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现在人们普遍认为商法产生于中世纪商人法,罗马法中无商法。该观点源自对商法范畴在历史语境下具体分析的阙如,其论据主要为罗马法律词汇中没有表示商法部门及区别于一般私法制度的概念和术语。通过分析原始文献可以发现这些论据是不成立的。裁判官为了因应罗马国家的扩张,在告示和相关司法活动中创造出一系列专门规制此等特殊法律关系的规范,昭示了实质意义上的商法的诞生,银行法为其重要组成部分。银行业活动在公元前4世纪便已在罗马出现,在商业化时代获得重大发展。为规范这些具有特殊性的活动,罗马法学在司法管辖、组织机构、账簿出示、抵销等具体制度中回应了实践的要求。在从商业化时代向优士丁尼时期的转变过程中,银行业经历了衰落与复兴,并在相关法律规范中映射了这一过程。
It is now generally accepted that the commercial law came from medieval merchant law and that there is no commercial law in Roman law. This view stems from the absence of a detailed analysis of the categories of commercial law in the context of history. The argument is mainly based on the notion and terminology of the Roman law that the commercial law department is not distinguished from the general private law system. By analyzing the original literature we can find that these arguments are not valid. In order to cope with the expansion of the Roman state, the magistrate created a series of norms in the notices and related judicial activities to regulate these special legal relations. This shows the birth of a substantive commercial law and the banking law is an important part of the law. Banking activities emerged in Rome in the 4th century BC and achieved significant growth in the era of commercialization. In order to regulate these particular activities, Roman jurisprudence responded to the practical requirements in specific systems such as jurisdiction, organization, account books and offsetting. During the transition from the commercial era to the Ursini era, the banking industry experienced a decline and rejuvenation, and the process was mapped out in relevant legal norms.