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传统中国虽无近代体系上的商法,但有着较为丰富的商事习惯法,而其特点深受传统文化的影响。儒家的“诚信”“守礼”观念影响了商人经济伦理,儒家血缘文化和亲情伦理使得商业行会的地缘化和血缘化突出,自治性不如西方行会。儒家的无讼、调解文化则使得商业纠纷的解决倾向于熟人调处的方式。道教文化的神灵崇拜强化了商人诚信伦理,商业行规的订立与公示、违规惩罚往往也依托道教神灵进行。相比于中国,西方商事行业团体的民主性和宗教性较为突出,家族伦理较为淡化,更注重纯经济利益和行业自治,注重理性裁判而非私人调解,这些都体现了西方文化的特点。当代中国尚未明确规定商事习惯法的直接法源地位,就现实来看无法适应经济社会的快速发展,应加以完善,并从西方文化和商事习惯法传统中获得借鉴。
Although there is no traditional commercial law in the modern system, traditional China has a wealth of commercial customary law, and its characteristics are deeply influenced by the traditional culture. The concept of “integrity”, “courteous service” of Confucianism influenced the economic ethics of merchants. The Confucian blood culture and the ethics of kinsfolk made the commercial guild more prominent and more marginalized than the western guilds. The non-litigation of Confucianism and the mediation culture make the settlement of commercial disputes inclined to the mode of acquaintances mediation. The god worship of Taoism culture has strengthened the establishment and publicity of businessman’s ethics of integrity and commercial rules and regulations. Penalties for violations often rely on Taoist gods. Compared with China, the western commercial groups are more democratic and religious, their family ethics are more desalinated, they pay more attention to pure economic interests and industry autonomy, and rational judgments instead of private mediations, all of which reflect the characteristics of Western culture. At present, China has not clearly stipulated the direct legal source status of commercial customary law. In reality, it can not adapt itself to the rapid economic and social development. It should be improved and learned from the traditions of Western culture and commercial customary law.