【作者】 李春；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 博士

【摘要】 商法上的许多重要问题和概念,似乎很容易惹上麻烦和质疑,商事责任即是这样的问题。研究者首先面对的是,该责任是否独立存在;与一般所提民事责任是何关系;基础怎样;适用的对象如何;有无特殊归责原则;责任有何特点等等。这些质疑虽然并不见得怎样深刻,但当下的商法学界也鲜有人予以系统的回答,这就是商法基础理论研究之现状。正如支撑商法存在的其他基础性问题一样,成为商法研究的薄地,似乎都没有形成丰富的足以回应质疑的理论成果。法律是一种社会规范方式,责任是规范的重要手段,也是法律规范具有较强社会规范效力的重要保障。各部门法相互区分应考虑的因素,除了包括其价值、功能、目的、所调整的社会关系外,还应考虑作为调整手段、机制的责任制度。正如传统的民事理念、原则和规则形成传统民事的处理和责任认定规则一样,经典的商事理念、原则和规则也必然形成特有的商事处理和责任认定规则。遗憾的是,我国理论和实践受民商不分之势强影响,商事责任的特殊存在始终未受到应有的关注。但只要进行简单的宏观理论思考和介入丰富的商事法律实践,民、商事责任之差异,又如影随行,无处不在,带来诸多困惑。凯尔森认为,一门科学必须就其对象实际上是什么加以叙述,而不是从特定的价值判断观点去规定其对象应该如何。实践决定法律,而不是逻辑决定法律。商法是典型的实践法学,与民法比较,基础理论本不深厚,商事责任就更无系统理论可资借鉴,这就不仅需要在研究中进行相关理论挖掘,更重要的是时常寻找商事司法实践的观照。围绕商事责任之基础论证与展开,本文共分五章:第一章商事责任缘起论。以民、商法关系论争及带来的相关困惑为切入点,提出商事责任。之后,在总结、评析各家已有商事责任概念的基础上,提出本文的商事责任概念,即商事责任是指商事主体在经营活动和主体存续中因违反商事私法义务而产生的依法应予履行或需予容忍的义务。指出商事责任首先是一种商主体因违反私法义务产生的私法负担,要与公法责任划清界限;商事责任不仅涉及主体的对外营业责任,而且也将主体内部的部分法律关系作为商事责任的范畴;商事责任在消极意义上不仅有不利后果,也有容忍义务。接下来在已有研究成果的基础上提炼和概括了商事责任的特征。第二章商事责任存在论。重在解决商事责任的存在基础问题,而回答这一问题的关键是民商法之差异。本文认为,商法不是民法的特别法,商法和民法是兄弟关系,同属私法。在与民法比较的基础上,厘清了商法的独特性,即基本回答了商事责任独立存在的依托问题,因为法之独特性决定法律责任之独特性。民法和商法有诸多差异,本章只对基础性的几个差异作了重点论述。第一,根据起源的比较,从历史的角度检视了商法和民法不同的产生背景和社会条件,得出二者存有不同的脉系。第二,根据民、商法对经济关系的适应性差异,从经济学角度指出民法是简单商品经济的适应法,而商法是高级商品经济的适应法,在调整商品经济运转上,民法是一简单齿轮,商法是一高级齿轮,是二者的相互咬合运动共同维持着私法在商品经济社会的重要规范地位。第三,价值取向是不同部门法区分的重要根据,决定着法的基本原则、制度构成、理论结构、调整机制等多方面的内容。本文提出民法的价值取向是公平优先,商法的价值取向是效益优先。第四,根据民、商法调整对象在主体、行为、外在特征等方面的差异论证了商事关系的独特性存在,完成了商事责任相较于民事责任独立存在的商法学基础论证。第三章为商事责任原理论。旨在寻找支持商事责任独特存在的法理根据、制度根据,并在对民事过错归责原则反思的基础上回答商事归责原则之独特存在。本章首先通过法律责任的哲学根据阐释,表明不唯私法责任包括公法责任在责任根据上都能与理性约定、意志自由和行为选择自由直接或间接联系在一起,从而批判了部分私法研究者将责任根据过多集中于上述方面的努力,对在责任研究中过多将意志自由等作为责任区别和特殊性的理论说明意义提出质疑;指出民、商事责任之区别需另寻他途。之后,在批判功利论、道义论作为区分部门法的思路后,指出部门法责任制度之区分,只有在深入责任制度的价值追求、目的功能、责任根据以及具体调整机制等基础上才较容易形成。据此,本文从主体地位转变带来的风险负担分配、责任功能的诉求与责任理论的偏好、道德因素的渗透到道德与责任的分离、民、商法本位的区分与责任机制的差异等方面对民事责任与商事责任进行了较为深入的比较研究,重点指出商事责任风险较多的分配给行为人、责任更重人际标准、较少介入道德因素、责任本位为企业本位,对商事责任的法理予以了概括和说明。由于归责原则往往是责任原理的重要部分,本章的另一重要内容是对商事归责原则的思考。根据对民事过错原则的宏观反思,指出并非存在统一的归责原则,民法谋求统一归责的努力已宣告失败;如果非要总结归责原则,商事责任的归责原则应该是严格责任原则。第四章商事责任主体论。从商事主体角度总结、论证商事责任。本章首先揭示了主体权利、义务及责任的不同制度安排是私法中不同人格“映像”的反映。在对私法人格的解析中,无论最初的理性经济人,还是后来的修正的理性经济人定位,本文认为都对私法中的人作了过分经济的解读,尤其是近代民法,被过多套上了经济理性人的外衣,偏离了主体的实际存在。现代私法应该对此予以充分关注,民事立法须从经济理性人完成向普通民事伦理人的回归,而商事立法则仍需坚持经济理性人定位;同时指出,商事主体应承担更多的注意义务。之后,本文以较为宏观的视角揭示了商人责任从无限责任到有限责任的一般演变规律,同时以法人人格否认与有限责任的相对化等论证了随着有限责任广泛应用带来的弊害,商事主体责任出现了有限责任向无限责任的回归现象,同时揭示了其蕴含的商事法理。接下来,对商事主体组织变动及相关责任进行了探讨,并认为组织体分立、合并内涵着商事目的,甚至是商事交易的另一种形式,属商事责任范畴。本章最后以商事责任主体的扩大为视角探讨了组织体内部存在的诸如董事、经理商事责任问题以及因公司内部决议引发的决议责任问题。第五章商事责任行为论。重点是在梳理商行为概念、构成和特征的基础上,研究商行为规范中的商事责任特点。本文认为,行为是责任规范的核心,几乎所有的责任规范都是从行为的规律性总结中去设定的,商事责任也不例外。商事责任规范设定要反映行为的特点、规律和要求,同时也只有如此才能达到行为规范的目的。对二者的关联性,国内立法和研究尚未引起充分关注。据此,本章首先在总结商行为已有研究的基础上,指出商行为就是一种以营利为目的的营业行为,同时对商行为的构成和特征进行了解析,总结了商事交易与简单商品经济条件下民事交易的十大差异及影响。之后,以司法实务为基础,从商行为责任设定上的加重责任、外观责任、营利性尊重与保护、社会性等全面总结了商事责任的行为设定的特点。加重责任的特点指出,商事行为责任不仅表现为立法上第一性义务的加重,而且在责任的实务论定上更多的注重结果论责、客观外在效果论责、更多的免责限制、举证责任的加重等;外观责任的特点指出,商事责任离不开行为法律效力的考察和评价,法律正是在肯定和否定行为效力之间厘清了它对商行为责任规范的界限,外观责任正是通过肯定外观事实决定行为效力的法则,使外观事实的形成人承担一种不利后果或容忍义务,保护行为相对人的信赖利益;营利性的尊重和保护从商事责任的权利救济角度,结合司法实务中的若干问题强调了商事责任适用上的营利保护特点和需求;社会性则从行为的内在需求和社会外在控制需要角度揭示了商事责任不同于民事个人责任的社会性色彩,但并不等同于社会责任的特质。结语部分,对全文研究进行了简要回顾和总结,指出尚待研究的问题。更多还原

【Abstract】 Many important issues and concepts on Commercial law are very easy to be doubtful, and commercial liability is such a problem. The first problem researchers has to face is whether the commercial liability is independent existence; and the relationship with the civil liability; the basis of commercial liability; the object which the commercial liability aim at; the Liability principle of commercial liability; the features of commercial liability and so on. While these questions are not so profound, little commercial law scholars have answered systematical, and this is the status of fundamental research in commercial law. As the other fundamental concepts in the commercial law, the research for commercial liability are not rich enough to respond to questions form the theoretical doubts. Law is a social managing approach, the Liability is an important mean to manage as well as to make the legal norms have a strong effect to be social norms and get the importance of security. The law sectors differentiated from each other by many factors, including its value, function, purpose, the social relation which it works. And the liability is even more important for it is the mean and mechanism by which the law shows its power. As the traditional civil philosophy, principles and rules have formed the ways to handle and investigate the traditional civil Liability, the classic commercial law concept, such as principles and rules, are bound to form a unique way to identify the commercial liability. Unfortunately, our theory and practice are influence by the mix of civil law and commercial law, so the specialty of commercial liability has not received its deserved attention. But if we have the macro-theory thinking and a wealth of commercial legal practice, the difference between civil and commercial Liability will be so obviously that it makes a lot of confusion. Keelson believed a science has to discuss the object to be described in reality, rather than to determine its object from a specific point value. Practice determines law, not the logic. Commercial Law is a typical legal sector depending on practice. The basic theory of commercial law is not as profound as civil law. And commercial liability theory doesn’t has the theory system can learn from, either. So the research of commercial liability requires not only the study in the relevant theories, but also the looking for Commercial Law Practice. Based around the basis and expansion of commercial liability, the paper is divided into five chapters.Chapter one proposed the concept of commercial Liability. Starting with the debate between commercial law and civil law, associated with the related confusion, the paper proposed the concept, commercial liability. After summarizing the various existing concepts about commercial liability, this paper put forward a commercial concept of commercial liability, that is, commercial liability refers to the obligations resulted from the business main, in the business activities and its existence, violates the commercial private law obligations. The paper pointed out that the commercial Liability is resulted from the breach of private law, arising under the private burden, different from the public law duty; commercial Liability is not only resulted from its business act, but also from its internal legal relationship. In a negative sense, commercial liability is not only an adverse consequence, but also the obligation of tolerance. Then, the paper propose the commercial Liability’s characteristics, based on the existing researching results, summarizes and refines the sorts of commercial liability.Chapter two is on the existence of commercial liability, focusing on the basis of the existence of the commercial Liability. The most important issue to answer this question is the differences between Civil and Commercial Law. This paper argues that commercial law is not a special law from civil law; commercial law and civil law are in the same level, belonging to private law. In comparison with the civil law, based on the unique nature of commercial law, the paper clarified that the basic answer to the commercial liability’s independent existence, since the liability is differed by different laws. Here are many differences between civil and commercial law, this chapter choose a few differences to discuss. First, according to the comparison of the origins, from a historical view to review the background and different social conditions of commercial law and civil law, the paper argues that they are in two different systems. Second, based on the different adaptabilities of the civil law and commercial law in economic relations, from an economic view to review, the paper argues that the civil law is law for simple commodity economy, while the commercial law is the law for high commodity economy. In the adjustment operation of the commodity economy, the civil law is a simple gear, and the commercial law is a high gear, so they are in the mutual occlusion to promote the economy and society. Third, the value orientation is an important distinction between different law departments, which determines the basic principles of law, system composition, theory, the adjustment mechanism, and many other contents. This paper argues that the value orientation of civil law is fair while the values orientation of commercial law is efficiency. Fourth, according to the subject, behavior, external features in commercial law, the paper demonstrates the unique nature of commercial relations, so that the independent existence of commercial liability is proved compared with the civil liability.Chapter three is on the original theory of Liability for the commercial law, in order to find the support for the unique existence of commercial liability. Reflected on the Fault Liability Principle, the paper argues to the unique commercial Liability Principle. This chapter begins with the liability’s philosophical basis; this paper shows that both the Liability of public law and the liability of private law can be directly or indirectly linked to the agreement with the rational, free will and freedom of choice. So this paper criticize the private law researchers for they are excessive focusing on these factors about Liability. So the will of freedom are not the differences and particularities between the liability theoretical description, and the distinction between civil Liability and commercial liability needs to be found another way out. Then, in critical of the utilitarian theory and moral theory which was used to distinguish law departments, the paper points out the distinction between law departments are the value, function, Liability basis and regulating mechanism. So, this paper compares the civil liability with the commercial liability from the burden of risk, the demands of the Liability, the preferences of the liability theory, the penetration of moral factors, the separation of morality and Liability, the distinction between civil law and commercial law. The paper highlights the risk of liability should be burdened by actors, business main, caring less moral factors. This paper makes a summary and description about the commercial Liability. Since the liability principle is an important part of the Liability theory, another important contents of this chapter is the principle of commercial liability. According to revise the principles of civil fault in a macro thoughts, it is not necessary to get the principles in unity, for the efforts to achieve the unity of civil liability principles has failed. If you have to sum up the principles of Liability, Commercial Liability principle should be the principle of strict liability.Chapter four demonstrates the commercial Liability from the point of view the main. This chapter first revealed several of the rights, obligations and responsibilities are some arrangements in private law to differ many“personality". In the analysis of personality in private law, whether the original rational economic man, or subsequent amendments to the rational economic man, this paper argues that all persons of private law made over the economic purpose, especially the modern civil law, putting on too much economic rational man coat, deviated from the subject’s physical presence. Modern private law should be fully aware of this, so civil legislation should be completed from the rational economic man to return to ordinary civil ethics, while the commercial legislation still needs to uphold the commercial rational economic positioning. This paper also points out that the commercial main should take more obligations on attention. Then, this article reveals a more macro perspective about the Liability of businessmen from unlimited liability to limited liability, and to deny the legal personality and the relativization of limited liability, so that this paper demonstrates the evils which the limited liability brought about. The main commercial liability limited liability appeared to return to the phenomenon of unlimited liability, and the paper announced its basis of these entire phenomenons in commercial law. Next, the commercial organization and the responsible body changes are discussed, and the organizational body of separation and M&A has so many commercial purposes, even business transactions in another form, including in commercial Liability categories. The chapter concludes, in the expansion perspective of commercial main, responsibilities about the organizations that exist within the body, such as directors, managers, and commercial liability arisen from the resolution within the company.Chapter five is focused on combing the concept of business behavior, the composition of commercial behavior and its characteristics. This chapter tries to define the feature of commercial liability in business actions. This paper argues that behavior is the core in Liability norms. Almost all Liability norms use the behavior form to set the law in, and the commercial liability is no exception. Commercial liability norms have to reflect the behavior’s characteristics, rules and requirements, while only in this way the norms’ purpose can be achieved. The relation between both of them hasn’t gotten full attention, both in domestic legislation and the research. So, this chapter starts with the existing business behavior theory in order to demonstrate that business act is a for-profit business behavior, while the composition and characteristics of business conduct were resolved. The paper summed up the ten differences and influences between commercial transactions and civil transactions in a simple commodity economy. On the basis of judicial practice, the paper concludes the characteristics of liability in business conduct, according to the increased Liability, the appearance Liability, business respect, protection of profit and society. The features of increased Liability point out that the liability of commercial behavior is increased not only in the legislation, but also at the practice of results-oriented more objective, more limited exemption and increasing the burden of proof; the feature of appearance liability shows that Liability is inseparable from evaluation of legal effect in acts of commercial behavior, and the law works in effect between positive and negative behavior to clarify the responsibilities’ boundaries. The appearance Liability is the determined by the fact that certain acts of the appearance have the effectiveness of law, to give that people an obligation to tolerate the adverse consequences so that the law can protect the interests of relations in the trust; respect and protection of profit is determined in the view of the relief of responsibilities, combined with a lot of number of issues in judicial practice to emphasize the profit characteristics and needs in commercial liability’s protection; the social effects of commercial behavior differ the commercial liability from civil liability from the internal needs and social needs for the external control perspective, but not the same as the characteristics of social Liability.Conclusion part of the full text briefly reviews and summarizes the whole paper and points out what must be addressed further.更多还原