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民法和商法的关系问题,既是一个重大的理论问题,也是一个法律实践问题。关于民法、商法相互关系的争论自20世纪以来长期地持续着。在我国,“民法是普通法,商法是特别法”的观点是主流观点,但随着商法理论和实践在我国的日趋繁荣,这一观点受到了冲击。主张弃“民商合一”立法体例而采用“民商分立”之立法体例的学者增多,他们采取实证分析、历史调查等法学研究方法试图为“民商分立”提供依据,但均缺乏说服力,这里对此简要评述。
The relationship between civil law and commercial law is not only a major theoretical issue but also a legal practical issue. The debate over the interplay between civil law and commercial law has long been ongoing since the 20th century. In our country, the view that “civil law is common law and commercial law is special law” is the mainstream view, but this view has been impacted as the theory and practice of commercial law are prospering in our country. The number of scholars advocating the legislation of “integration of civil and business” and adopting the legislative approach of “separation of civil and commercial” has increased. They take the legal research methods of empirical analysis and historical investigation as the basis to try to provide the basis for “separation of civil and commercial”, but they all lack persuasion Here’s a brief comment on this.