在民法典起草过程中,如何正确认识和构建民法与商法的关系,引起了广泛讨论。大部分学者总体上赞同“应当按照民商合一的体例进行整体设计和构建”~①这一观点。但是,对民商合一的体例却存在不同观点:一是建议维持现有的立法模式。对现行立法模式又有两种理解:有的主张坚持以民法统率商法制定民商合一的民法典;有的主张坚持分裂后的民法与商法。二是建议在民法总则的基础上单独制定商法通则。这些观点莫衷一是,根本原因在于对民法与商法关系的认识不同。本文试图通过类型思维,从民商事关系的本质出发,解析民法与商法之间的关系实质,并以此为基础提出民法典较优的立法模式。 In the process of drafting civil code, how to correctly understand and construct the relationship between civil law and commercial law has aroused extensive discussion. Most scholars generally agree with the view that “the overall design and construction should be carried out in accordance with the system of integrating civil and commercial practices.” However, there are different views on the way in which people and businesses are integrated: First, it is suggested to maintain the existing legislative model. There are two different understandings of the current legislative model: some argue that the civil code should adhere to the civil law and commercial law should be followed in formulating a civil code that integrates civil and commercial interests. Some advocate the persistence of split civil and commercial laws. Second, it is suggested that the general principles of commercial law should be formulated separately on the basis of the general principles of civil law. These two views are incomprehensible. The fundamental reason lies in the different understanding of the relationship between civil law and commercial law. This article attempts to analyze the nature of the relationship between civil law and commercial law through the type of thinking and from the essence of the civil-commercial relations, and based on this, puts forward the superior legislative model of civil law.