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Law merchant

2019-01-19 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- Law merchant,供大家参考学习,这篇论文讨论了商人法。所谓商人法是中世纪期间有关商人、商业事务的习惯法规和原则的总称。 因此,商人法是一个历史形成的概念,是对历史上形成的商人习惯法的总称。商人法曾经是关于商事的国际性法律,它以流行于整个欧洲的商人之间的普遍习惯和惯例为立法基础,并且在各国的商人法院几乎都得到统一的适用。

Law merchant,商人法,essay代写,作业代写,代写

Before introducing the relevant issues of British commercial law, it is necessary for the author to clarify some relevant terms. In reality, the concepts of Commercial Law are confused and vague, which are related to Commercial Law, Merchant Law, Commercial Law, Commercial Law, Commercial Law, etc. In English, there are Law Merchant, Business Law, Commercial Law, etc.

The so-called merchant law is "the general term of customary laws and principles concerning merchants and commercial affairs during the middle ages". Therefore, merchant law is a concept formed in history, which is the general term of merchant customary law formed in history.

The concept of "commercial law" is more widely used in the division of legal departments and the formulation of legal codes. It is generally believed that commercial law is "a branch law which is traditionally parallel to and complementary to civil law. Or "special laws regulating the conduct of merchants, business organizations, and businesses."

"Business Law" and "Commercial Law" are terms in Anglo-American Law system. It should be said that "Commercial Law" is actually a concept in continental Law system. In countries of Anglo-American Law system, there is no concept of Commercial Law in the sense of division of legal departments because legal departments are not distinguished. Not just the rules of the civil law and commercial law firm or the content of the commercial organizations, more is about the antitrust law, tax law, consumer rights and interests protection law, such as content, even includes real estate and mutual, wills and trusts, intellectual property, such as content, mainland scholars like a identity will be translated as "commercial law" or "commercial law".

The use of "commercial law" is an inaccurate concept in China, because the "commercial law" used in China actually refers to the concept of "commercial law of planned economy", that is, "the commercial legislation of a country with a planned economy is limited to domestic commerce, and its content is completely different from the traditional commercial law. Its essential significance should be the general term of the legal norms based on the industrial policy law.

It is undoubtedly inappropriate to translate "Commercial Law" into "Commercial Law" according to the above analysis. Although there are some disputes on some occasions, scholars generally agree that it can be directly called "Commercial Law". Therefore, in this paper, the author calls "British Commercial Law", namely "Commercial Law in UK".

Nothing in the history of English law is more remarkable than the birth and development of the merchant law. The merchant law had been an independent source of law for centuries and had been operated by its own independent merchant court until it was finally incorporated into the common law.

Medieval merchant law is the foundation of modern commercial law. Medieval merchants traded in and out of European markets and markets, and disputes between them were settled by special magistrates' courts. Such as the municipal and municipal courts, and the staub courts. The judges and juries of the court are composed of the merchants themselves and apply the merchant law rather than the local common law.

The merchant law was once an international law on commerce. It is based on the common customs and practices of the merchants throughout Europe and is almost uniformly applied in the merchant courts of all countries. In England, the merchant law was developed independently of the common law, and many of its principles were quite different from the common law. The validity of the merchant law comes from the spontaneous recognition of the merchants who seek the code of conduct. "Merchant law" meets their needs. It emphasizes the autonomy of contract conclusion, the transferability of current assets, etc. It is flexible enough to meet the needs of business practice. Most importantly, it avoids the technicalities of law by adopting a system of speedy adjudication, which judges cases on the basis of fair dealing and good faith. During this period, many important in modern commercial law system and concept to lay, such as: draft system, charter agreement and single system, the concept of transfer and circulation, stop delivery of goods transport system when the buyer's bankruptcy, the goods still in transit, did not receive payment by the seller have a means of relief. If the seller gives notice to the carrier or other goods trustee of the cessation of payment, the seller shall have the right to require the carrier or other goods trustee to return the goods to him and shall have the right to take possession of the goods before payment is made by the buyer. If the seller does not exercise that right, the goods are included in the buyer's bankruptcy property and are equally distributed among the buyer's creditors. And the general average system.

As noted, merchant law is international, not British. Around the 15th and 16th centuries, most of the business of merchant courts was taken over by admiralty courts, which still complied with merchant law. By the 17th century, the commercial jurisdiction of the maritime courts had been taken over by the common courts, largely because of Sir Edward Coke's efforts. In the early 17th century, judge Edward coke began replacing the merchant courts. They did not use merchant law as the legal subject to solve merchant disputes, but only borrowed some principles of merchant law, but still mainly used the common law they are familiar with to judge cases.

While the merchant courts were dying out, the common courts were already in charge of most commercial litigation in the country. In order to maintain and expand jurisdiction over commercial litigation, the common courts have adopted some rules of merchant law. But it was not until the end of the 17th century and the beginning of the 18th century that merchant law was finally fully incorporated into the common law. This is primarily through the efforts of two justices, John Holt and Chief Justice. As Professor Schmitthoff wrote: "judge Mansfield's judicial reform of hearing commercial cases together with his special jurors in the city hall of London was ostensibly to simplify commercial procedures, but in fact its purpose was to create a commercial substantive law with logic, justice and modernity characteristics, and at the same time conform to the principles of common law. It was judge Mansfield's genius that brought about the harmonization of commercial custom with the common law, and that harmonization was accepted almost entirely by the practice of the commercial community, while the old basic principles of law and the harmonized views were accepted by merchants and lawyers.

The development of the merchant law into the common law inevitably led to the complication and huge development of case law, and sometimes even conflicts with each other. From the 19th century, Britain began to call for the adoption of the form of the code to make it organized and clear. In fact, this process is not done by establishing an all-encompassing commercial code, but by codifying some specific areas of commercial law. The codification process owes much to some outstanding drafters. Mackenzie Chalmers drafted the bill of exchange act of 1882, the sale of goods act of 1893 and the maritime insurance act of 1906. Femdefick Pollock, drafted by the partnership act of 1890. All these statutes remain in force today. This is undoubtedly the best testimony to the efforts of these outstanding drafters. Of course, the major principles of 19th-century commercial law were further developed in the writings of prominent commercial lawyers.

After the 19th century, British commercial law gradually lost its international characteristics. It paid little attention to the development of overseas commercial practices and could not keep up with the unlimited expansion of the trade field. It always tried to solve commercial disputes with its own laws and trade practices. Indeed, despite the efforts of judge Mansfield and others who came after him with similar ideas to adapt the law to the needs of business practice, businessmen often wondered whether the general consensus among traders on the typical instruments of commercial circulation could be accepted by the court. It is generally hoped that if the court is not willing to break the rules established in business practice in keeping with the businessman's pursuit of a sense of stability, it will at least be willing to accept the new business practice or, as far as possible, to fulfil the will of the contracting parties at the time of the conclusion of the contract.

In the 17th and 18th centuries, merchant law was incorporated into European domestic law, which meant that the commercial law of Britain and other countries lost its original characteristics of international law. However, since the second half of the 20th century, the call for harmonizing the principles and regulations of commercial law in regulating international trade has become increasingly louder. This process of legal harmonization led to the development of what we now call Trans national Commercial Law. The harmonization of law is accomplished in many ways.

Many groups played a significant role. Examples include the Hague conference on private international law, the international association for the unification of private law, the United Nations commission on uniform trade law, the international chamber of commerce, and the council of Europe and the European Union. These groups harmonize laws in specific areas of international trade, including international sales of goods, international manufacturing and financial leasing, international payment mechanisms, international maritime law and international commercial arbitration.

This reconciliation was also achieved through the international trade practices of the outlawed merchants. Some scholars believe that this will constitute a new era of merchant law, such as the recognition of the application of some principles and rules of international autonomy regulating international trade, without the need to incorporate these principles and rules into contracts or be supported by domestic laws. In a sense, their view is not unreasonable, because the core of merchant law is the sum of all the rules prevailing in merchant society. But the procedure of international trade practices with the real businessman method is different, because only rely on to express or implied in the contract clearly these rules, or rely on the judicial recognition or in the form of legislation, be sure in the domestic law or supranational law, its just have legal effectiveness, rather than simply by its existence purport its effectiveness.

Judges in different countries have consciously and unconsciously borrowed relevant legal concepts of foreign laws, which is called "judicial parallel" or "judicature - to".

The work of scholars has also had a great impact on the development of commercial law that transcends national boundaries. In 1994, the "principles of international commercial contracts" was applied to litigation worldwide, but its application was strictly limited to commercial contracts with international characteristics. In 1995, the "principles of European contract law" was mainly applied to contracts concluded in Europe, but its scope of application was more extensive, regardless of whether it was a domestic contract or a foreign contract, whether it was a commercial contract or a non-commercial contract. Both take the form of a "restatement," similar to the form used by the American legal association. Not only do they state the general principles and rules of contract law, but they also provide the best solution to typical contract problems, such as those related to the responsibility for good faith and fair dealing. Although neither of these statements is legally enforceable, both can be used by parties to a contract and written into their contract. It could also be used by courts and tribunals in seeking the best way to resolve contractual problems or to fill gaps in existing international treaties. Therefore, some scholars believe that these principles constitute a new codified international "merchant law" in the field of contract law.

In my opinion, in a sense, we can say that the frequent and complicated international trade has revived the concept of new merchant law. The work of the international association for the unification of private law and the United Nations commission on the unification of trade law aimed at the unification of international trade law demonstrated the re-emergence of the internationalist spirit of old merchant law. A steady increase in the volume of eu legislation, as well as a growing awareness of the importance of domestic legislation in international trade towards harmonizing international commercial law as markets and transactions globalize, will facilitate the emergence of new merchant law. But we certainly can't hope to restore the ancient merchant law's rapid judgment system and its realistic attitude, nor can we conclude an international commercial code, even part of it, in a very short time. But it is of great theoretical and practical significance if we harmonize, as far as possible, the systems of the civil law system with those of the common law system, and enable each country to have a good understanding of each other's laws and systems governing commercial transactions.

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