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我国商事立法一直采用颁布单行法的模式。但实践表明,仅具有个别特征的单行法不足以适应调整商事关系的需要,还需要具有一般性调整特征的商事法,即“商法通则”。商法通则与其它单行法都是民法的特别法,但其在商事法领域具有一般法的性质。无论内容还是形式,商法通则均不应追求商法典结构。“商法通则”已经成为我国商法学界的一种学术取向。本文认为“商法通则”作为商法领域的统帅,虽然方向明确,但是路径并不十分清晰。事实上,“商法通则”不应该仅是一个口号,也并非凭借激情即可完成的事业。“商法通则”的制定是一个洞察现实、反现历史、明白义理的历程。在此,我们要高举理性,捋清商法的脉络机理,完成一部在整个法律体系中定位准确、在整个商法体系中统帅全局、在自身的文本结构中逻辑严密的法律。
Commercial legislation in our country has always adopted the mode of promulgation of single-line law. However, practice shows that a single-line law with only individual characteristics is not sufficient to adjust to the need of commercial relations. Commercial law with general adjustment characteristics is also needed, that is, “General Principles of Commercial Law.” The General Principles of Commercial Law and other single-line laws are special laws of civil law, but they are of a general law in the field of commercial law. No matter the content or the form, the general principles of commercial law should not pursue the commercial code structure. “General Principles of Commercial Law ” has become an academic orientation of our commercial law circles. This paper argues that “General Principles of Commercial Law ” as commander in the field of commercial law, although the direction is clear, but the path is not very clear. In fact, “General Principles of Commercial Law ” should not be just a slogan, nor is it a career that can be accomplished with passion. The formulation of “General Principles of Commercial Law” is a course of insight into reality, retrospective history and understanding of justice. Here, we must hold high the reason and clear the context and mechanism of commercial law, and complete a law that is accurate in the entire legal system, supervises the whole situation in the entire commercial law system, and has a strict logic in its own textual structure.