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中国民法典之制定正在紧锣密鼓地进行中,体系上与德国民法典有诸多雷同之处。但德国民法采取民商分立原则,在民法典之外尚有商法典,后者尚且早于前者问世。此一现象,固有其历史背景,然时至今日,民商分立之传统是否仍值得效法,值得探究。德国商法典的两大规范对象为商事活动主体(商人及商事组织)及商事行为。商事组织方面,由于大量有关公司形态之特别法的颁布,商法典的重要性已经大为降低。至于商事行为方面,其多属债法之特别法,部分规定与民法重叠,部分规定甚至与民法相抵触。商事行为中关于行纪、运送、承揽运送及寄托之规定,并非不能仿效瑞士直接规定在民法之中。2 0 0 2年德国债法现代化后,商法典部分规定也随之调整。作者认为,商法规定逐渐融合于民法之中,将是大势所趋。
The formulation of China’s civil code is in full swing, the system has many similarities with the German Civil Code. However, the German civil law adopts the principle of separation of civil and commercial businesses and there is still a commercial code outside the Civil Code, which is still before the former. This phenomenon is inherent in its historical background. However, up till now, whether the tradition of separation of civil and commercial businesses is still worth emulating is worth exploring. The two major norms of the German Commercial Code are the main body of commercial activities (merchants and commercial organizations) and commercial activities. With regard to the commercial organization, the commercial code has become significantly less important due to the large number of special laws that govern the formation of companies. As far as commercial conduct is concerned, it is subject to the special law of multi-part debt law. Some of the provisions overlap with those of civil law, and some of the provisions even contravene civil law. The stipulation in the commercial act concerning the handling, delivery, contract delivery and sustenance can not be imitated by the direct provisions of Switzerland in civil law. After the German debt law was modernized in 2002, part of the commercial code also changed. The author believes that the gradual integration of commercial law provisions in civil law, will be the trend of the times.