaction security ".In addition to the introduction and conclusion,this paper includes the following contents:The first part: the definition of the connotation of transaction security principle.The principle of transaction security has multiple demands.Based on the perspective of public trust,this paper holds that the trading security principle has two connotations: first,the trading security principle requires information publicity to make traders make rational judgments;second,it gives public credibility to protect the trading subject’s reasonable trust based on appearance facts.The main purpose of the principle of transaction security is to protect the realization of the expected interests of bona fide trading subjects.At the same time,we should pay attention to the civil and commercial division of legal claims of transaction security principle,including: basic connotation,scope of application,rights protection and duty sharing,risk allocation and responsibility bearing distinction,so as to accurately understand and grasp its unique personality and character in the field of commercial law.The second part: the investigation of the system of publicity expressed by the transaction security principle system.In order to make the whole society to form the necessary transaction caution,the law through the establishment of publicity system to enable people to know the state of rights in advance to avoid the right conflict,for the security of the transaction to provide an important premise.Publicity in commercial law refers to the legal position that the actor of commercial activities must register and publicize all business facts or other important information related to the interests of the interested parties,so that the interested parties can timely understand the relevant information and real situation of the transaction.Publicity,as an obligation of the transaction actor,aims to "make people know".As a risk warning mechanism in advance,it aims to make the trading counterpart know the relevant information in advance to predict the risk and make a rational judgment.The system of publicity in commercial law is different from that in the field of civil law,that is,the system of publicity of real right.Its concrete expression in the field of commercial law includes :1.registration system;2.announcement system;3.enterprise information disclosure system;4.publicity of transaction behavior in the commercial trial,we should pay attention to the rational use and expression of the publicity system,take the issue of registration validity in the dispute of shareholder qualification confirmation and the dispute of equity change as an example,the commercial trial should adopt different identification standards according to different circumstances to maintain the security of transactions.The third part : explores the system of public trust expressed by the system of transaction security principle.This paper holds that in the field of commercial law,public trust refers to giving public publicity credibility,that is,to determine the effectiveness of the transaction with the appearance of facts,to ensure the reasonable trust of the subject of bona fide transactions.Public trust in the field of commercial law is the theory of appearance.Credibility of public trust by giving publicity to credibility,so that the counter-party "have the right to believe." As an ex-post risk allocation mechanism,it can make the bona fide transaction subject obtain the appearance right consistent with the real right to protect the transaction security.In the field of commercial law,the system of public trust is typical :1.Apparent agency and apparent representative system;2.Apparent partnership system;3.The semantics of bills.On the one hand,it is necessary to clarify its position and function,on the other hand,to grasp its applicable field and avoid generalization and abuse.Appearance ism is not the principle set by law,it mainly plays the role of judging the legal effect of important matters in the transaction,and its application should be based on specific legal rules.Only when there is a transaction to be protected and there is a need to maintain reasonable trust,there is room for the application of appearance ism.The fourth part: the reflection of "penetrating" thinking in civil and commercial trial.The Supreme People’s Court in the "National Court of Civil and Commercial Trial Conference minutes" put forward "penetrating" trial thinking,that is,to find out the true meaning of the parties,to explore the true legal relationship.The legal basis of "penetrating" trial thinking lies in the provision of article 146 of the General Civil Law on the expression of hypocrisy.It has a substantial influence on the principle of transaction security,because the "substance is more important than form" principle emphasizes the thinking of real fact discovery,which is in conflict with the thinking that Chinese-foreign doctrine pays attention to the effect of appearance recognition behavior in commercial law.Therefore,there should be rational restrictions." On the one hand,it is necessary to make clear the applicable boundary of "penetrating" trial thinking to respect the autonomy of private law.Its intention is to emphasize that in the case of administrative supervision,seeking the true meaning of the parties through "penetrating" trial does not mean that this is true in all civil and commercial trials.On the other hand,it is necessary to strengthen the application of public credibility in the commercial field to maintain the security of transactions.It is necessary to strengthen the value judgment of transaction security and avoid "excessive penetration ",so as to realize the unity of legal effect and social effect of commercial trial.