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民商分立与民商合一的讨论自商法典制定就已存在,但民商分立还是民商合一与其说是立法技术和体制问题,不如说是法律的历史沿革造成的。本文认为中国自古就没有形成商人这一阶层,缺少商法形成的条件,所以中国宜采民商合一的立法例,商法是民法的特别法,适用民法的一般规定。
The discussion on the separation of civil and commercial businesses and the integration of civil and commercial businesses existed since the establishment of commercial codes. However, the separation of civil and commercial businesses or the integration of civil and commercial businesses are not so much the issue of legislative technical and institutional issues as they are caused by the historical evolution of the law. This paper argues that since ancient times China has not formed a class of businessmen and lacks the conditions for the formation of commercial law. Therefore, it is appropriate for China to adopt a legislative enactment which is a special law of civil law and applies the general provisions of civil law.