Application of the law business behavior - for a rational society, the transaction is expected to simplify the declaration and rules

Because they can not explain all phenomena, all the problems, the lack of human psychology is always a sense of security in the life around us, lonely, loneliness, fear always lurking. Due to lack of psychological sense of security, there is always more or less superstitious man authority of the trend - whether in political, social, and economic life, social life, as well as academic life, has been true no matter how many anti-authoritative voice in mainstream society, "authority" is still not digested, and - in a sense , but also constitutes a risk society ballast, constitute a mortal beings and guide the direction of action.

Research in the field of Law, this "authority superstition" performance in "to legislate to judge theoretical insights of the pros and cons" - in Civil Law countries, there is always more or less "to the referee or legislation to guide academic Line" problems. Therefore, it seems logical that - in China, due to the lack of "profit" or "business behavior" unified regulation, commercial Law Research is very susceptible to difficulties, but do not act the business application of the Law made in the judicial practice , such as traders, business behavior, commercial relations, commercial Law, and many other theoretical problems exist in significant controversy. "No one can say clearly Civil relations and commercial relations between the difference" - seems to have become "against the commercial behavior independent of treatment, the application of the law, "the classic question.

As the definition of business behavior problems, conduct business application of the law becomes extremely complex problem can be said, whether in a court referee, or in arbitration practice, the law applies to all business behavior is not taken seriously, or at most just a few "flashes." face in the global financial crisis and other occasional disaster, or even "business conduct independent application of the law," there is the possibility of further contraction, therefore, carefully study the behavior of the business application of the law, there is great significance.

Today, Chinese business behavior of the application of the law there is a big problem is that application of the law on business behavior is too complex and precarious, the uncertainty of the rules, to a large extent undermined the rational expectations of social transactions, therefore, The transaction is expected to maintain a rational society, to maintain rules and transaction certainty, to pursue the rules / laws to simplify, China should adjust our behavior today's business law applicable to the position of the key macro-end, I would like to discuss three issues: the First, how to understand business behavior? Second, the commercial application of the law's goal is to conduct what? Third, how to achieve business conduct specialized application of the law?

First, the uniform business behavior and adjustment

What is a commercial act? Theory, there is still great differences, but the definition of business behavior, the solution to their application of the law's premise. In practice, the Research, we found that some judges began to notice a for-profit business behavior and the difference between ordinary Civil actions, beginning with the commercial vision of evaluation in the hands of the case, in many ways to explain the main business and general Civil, commercial and general Civil actions behavior, and general civil and commercial relations between the difference, but these explanations are always there, "groping in the dark" defect.

Theoretical analysis of business behavior is always difficult to explain easily into confusion, but the theory is the main function is to "simplify thinking," not so simple problem complicated. In short, business behavior is profit-making activities, but Not all commercial profit-making activities by the adjustment of the legal system, the relationship between the division of labor, business and commercial relationship between behavior and adjustment not only by commercial law, but also by other legal regulation, "focus on commercial law," only to adjust to "business form" performance out of the profit-making activities - conduct ongoing business, so "commercial law should be adjusted to" commercial behavior, mainly those that continue to have "a business" profit-making activities. This business behavior, may be a businessman carried out, may also form a non-merchant to merchant for the example, without legal registration, but the fact that the implementation of the company form of business conduct for non-traders not to profit-making activities implemented business forms, although its essence as a commercial act, but the law should insist tolerant attitude, and in commercial law to business conduct is not treated, not to special controls in order to promote the flow of private capital and goods.

In a market-oriented, globalized society, based on business competitiveness and national competitiveness considerations, a country's commercial law (whether the Commercial Code, the Commercial Code or other specifications), must pay attention to "business of business conduct," the unity of adjustment. not concerned about the behavior of the uniform commercial operators to adjust the country, it is difficult to form a fair and effective competition in order. If a country (region has been relatively well-developed commercial transactions, arrangements in the law system, the more necessary for the conduct of business expertise (especially considering Today Chinese society, the "economic construction" under the guidance of the basic line of the ruling pArty, can be described as "Business is everywhere" - commercial throughout all areas of society, is increasingly becoming the focus of social network, so in the law system of the arrangement, the urgent need to separate commercial deal - the urgency of such needs, even in China in any previous era.

Although China is traditionally Minshangheyi countries, but can not be unified for business conduct regulation is not the reason. Minshangheyi, still considered in the framework of a unified civil code, how to organize a unified business behavior to adjust The problem, therefore, whether or create a relatively independent commercial law code, the Chinese have a need to conduct some form of uniform regulation of business from the perspective of feasibility, I agree with China to develop a special "for-profit law and uniform regulation of business conduct France>> and, of course, can also be placed in the Civil Code, as an independent chapter on stability characteristics of the statute, the legislature technically, to do a unified definition of business conduct, has served to define the norms of commercial law areas, reduce judicial practice dispute.

Second, the legal business conduct applicable goals:

Maintenance transaction certainty and rational expectations

The most important commercial transactions "certainty." Transaction certainty, is whether the completion of a rational business judgments, the key to achieve profit targets in the areas of business conduct regulation, statute of important functions is to help traders achieve trading in the act of , thus achieving the rational expectations business for example, under an enactment or with the help of legal professionals, merchants and large or very clearly determine the effect of a legal act of the law, and thus choose the form of trade has been beneficial to achieve profit expectations. Therefore, the rules in the rule of law throughout society, businessmen are most in need "legal assessment" of transparency, if the rules are vague, commercial transactions will greatly increase the risk of man-made. Can be seen, the law applicable to the core business behavior, is to safeguard the certainty and business transactions of rational expectations and some markets in transition countries, the biggest problem is that the rules of the opaque business transaction costs so greatly increased.

China is also facing the same problem today, commercial application of the law there is a big act ambiguity, because the legislative and judicial uncertainty, traders often difficult to accurately determine the implementation of its trade practices law effect, which can not be in accordance with established rules while avoiding disadvantages, to achieve sustained profitability. Thus, in China, engaged in commercial transactions, legal risk. To take one example. For example, <<Contract Law>> Article 52 provides that "violation of laws and administrative regulations of mandatory requirements," the contract null and void, but what is "legal and administrative regulations of mandatory requirements," there is considerable ambiguity in interpretation . To encourage trade, limited contract declared invalid, the Supreme Court in the <<law of contract interpretation (B>> Article 14, attempting to void the contract may lead to a narrower interpretation of the mandatory provisions of the "effect of the mandatory," that only contract violation "effect of the mandatory" would be invalid, and breaches of the mandatory provisions of the contract does not therefore null and void due to the "effectiveness of the mandatory" and "management of the mandatory" blurred the boundaries between, this interpretation led to practical large number of mandatory provisions to be interpreted as "management of the mandatory", and in fact are not pArties to the contract's attention and compliance. To avoid this mandatory digestion of the phenomenon, the Supreme Court in the <<hearing on the current situation civil and commercial contract disputes a number of issues guidance>> (Fa Fa (2009) 40, the relaxation on the "breaches of the mandatory provisions do not affect the validity of the contract of practice" that "properly understood, identification and application of contract law Article 52 (five in the 'violation of laws and administrative regulations of mandatory requirements', related to the effectiveness of civil and commercial contracts and market transactions to maintain security and stability of people's courts should be noted that under the <<law of contract interpretation (two >> the provisions of Article XIV, pay attention to distinguish between the effect of mandatory and management of the mandatory requirement. violation of the effectiveness of mandatory, the court finds that the contract shall be null and void, in violation of mandatory provisions of the management of the people's court shall be determined according to the specific circumstances of its effectiveness . "At the same time, the document also requires that:" the people's court shall be the intention of comprehensive laws and regulations, balance conflicting interests, such as the rights of the type of transaction security and its regulation and other objects, the type of comprehensive mandatory requirements identified if the force norms regulating the behavior of the contract as long as the contract itself, which act to harm the national interests of the absolute or social public interests, the court finds that the contract shall be null and void if the regulation is mandatory for the parties 'market access' rather than qualifications behavior of certain types of contract, or regulation is a contract to perform certain acts rather than acts of contract, the court found for the effectiveness of such contracts should be careful to grasp, if necessary, the relevant legislation should seek advice or request to the higher authorities People's Court. "Obviously, in accordance with the current judicial position, what is the impact on the effectiveness of the mandatory provisions of the contract is still not very clear. the rules of this fuzzy approach, will not only affect the implementation of mandatory, and that will directly affect the business transaction is expected to judge - the court will fall into the mandatory provisions of the endless "cycle of identification," being the face of each mandatory, the court must identify whether the effect of its regulations for China that "Legislation has not been established," the country, for the introduction of each new transaction with mandatory laws, the Court must first identify whether the effectiveness of its enforcement provisions, which can then determine whether it will affect the validity of the contract, which will not only judicial continue to go beyond legislation, the referee life becomes very complicated, and, because so far it remains difficult to determine the exclusion of judicial geographical differences, is bound to influence the referee's image, and the national trade order unity.

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Is proficient in business transactions and Shunian people, they will find their own commercial risk, and business opportunities to strive for their own transactions will be through private arrangements between rational trade order. In order to achieve sustained profit-making purposes, commercial transaction itself for flexibility, speed, simplicity and legal certainty required to be higher than the average civil exchanges. lengthy, cumbersome procedures, as well as rigid fuzzy interaction model for business, it is intolerable, so only to ensure the transparency rules judicial positions clarity, uniformity of interpretation of the law, merchants can accurately identify and defense trading risk in today's Chinese society, the court explained technology through the construction of the "private / contract model validity of an act" too complex, lack of identified , leading not just businessmen, and even the legal profession are difficult to accurately infer the legal effect of an act, no doubt to a large extent hindered the implementation of rational expectations merchants.

I advocate the effectiveness of the popular model to simplify the transformation of private law, we may be back <<Contract Law>> Article 52 of the stand - in principle, adhere to "violation of contract laws and administrative regulations that void," the legislative judgments, only in very exceptional circumstances, the court was required to start a narrower interpretation of the model, does not make invalid judgments support the exceptional transactions effect, to abandon the old rules, so that behind the law to adapt to social change requires, but in most cases, the court is negative legal guardian, the court should respect the law, especially in the process of application and interpretation of the new law, the court should have more self-restraint - "respect for the law" is the greatest obligation to the court / task, while not inherently prone to very complex, and even vary widely of "fairness" to judge just to shake the construction of the legislators' legal building. "As a British scholar put it, in the field of commercial law," certainty "of the importance of even more than the" fair sex. "When the court and legal knowledge of groups can not accurately explain what is a peremptory norm, how to make the law, deal with uncertainty, but also how to protect people vulnerable to legal expectations and social expectations? !

Market society is essentially a measure can be calculated and rational society can not be calculated when the transaction becomes more and more, more unpredictable, we need to reflect, is not "human design" has gone beyond the boundaries? We must reflect on laws and court functions, the law is meant to make the complex simple rules to follow society, through a unified pattern of behavior, to model good social structure, and the court's function is to promote respect for the law is - by law enforcement, to achieve legal the default target when the transaction is legal or improper complex and increased business risk, destroying the social expectations, we will reflect on the basic functions of justice and the meaning of the rule of law - the basic functions of justice is through the strict 'rules apply 'or' stare 'to implement the law, justice, although because of the complexity of social reality, change, justice and even beyond the old rules become the norm, but we still recognize the justice beyond the limitations rule of law, not just equal to the supply of a set of complex rules system - the rule of law is also designed to allow the "people's behavior" can transcend the arbitrary rule of man, while a definite quasi-data. Therefore, the effect of simplifying the law simple, explained from simple treatment of China and the world today is multi-recipe risk society in China, although an emphasis on "emotional reason" of the country, but for "emphasis on computing," the commercial structure, how to maintain transaction the subject of rational expectations, uncertainty is resolved to maintain business transactions law applicable to the target behavior.

Third, the commercial application of the law of the specialized behavior:

Commercial Court of the Future

If the legal regulation of business behavior to achieve a uniform, regardless of the internal unity is achieved in the Civil Code, or to achieve a single standardized form, or in actions to implement the Court's decision, the law applicable to business behavior will become increasingly prominent its specialization in the conceivable future, maybe we will usher in a "Commercial Court of the era" - an increasingly well-developed legal business conduct applicable to behavior in the judicial system to promote commercial referee organization developed, and may even contribute to commercial Court in China's modern renaissance from the "human design" point of view, commercial organizations, specialized judges, there are two very important reasons:

First, the group established the Commercial Court is to show the performance of national competitiveness. It is no exaggeration to say that in the modern competitive society, the form of commercial disputes and to address efficiency, related to a national and social development of the overall situation - commercial referee organization specialization is not only an effective referee disputes the court's needs, but also highlight the country's competitiveness is an important part. businessmen in the global competition plays an important role - in general, a more developed country, active on the world stage the more of the businessman, on the contrary, active in a country on the world stage more business, it indicates that the more developed the country may be, trading can be re-distribution of wealth in the world, produces effects similar to the creation of effective production, Therefore, the national competition in a sense become commercial, trade competition, not just the capacity of competition. Adam Smith long ago discovered the secret, nearly 300 years of history of human society, which basically started can be said, who keep the business, will retain a trade (transaction), who retain the trade (transaction, will retain the money, while the Commercial Court - is to resolve disputes through effective to retain an important form of business.

Second, the Commercial Court of groups set up a social governance, whether how to seek independence, we still can not change the court's role as a political structure, China is more obvious political court. The establishment of the Commercial Court, can be more professional and easy to handle commercial disputes, to ease the economic sphere of social conflicts, promote happiness merchants Today China's social problems, not only between the state and citizens, but also in between the state and businessmen, and merchants and traders of room. commercial disputes continue to increase the number of growing complexity and grass-roots pressure on the court, all indicate the significance of the Commercial Court of the modern revival of the contrary, in the absence of a unified business conduct regular, commercial dispute resolution is not as a separate area, which largely affect the "commercial innovation." Thus, not only the pursuit of social justice, judicial reform, judicial or social governance, the Commercial Court of groups set up to help achieve healthy Chinese commercial society governance.

In short, when we shall not build a strong business and society, we need to consider how the overall unity of regular business conduct, how to conduct business through the application of the law to protect business and the community of rational expectations, reduce legal risks and I believe and commercial application of the law may act to promote the organization of commercial disputes referee revival - optimistic forecasts, we may usher in an era of the Commercial Court.

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