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Prof. Ye Lin and Prof. Wang Yi Spoke at the 449th Civil and Commercial Law Forum: The Relationship between Civil Law and Commercial Law in the Context of Codification of Civil Law

On April 21st, the forum was hosted in the Mingde Law Building. Professor of RUC School of Law, Vice President of China Commercial Law Society Professor Ye Lin, Professor of RUC, and Chinese Civil Law Research Association Secretary General Professor Wang Yi as main speakers gave theme reports. Li Yongjun( Professor of Civil and Commercial law School, China University of Political Science and Law), Professor Liu Kaixiang(Peking University School of Law),Professor Zhu Yan, Professor Xing Haibao, Professor Jia Linqing, Associate Professor Guo Rui attended the forum. Forum chaired by Dr. Wang Xiangchun.

On March 15, 2017, the 5th session of 12th National People,s Congress voted on the "General Principles of Civil Law of the People,s Republic of China"(hereinafter referred to as ¡°the GPCL¡±). With the adoption of the General Principles of Civil Law, codifications of the civil code were also in full swing. In this context, how to look at the relationship between civil law and commercial law? In this forum, the scholars started a lively discussion on the "transformation of traditional law to modern law", "the main system of modern commercial law", "Civil Code and in the view of commence¡±, ¡°the influence of the principle of inertia in the interpretation of law on civil and commercial relations".

Professor Lin first gave a keynote speech. He explained the relationship between civil law and commercial law in the context of the new era and from the following aspects: ¡°transformation of traditional law to modern law ¡°and "main systems of modern commercial law" and¡± civil law from the perspective of the business ".

First, the transformation from traditional commercial law to modern commercial law: Traditional commercial law has gone through three periods: Commercial law was fragmented in the period of jurwas gentium and was commercial and customary in the period of Middle Ages and was in the form of code and national in the period of Modern Times. Human society has undergone tremendous transformation. The industrial revolution and the information revolution have made the business model shift from individual to collective, and the state focused more attention on large, organized production activities. Thus, modern commercial law¡¯s focus gradually transformed from legal relationship to Functionalism and from transaction to business. Legal terminology, normalization means were also changed.

Second, the main construction of modern commercial law: Modern commercial law shall have general principles, business organization law, corporate finance law, business operation law, accounting law, commercial transaction and trade Law, special law of commerce, consumer protection law and competition law.

Third, civil code in the commercial field of vision: In macro terms, the GPCL Article 11 provided: Where there were any special provisions on civil relations in any other law, such special provisions shall apply. Civil Code regulated commercial law but would indirectly regulate commercial activities. In micro terms, there were a lot of differences between civil law and commercial law, including the differences of the normative matters, the differences of the normative goals, the differences of the normative reasoning and the differences of application of law.

Finally, Professor Ye pointed out that there was existing difficulties in identifying commercial norms, which may lead to recognition conflicts in judicial practice; the GPCL provided customs as one kind of sources of law, but the connotation and extension of customs were to be discussed. Commercial law has the characteristics of development and advancement which was different from civil law.

Subsequently, Professor Wang was the second keynote speaker. Professor Wang made a summary of Professor Ye,s speech, and then explained the three stages of understanding of civil law and commercial law. The first stage: Used one of the four hometown great men "Fan Li" as the starting point, forming perceptual knowledge of business groups from many literary works; the second stage: in the process of contract law, gradually realized differences between commercial contracts and civil contracts; the third stage: in the process of civil codification, knowing all legal rules were a product of their era, that exploring relationship between civil and commercial law should adhere to the principle of inertia in the theory of legal argumentation. The principle told us that in the absence of sufficient and proper reasons, researchers should adhere to the relevant legal tradition, advocating for changing and adjusting justification of responsibility of traditional people to provide sufficient proof.

Professor Wang stressed that there was no correct answer on choosing interpretations of civil law problems, so we should choose interpretations which were widely accepted. And through the example of the name of the Indians, he demonstrated the inertia principle of language habit.

As for value judgments in law, if it was discussed from the interpretation theory point of view, we should base on the consensus of value and the existing value judgment of civil law or special law of commercial when discussing the relationship between civil and commercial law. We should also study authorities¡¯ existing opinions. If it was discussed from the perspective of legislation, it was necessary to start from our own orientation of value.

Finally, Professor Wang pointed out that rational arguments couldn¡¯t achieve the purpose of persuading others. People couldn¡¯t be persuaded, but could be changed by changing their former views and preferences and by persuading and giving proper pressure.

During the discussion stage, Professor Li pointed out that the legal person system in the GPCL would have a significant impact on civil law and commercial law relation. First, the GPCL divided the legal person into profit and non-profit legal person which were a separation of civil and commercial law systems. Secondly, the GPCL stipulated that profit legal person should bear social responsibilities, which belonged to commercial law¡¯s scope of adjustment, not civil law¡¯s.

Professor Liu used the building as a metaphor to illustrate the characteristics of civil law and commercial law. Civil law was similar to a building, with a fixed building model, building materials, although the details of a slightly different, but generally easy to be identified, with a fixed model. The commercial law was more like a resort, farmhouse, composed of many independent functional buildings, was a loose organization. According to Professor Wang,s speech, Professor Liu concluded that the accumulated experience of civil and commercial law in the history was very important for the improvement and progress of the whole private law system. If forced to split these traditions would lead to a strong pain.

Professor Zhu Yan first responded to the problem of the modernization of commercial law, which was put forward by Professor Lin, and pointed out the similarities and differences between Chinese and foreign commercial law¡¯s developments. Secondly, in response to the problem of the law of inertia put forward by Professor Wang, and listed laws and regulations in civil and commercial law which reflected the law of inertia in great detail. In the end, he thought that it was an important prospect to improve the norm of commercial subjects.

Professor Jia believed that, first, there were two civil and commercial integration models: form and essence, the former model was more appropriate. Second, civil law assumed the role of guiding private law, it should comprehensively regulate the basic survival of human matters, and commercial law had its unique adjustment object so it should establish a relatively independent legal norms system. "Relative" meant commercial law could not be completely separated from civil law; "independent" meant commercial law should be based on their own characteristics and formed its system.

Professor Xing put forward thirteen questions in relation to civil and commercial law. First, what were the basic principles of commercial law? Second, in terms of equal protection, commercial law and civil law were common? Third, could the autonomy of will in civil law cover the business freedom in commercial law? Fourth, was efficiency unique value orientation of commercial law? Fifth, could the civil subject, the commercial registration and profit legal person be adjusted by civil law? Sixth, Consumer Protection Law belongs to civil law or commercial law? Seventh, how to distinguish long-term commercial transactions from occasional sales? Eighth, the settlement contract, bank contract, service contract could be explained by the civil law theory? Ninth, how to distinguish private lending from financial lending? Tenth, could civil law be made on the company,s decisions and other acts of commercial law? Eleventh, should legislators establish commercial property rights system? Twelfth, the trust belongs to civil law or commercial law? Thirteenth, could we learn from the civil rights system and establish the right system of commercial law?

Associate Professor Guo concluded, Prof. Ye explained the change of commercial law in the perspective of social transformation, Prof. Wang from the specific China¡¯s context discussed the development of merchant reform, and put forward to meet the needs of the times decided the development of commercial law. At the same time, Professor Guo also pointed out that the development of commercial law was under self-consciousness. The course of human modernization included not only the promotion of learning skills, but also the expansion of communication rationality. In the formulation of the GPCL, both its basic principles and rules of basic systems reflected the concern of commercial relations. The adoption of the GPCL expanded the communication rationality of civil law and commercial law.

In the end, Professor Ye responded to guest speakers¡¯ opinions. The forum was successfully closed at nine o¡¯clock.

Editor: Huang Yulu

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