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一、商法思维的基本内涵(一)法的思维关于法的思维,主要有“应然说”、“实然说”、“应然和实然统一说”三种观点:“应然说”认为法的思维是社会对法的价值要求,必须在法的价值范畴中加以把握;①“实然说”认为法的思维是对法律的本质及其发展规律的一种宏观的、整体的理性把握和建构;②“应然和实然统一说”认为,法的思维是法的精神与法的实在之间的内在统一,既是具体法形态的内在,同时也是法的本体。③从上述三种观点来看,“应然和实然统一说”更能体现现代法律思维发展的基本规律。从应然性的角度,法的思维注重法的合目的性,是人们对法之应然目标的理想和信念,具体表现为通过法律制度的不断建构和完善以实现公平和正义等法之终极价值目标;从实然性的角度,法的思维则强调法的稳定性和有效性,是人们对法之现状的理性认识和基本观念,具体体现为通过对法律的规范设计以有效实现人类社会的秩序与稳定。因此,可以认为,法的思维应是实然性和应然性的统一。
First, the basic connotation of the thinking of commercial law (A) of the thinking About the thinking of law, there are mainly “should say ”, “really say ”, “ : ”Should say “ think that the thinking of law is the social requirement of law value, it must be in the value of law to grasp; ① ”really say “ that the thinking of law is the nature of the law and its development The law of a macro, the overall rational grasp and construction; ② ”should be and the fact that unity“ that the law of thinking is the spirit of the law and the reality of the internal unity between the law, both concrete forms Internal, but also the body of law. ③ From the above three points of view, ”should and should be unified,“ ”to better embody the basic laws of the development of modern legal thinking. From the point of view of necessity, the thinking of law focuses on the purposefulness of the law, which is the ideal and belief that people should regard the law as its due goal. The concrete manifestation is that through the continuous construction and perfection of the legal system to realize the ultimate of fairness and justice, From the realistic perspective, the law’s thinking emphasizes the stability and validity of the law, which is the rational understanding and basic idea of people’s status quo of the law. The concrete manifestation is that through the standardized design of the law to effectively realize the human society Order and stability. Therefore, we can think that the law’s thinking should be the unity of the real and the contingent.