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大陆法系国家由于其特殊的法统,即以部门法的划分构建起整个法律体系的框架,因此存在立法体系内部协调问题。在私法体系内部这一问题的焦点即是作为私法基本法的民法与商法之间的协调归属问题。本文以是否主张制定形式商法将商事立法模式的进路选择分为大民商合一论和大民商分立论,而后结合《民法总则》对商事关系的失败回应对商事立法模式的重新构建进行探讨,提出以务实的态度推动商事通则的制定才是当下解决商法立法模式最紧迫的问题所在。
Due to its special legal system, that is, the civil law system establishes the framework of the entire legal system by the division of departmental law, there exists the problem of internal coordination within the legislative system. The focus of this issue within the private law system is the question of the attribution of the coordination between civil and commercial law as the basic law of private law. In this paper, whether to advocate the formation of commercial law will be the choice of commercial lawmaking model is divided into large commercial integration theory and large commercial separation theory, and then combined with “General Provisions of Civil Law” on the failure of commercial relations to respond to the commercial legislative model to rebuild Explore and put forward to pragmatic attitude to promote the development of the General Rules of Commerce is the most immediate solution to the legislative model of commercial law where the problem lies.