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在具体展开本文的讨论前,笔者希望指出美国统一商法典在背景上与我国的两点重大差别,第一,美国沿承普通法的法律传统,成文法并不多,这导致统一商法典的编纂其实是其立法上的一项体例创新,而非常例,这也导致该商法典在美国学界的讨论中也涉及法律思维的争论:比如需要处理法典与普通法的案例在相同事项上竞合时的适用①;第二,美国统一商法典是一部示范法,由美国法学会和全美统一州法委员会联合制定,再由各个州自行决定是否采纳,这意味着其在各个州的条文可能经修改完全不同,也意味可能出现各州在立法上的竞争和比较,这与我国商事立法的背景十分不同。我国无论是选择制定商法典或者在民法典外单独制定商事规则,在法律层级上都应该是法律,在效力上是全国通行。
Before discussing this article in detail, I would like to point out two major differences between the United States Commercial Code and our country in the background. First, the United States follows the legal tradition of the common law and does not have many written laws. This leads to the codification of the Uniform Commercial Code In fact, a legislative innovation, but a very common case, which led to the commercial code in the American academic debate also involves legal thinking: for example, the need to deal with the case of common law and common law when competing on the same issues Second, the U. S. uniform commercial code is a model law that was jointly developed by the American Law Society and the National Unified State Law Commission and then decided by individual states whether or not to adopt it, which means that its provisions in various states may be amended Completely different, but also means that there may be state competition in the legislation and comparison, which is very different from the background of our commercial legislation. Whether China chooses to make the commercial code or formulates the commercial rules separately from the Civil Code, China should be law at the legal level and pass the whole country in effect.