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随着再度重现的民法典立法热潮,民法与商法的关系问题也再度成为一个焦点问题。商事规则缺失、商事空间过狭,民事立法对商事特殊性照顾不周,形成我国商事立法严重滞后于商事实践需求的现实,这也是商事通则的缘起。然而商事通则面临着两大困境:商法本身难以抽象出共同规则,过于抽象的商事规则又与民法规则相同。编纂民法典应当吸收商事通则建议稿中对民法立法形成重大突破的内容。经由编纂民法典实现民商合一,为商事发展预留充足的空间、完善相应的商事规则,是解决问题的现实途径。
With the re-emergence of Civil Law Code craze, the relationship between civil law and commercial law is once again a focus issue. The lack of commercial rules, too narrow commercial space, the lack of civic care of commercial legislation by civil legislation, and the fact that China’s commercial legislation lags far behind the need of commercial practice are the realities of the commercial rules. However, the General Rules of Business are faced with two major dilemmas: it is difficult to abstract the common rules in the commercial law itself, and the rules of abstraction of the commercial rules are the same as the civil laws rules. The compilation of civil code should absorb the content of the major breakthroughs in civil law legislation contained in the draft of the General Rules of Commercial Law. It is a realistic way to solve the problem that civil-commercial integration should be made through compiling the Civil Code, reserving sufficient space for commercial development and perfecting corresponding commercial rules.