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Commercial thinking

2019-08-24 来源: 51Due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- Commercial thinking,供大家参考学习,这篇论文讨论了商事思维。民法逻辑是由法律概念出发的民法体系结构,但是其很难解决商业纠纷,所以明确商法思维特殊性,摆脱民法限制成为商业实践发展的关键。根据民法与商法的功能与价值取向的本质不同,民商合一立法体例已难以解决现实中的商业问题,商法思维在商业实践中运用的必要性日益凸显,故突破民法逻辑束缚、把握商事思维,指导商事审判亟须被提上日程,为经济社会的发展提供法律力量。

The essence of the logic of civil law is to raise the common existing civil activities to a superior concept by means of induction and summary, and then deduce the way to solve the civil disputes, with more emphasis on the systematization and standardization of legal logic. In the traditional civil law, the basic principles of autonomy of will, freedom and equality are developed around the three concepts of person, right and legal act. The civil law focuses on the expression of the will of the person, and guides various civil rights and obligations through different legal ACTS, and then determines different legal liabilities according to the nature of the ACTS. Due to its high starting point and wide coverage of logic generalization, it forms a well-structured and stable system structure. In contrast, commercial law is different from civil law at the beginning of its establishment. From the traditional business law based on identity to the modern business law, business identity is not the basic value of commercial law, and the commercial society is complicated and changes rapidly, which makes it difficult to form a unified and stable system standard like civil law.

In the traditional civil law, the theoretical research of civil subject is carried out by people and legal persons, and the legal issues such as their rights capacity, behavior capacity, will expression and liability undertaking are discussed. All aspects of civil law emphasize the personality meaning of civil subject. In commercial law, research on business subject system is no longer limited to the scope of any natural or legal person virtual personality, and focuses on the type of business main body and the responsibility, beyond the space, the discussions of the civil subject in civil law based on the interests of the business activities need to appear all kinds of commercial features of the new subject, typed degree is higher, the scope of study and research level is obvious and the scope of civil subject.

The application of the bona fide acquisition system in the civil law is based on the fact that the third party in good faith possesses the subject matter legally and at a reasonable consideration price, and only then does the real right change occur. Otherwise, the original obligee may ask the third party to return the original object based on the real right. However, commercial law pays more attention to the protection of circulation and transaction results, and the requirement of duty of care of bona fide third party is not as strict as that of civil law. Take article 16 of the company law as an example, which stipulates the internal decision-making mechanism of whether the guarantee provided by a company for others is valid or not, involving the protection conflict between the internal decision-making effect and the performance effect of external contract. From the perspective of commercial law, if a company and a third party reach a legitimate and authentic external guarantee, it will not affect the guarantee effect of the third party regardless of the effectiveness of internal decision-making, and the third party's duty of care need not involve the investigation of the company's internal decision-making process, which is obviously more in line with the concept of commercial transactions.

The protection of individual private rights in civil law is "absolute protection", that is, private rights are sacred and inviolable. An important manifestation is the absolute observance of "will expression". Except for some legal cases, no matter the real right or the creditor's right, the change of rights should be based on the real and effective will expression of civil subjects. However, in the field of commercial law, due to the circulation and complexity of commercial activities, it will increase transaction costs and risks if too much emphasis is placed on the expression of real intention while ignoring the trust in the appearance of rights. Therefore, commercial law should be more inclined to protect commercial efficiency and transaction circulation to ensure the continuity of commercial activities. Therefore, commercial law emphasizes the balance protection of interests and risks, and gives way to the absolute fairness of civil law.

Although the civil law proposes the concept of "legal person" to give companies and other commercial subjects the status of civil law, it is still not enough to cover all kinds of subjects in commercial law, leading to insufficient legal basis for some commercial forms and difficulty in defining concepts. Take the concept of "company in establishment" as an example. It has not been registered yet, has no right ability and behavior ability, and of course does not have legal person status. However, it involves various preparatory activities and business activities before the establishment of the company. Although the civil law tried to explain its subject attribute by "quasi-partnership", it failed to carefully sort out the logic of company-to-company transformation and responsibility succession, resulting in the lack of identification of identity nature.

The rule of real right follows the basic logic of civil law. In terms of enterprise property rights, the principle of "who invests, who owns" is also adopted to determine the real owner. However, in practical business practice, there are a large number of entrusting behaviors of equity, which result in the separation of equity ownership and actual investors. Therefore, there are logical problems in the identification of the attributes of equity holders by law. First of all, there are two types of shareholders in the company law: nominal shareholders and hidden shareholders. The status of shareholders is subject to the record on the roster, which particularly reflects the application of externalism. However, under the logic thinking of real right in civil law, the ownership of equity must be the actual investor, which should be based on the fairness principle and the true intention. The theory of real right and creditor's right in civil law cannot coordinate with the commercial society, especially the development reality of enterprises.

The realization of debts arising from breach of contract in the civil law starts from the principle of fairness and reasonabilityand focuses on the compensation to the parties concerned. The civil law normalizes the restriction of liquidated damages by the principle of strong fairness and limits the compensation to the actual amount of losses. Even if the parties have a high agreement on liquidated damages, the higher part will be invalid because it is not recognized by the law. However, in the commercial thinking, the status of commercial subjects of both parties leads to their different judgment abilities from that of civil subjects. The judgment ability of risks and benefits of businessmen is based on voluntariness, and they often have their own interests to consider. Similarly, the establishment of high liquidated damages is a real and free agreement of both parties, such as excessive legal intervention, will not be conducive to the efficient development of both parties' business operations and businesses.

The protection of the person in the civil law mainly lies in the right of personality, and the liability borne by infringement of the right of personality is mostly by the tort liability system. The purpose of protection is to make up for the impairment of personality interests caused by the infringement, and the relief shows the liability mode of "apology" and "restoration of reputation", reflecting the characteristics of spiritual compensation. In this context, although commercial legal person can also be protected by the "personality right of legal person", it also produces the situation that the protection of personality right of legal person, such as the right of reputation and name, lacks practical significance. Different from ordinary natural persons, such personality rights of businessmen represent not the interests of personality, but the economic benefits brought by the expression of personality rights, and have the dual significance of personality rights and property rights. The impairment of goodwill caused by the infringement of the personality right of the business subject is not enough to make up for the damage suffered by the business subject and is not suitable for protecting the rights and interests of the business subject.

At present, China's civil law and commercial law are the relationship between general law and special law. From the perspective of structural features, the protection mode of civil law is relatively single and static, while that of commercial law is "dynamic". In terms of value orientation, the civil law attaches great importance to fairness, authenticity of meaning expression and consideration of the overall social justice order. Commercial law attaches importance to the protection of the appearance of rights. In order to balance the interests of multiple business subjects, it is impossible and unnecessary to sacrifice the safety of commercial transactions for the sake of individual fairness.

Under the framework of civil law as a general law, commercial law is bound to abide by the basic principles of civil law, and the conflicts of value and concept between the two are numerous. Therefore, the establishment of commercial law thinking is very necessary for commercial judicial practice. First of all, it is necessary to pay attention to the protection of transaction and circulation, and attach importance to rights and external responsibilities. The absolute "fairness" principle should not be taken as the method to judge the effectiveness of commercial ACTS, and respect the autonomy of the will of businessmen. Secondly, different basic concepts and effects of civil and commercial affairs are distinguished, such as civil agency and commercial agency, civil prescription and commercial prescription, so as to ensure the accurate application of commercial law. Finally, in the specific judicial operation, the commercial judicial thinking of judges should be trained, so that the commercial judicial practice can be implemented in each specific case.

Commercial trial relies on the perfect guidance of commercial laws and regulations. Under the premise that commercial thinking is recognized, it is necessary to refine commercial laws and regulations and clarify the adjustment of commercial laws in legislation. Commercial legislation pays attention to the diversity and variability of the market, considers the various demands of commercial subjects, and makes technical specifications as detailed as possible, so as to provide sufficient trial basis for judicial judges and avoid the confusion of the law that causes the judges' dilemma. In addition, due to the lag of legislation, it is difficult to adapt to the changeable development of commercial society. Therefore, it is necessary to recognize commercial custom as the source of law by law, so as to have legal basis for judgment when legal blank and civil custom cannot reasonably apply commercial cases.

All in all, according to the essence of the function and value orientation of civil law and commercial law, civil and commercial union legislation system has been difficult to solve business problems in reality, the necessity of the commercial law thinking in commercial practice to use growing, so the breakthrough of the civil law logic, grasp the commercial thinking, to guide the commercial trial need to be on the agenda, provide legal force for China's economic and social development.

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