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Wu Dongxu，bet365 app2021 master’s degree student，Law (Law)

Abstract:Amendments to the Presumption of Guarantee Rules in the Civil Code，Putting the legal application of the commercial guarantee system into a contradictory situation，It also reflects the importance of formulating general commercial rules。General commercial rules are to improve our country’s commercial legal system、Important normative basis for promoting the prosperity and development of commercial activities。But the Civil Code does not take into account the particularity of commercial regulations，This also further reduces the living space of general commercial rules。In the post-Civil Code era，Legislators urgently need to rationalize the legislative concepts in the field of civil and commercial law，Be prepared for the incorporation of general commercial rules into law。

Keywords:General Commercial Rules Civil Code Guarantee System

一、Contradictory situations in the application of laws in commercial activities—taking commercial guarantee as an example

(1) Conflict between the amendments to the Civil Code and the application of commercial guarantees

The "Civil Code" systematically integrates existing separate civil laws，The outdated provisions in the original separate civil laws have also been modified。Among them，In the Civil Code·Guarantee Contract Part of Contract Series，The legislator modified the previous provision in the Contract Law that "if no guarantee method is agreed upon, it is presumed to be a joint and several liability guarantee" to "it is presumed to be a general guarantee"。modified，The debtor who provides “personal insurance” in civil activities does not agree on the guarantee method，No need to suffer the risk of joint and several liability。Considering that ordinary people do not know much about the distinction between the two legal guarantees，What is agreed in the contract may not necessarily be recognized as a general guarantee，In law, the guarantee method defaults to a general guarantee so that the debtor has the right to sue first，This is an approach that is consistent with the logic of normal civil interactions。

However, this change puts commercial guarantee behavior in an embarrassing situation。This provision means，Under the current civil and commercial legal system in China，If the commercial entity does not agree on the form of guarantee during commercial activities，Guarantee responsibilities also need to be implemented in accordance with general guarantees。In this way，When one party has performed a commercial contract but the other party fails to perform as agreed，Unable to request the debtor to bear joint and several liability at the first time，But it needs to go through the long process of filing a lawsuit or arbitration against the guarantor and executing the entire property against the guarantor but still cannot pay off the debt，Only before the debtor can claim that the debtor should continue to bear the remaining liability。This is related to the profitability of commercial activities、The need for quickness creates a conflict。

(2) The contradiction in the application of commercial guarantee rules reflects the differences in civil and commercial laws

It does not matter whether the rule of presumption of general warranty is accepted by the specific parties，Only this provision reflects the spirit of civil law to prevent one party from bearing excessive liability，There is a discrepancy with the purpose of commercial activities。Business activities are mainly for profit。Based on this characteristic，Business entities tend to pursue reasonable sharing of risks。From this，Commercial rules tend to ensure that the responsible party better assumes commercial responsibilities according to the agreement through the joint and several liability system，Avoid undue losses of the party that observes the contract。Driven by this characteristic，Business law will also pursue professionalism、Easy and fast、Appearanceism、Strict liability and other spiritual rules protect the realization of the bet365 live casino and sports bettingprofit-making purpose of commercial law activities。

And many typical rules of commercial law (mainstream foreign legislative cases) spawned by this profit-making characteristic conflict with the typical rules of civil law to a considerable extent。For example，The above commercial guarantee rules use joint and several liability guarantee as the default method，It is designed out of consideration of professionalism and risk sharing of business entities。Because the business entity has been engaged in trading activities for a long time，Understand the different forms of responsibility，The makers of commercial rules do not have to worry about unduly increasing the liability of one party in commercial activities。On this basis，For the need of risk sharing and control，Commercial rules often use joint and several liability as the default form of liability。But in the field of civil law，Based on the independence of responsibility and the non-professional nature of civil subjects，Civil law does not use joint and several liability as the default form of liability。

Such examples of differences in civil and commercial rules exist in large numbers in the world of civil and commercial law。However, judging from the provisions of warranty liability，The Civil Code does not pay enough attention to this unique nature of commercial activities，Therefore, there are no separate commercial guarantee rules。The lack of commercial guarantee rules，It is the tip of the iceberg that lacks general commercial rules in the field of civil and commercial law in my country。It is precisely because legislators did not deliberately leave room for general commercial rules in the process of formulating the Civil Code，The relevant provisions of the guarantee system do not make a clear distinction between civil guarantees and commercial guarantees，Thus resulting in this lack。The dilemma in legal application caused by this lack，Also highlights the necessity of general commercial rules。

2. The necessity and practical dilemma of formulating general commercial rules

(1) The necessity of formulating general commercial rules

1.A single commercial law is not enough to constitute a complete system of commercial legislation

Developed from commercial transaction habits，Commercial activities have gradually formed unique rules that are different from civil activities。Part of these rules，In our country, it is currently mainly established through separate commercial laws such as the Insurance Law, Maritime Law, and Negotiable Instruments Law。But compared to the single-line method，The overarching significance carried by basic general rules is more important to the construction of the legal system。The commercial legal system lacks general commercial rules，There is a lack of basic principles and general provisions that govern the separate laws of various ministries。Several single-line methods "each does his own thing"，It is difficult to coordinate with each other。

2. Advantages of general commercial rules compared to separate commercial laws

Compared with the numerous separate commercial laws，General commercial rules can lay a systematic and complete institutional foundation for the development of commercial activities，Filling the legal loopholes that cannot be covered by "each one's own business" in the Commercial Law。

First，Formulation of general commercial rules，Able to provide a regulatory environment for the realization of basic principles of commercial activities。By establishing general commercial rules，The basic principles that business entities believe in in commercial activities can be included in statutory law in the form of legal provisions，Instead of just wandering in the works of experts and scholars。From this，The basic principles of commercial activities can be used throughout the commercial legal system，Becomes the value standard pursued by the general and special rules in the system。According to the relationship between legal rules and legal principles，Under the circumstances that my country’s current commercial legal system is still imperfect，The written basic principles of commercial law can guide commercial behavior、Fill the loopholes in the rules、Function as a basis for discretionary norms。

Secondly，Commercial Contract、Formulation of general commercial rules such as commercial guarantees，Be able to relatively liberate the legal application of commercial activities from civil laws。Although various separate commercial laws have improved insurance in specific commercial fields、Various small rule systems such as bills，But it cannot provide the general rules resources required for commercial activities outside each specific field。At the bet365 live online casinosame time，In view of the unique differences between commercial activities and civil activities during the development process，In the civil and commercial overlapping system, rules designed based on the characteristics of civil activities are applied uniformly，It will hinder the smooth progress of commercial activities，Ultimately affecting the normal development of commercial exchanges。Still taking the commercial guarantee system as an example。Whether it is the distinction between civil and commercial guarantees in the Civil Code，It should still be separately stipulated in the "General Principles of Commercial Law" advocated by some scholars，As long as there are rules specific to the commercial guarantee system，It can solve the conflicting situation in which commercial guarantees are forced to apply the civil guarantee presumption rules。

Finally，Formulation of general commercial rules，Can improve the integrity of the commercial legal system。In the absence of general commercial rules，The commercial legal system needs to be composed of the normative resources provided by the Civil Code and separate commercial laws。Although there are also rules applicable to commercial activities such as indirect agency in the Civil Code，But looking at it at this stage，Because the Civil Code fails to reflect the special arrangements of commercial law regulations，It still cannot provide sufficient commercial regulatory resources for commercial activities。Therefore，The current group of commercial legal rules composed of the Civil Code and separate commercial laws can hardly be called a "system"。General commercial rules can fill the gaps in higher-level systems that cannot be touched by separate commercial laws，Easing the fragmentation of the commercial legal system caused by the proliferation of separate commercial laws。

3.The professionalism of commercial entities cannot negate the necessity of the existence of general commercial rules

The professionalism of commercial entities is not an appropriate reason to refuse to formulate general commercial rules。Admittedly，Business subjects who frequently engage in commercial activities have a deeper understanding of legal provisions than civil subjects。For example，Compared to civil subjects，Commercial entities often have a clear understanding of the differences between the two guarantee methods，Also tend to proactively agree on guarantee methods。But if this empirical fact alone denies the legal significance of the existence of independent commercial guarantee clauses，It is a kind of thinking that uses factual judgment to negate legal value judgment。The law needs to be applied to specific facts，But it exists relatively independently of social facts。The significance of this relative independence，It is based on the premise of conforming to the general laws and mainstream spirit of a specific field，Make appropriate adjustments to the communication activities in this field without losing boundaries。

(2) The promulgation of the Civil Code and the re-compression of the living space of general commercial rules

The legislative idea of ​​integrating civil and commercial affairs determines that there is no possibility of formulating a separate commercial code。At the same time，Because commercial law itself is difficult to achieve self-consistency，In many systems, it is necessary to seek relevant normative resources from the Civil Code。At this time，The importance of stipulating general commercial rules in the Civil Code is self-evident。After the “Decision” of the Fourth Plenary Session of the 18th CPC Central Committee proposed to “formulate a civil code”，The academic discussion on formulating general commercial rules in the Civil Code has reached its peak。This phenomenon is reflected from the side，In the opinion of quite a few scholars，Influenced by the legislative orientation of civil and commercial integration in my country，The Civil Code is the better choice for general commercial rules to settle down。

However, the promulgation of the Civil Code broke the above-mentioned ideas of scholars。Because the "Civil Code" does not implement the legislative idea of ​​​​relative distinction between civil and commercial affairs，Legislators tend to only establish civil systems and ignore commercial systems among various systems that overlap civil and commercial affairs，No special space is left for general commercial rules。This means that in the absence of an independent commercial code，Unless a "General Principles of Commercial Law" is formulated，Otherwise the formulation of general commercial rules will become more difficult。As far as the formulation of "General Principles of Commercial Law" is concerned，Currently mainstream scholars who are deeply involved in legislative Bet365 lotto reviewproposals have a negative attitude towards it，This will also have an important impact on the attitude of legislators。From here，The remaining theory for formulating general commercial rules may also become minimal。

The promulgation of the "Civil Code" shows the legislator's avoidance of general commercial rules，This also means that the living space of general commercial rules has been further severely compressed。

3. Prerequisites and possible paths for formulating general commercial rules

(1) Premise: Legislative concepts in the field of civil and commercial law urgently need to be further streamlined

The above-mentioned attitude of legislators reflected in the Civil Code，This is another example that the legislative concept in the field of civil and commercial law cannot meet the needs of reality for a long time。The mainstream domestic view is that，Commercial law is a special law of civil law。From the perspective of the development process of commercial law emerging from civil law，Such a conclusion is still theoretically valid。However, this theory has had the following impact on legislative and judicial activities: when the legal system was not yet complete，Civil law as general law，Its enactment takes precedence over commercial law；When no commercial law regulations are applicable，Applicable civil law regulations。Take the agency system as an example，Both direct and indirect agents are an indispensable and important part of the agency system，And indirect agency is a common agency method in the commercial field。But the direct agency system is stipulated in the Civil Code·General Provisions》，The indirect agency system is stipulated in the Civil Code·Contract Edition》。Differences in system status，Reflecting the different understanding of legislators on the importance of civil and commercial activities。Under the influence of this legislative concept of "people are high and business is low"，When the civil guarantee system is placed in the Civil Code·Contract Edition》Time，The commercial guarantee system has no place for a lower position。

The formulation of general commercial rules seems to have been hindered by the above legislative concepts。The author does not deny the rationality of the integration of civil society and business，Nor does it deny the status of commercial law as a special civil law。Only in the current so-called civil and commercial integration legislation，“Business” often becomes an attachment to “people”，Sometimes they are even directly annexed by the "people"。Take the commercial guarantee system as an example。The old "Contract Law" presumption of joint liability guarantee does not apply to general civil activities，Correction is necessary。But under the influence of the legislative concept of "people are high and business is low"，The presumption rules suitable for civil guarantees directly replace the original regulations，The legal application of commercial guarantee activities has not been taken into consideration by legislators。Visible，The formulation of general commercial rules is the core issue to be dealt with in the civil and commercial legislative model，In the process of formulating our country’s civil legal norms, they have been repeatedly avoided。The author thinks，Only when the concept of integrating civil society and business is truly implemented into legislative practice，Consider some parallel commercial regulations when constructing civil legal regulations，Only general commercial rules can survive。

(2) Possible ways to formulate general commercial regulations

Present，There are two ways to formulate general commercial regulations: the "Civil Code" and the "General Principles of Commercial Law"。But each of the two paths has its own practical difficulties。

After the promulgation of the Civil Code，The prospect of dichotomous civil and commercial legislation in various overlapping systems from the Civil Code has become more difficult。For the need of legal stability，In addition, the codification attribute of the Civil Code itself，At present, it is extremely unlikely that the provisions of the Civil Code will be revised in batches to include general commercial rules。However, considering that general commercial rules themselves are difficult to form similar to the Civil Code·Complete system of General Principles，Incorporate the basic principles of commercial activities such as “recognition of commercial customs” into the General Provisions，A limited number of general commercial rules are then attached to the corresponding civil rules and differentiated provisions are made，This is a more reasonable approach at this stage。This also means，The formulation of general commercial rules requires a considerable period of waiting。

After the Civil Code Best slot on Bet365excluded general commercial rules，The possibility of formulating an independent "General Principles of Commercial Law" is gradually increasing。But as mentioned before，The author thinks，The limited number of general commercial rules is not enough to support the scale of a complete "General Principles"。Formulate another high-quality "General Principles of Commercial Law"，Not only will there be basic provisions that overlap with the Civil Code due to the improvement of the independent rule system，The time and energy required are no less than waiting for the next revision of the Civil Code。Therefore，In the Civil Code such as guarantee、Within the scope of systems where the civil and commercial fields such as agency overlap，Distinguish between civil and commercial systems and stipulate them separately，To better meet the needs of commercial activities，It is still an issue that legislators need to address in the era of the Civil Code。

4. Conclusion

"The rule of law is the best business environment" is clearly stated，A legal system that can provide stable transaction expectations is a good institutional foundation for commercial entities to conduct transactions，But it is easy for people to ignore its inner meaning。From the analysis of this article，There is no Civil Code or other separate commercial laws，The rule of law system can create a good environment for business activities。Only the specific legal system in the "rule of law" system meets the actual needs of commercial activities，Only the "best" business environment can be produced。At this stage，Accelerate the formulation of general commercial rules such as commercial guarantee systems，Only in this way can we provide good standardized resources for the optimization of the business environment，Eliminate institutional obstacles to the development of commercial activities。

References

[1]Li Jianwei: "The General Provisions of Civil Law Set the Limits of Commercial Law Norms and Their Theoretical Interpretation"，"Chinese Legal Science" Issue 4, 2016。

[2]Wang Liming: "Formulation of the General Provisions of my country's Civil Code under the Integration of Civil and Commercial Affairs"，"Legal and Business Research" Issue 4, 2015。

[3] Liu Kaixiang: "Continuous Cutting，Returning reason to chaos: Rethinking the relationship between civil law and commercial law in the formulation of the Civil Code》，"Global Legal Review" Issue 6, 2016。

[4] Cui Jianyuan: "Several pairs of relationships must be corrected when compiling the Civil Code"，"Tsinghua Law" 2016 Issue 8。

[5]Xu Zhongyuan、Yan Keyun: "The Uniqueness of Commercial Law and the Compilation of General Provisions of the Civil Code"，"Chinese Social Sciences" Issue 12, 2016。

[6] Zhao Xudong: "Compilation of Civil Code and Commercial Legislation"，"Chinese Legal Science" Issue 4, 2016，Page 42。

[7]Wang Jianwen: "Defects of China's Current Commercial Law System and Its Remedy Ideas"，"Nanjing Social Sciences" Issue 3, 2009。

This article is a selection of outstanding articles in the first issue of "Fayuan Argument" essay competition，Due to space limitation，Comments omitted，Presented as reference，Please see [Attachment] for the original text。The content of the article represents only the author’s personal opinion，For readers to read and review。

Text/Wu Dongxu

Proofreading/Yang Zhen