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从民法和商法的关系到《商事通则》的制定及怎样制定,一直是学界争论的热点。本文对这些问题的讨论基于商事活动的事实,即《商事通则》是怎样被事实所需求、以及要制定的《商事通则》应该满足事实的需要并在一定程度上超越事实,以达到法律规范与事实的相恰互适。从事实出发,我们得出的结论是《商事通则》的制定是必然的,它的制定过程则应遵守以外源为主、突出强调本土化的路径,其体系应避免追求大而全的模式。
From the relationship between civil law and commercial law to the formulation of the “General Rules of Commerce” and how to formulate it, it has always been a hot issue in academic circles. This article discusses these issues based on the fact that commercial activities, namely, “General Principles of Commerce” is how to be de facto required, and “General Rules of Commerce” should be developed to meet the needs of the facts and to some extent beyond the facts in order to achieve legal norms and The facts are in perfect harmony. From the facts, we come to the conclusion that the establishment of the “General Rules of Commerce” is inevitable. Its formulation process should follow the path of focusing on exogenous sources and emphasizing localization. Its system should avoid pursuing a comprehensive pattern.