Relations of Merchants to Government: An Antecedent of China’s Commercial Law System(Abstract)
2016/4/18 11:03:03 点击率[535] 评论[0]
【法宝引证码】
    【学科类别】商法
    【出处】姜朋:《官商关系:中国商法前论》,法律出版社2016年3月版
    【写作时间】2016年
    【中文关键字】官商关系;中国商法前论
    【全文】

       In our history, business activities have been controlled and belittled by the dominant ideology for a long time, that is, the merchants in ancient China were situated in the lower end of the social order after the gentry, the farmer and the craftsman. Their interests were not formallyrepresented in the central government at the time when China was an agriculture society. The fact that government was prior tomerchants both in birth and in status determined the subtle interactive relationship between them.

       To control merchants strongly and use them better, government made rules almost in every aspect, such as the qualifications to business, business areas (domestically or abroad), commercial activities (wholesale, retail and agency), even trade partners (brokerage houses, official merchants, or ordinarypeople), the dealing price and the incorporation of merchant guilds. To increase the revenue, the government tried not only to control the business but to share profits with merchants. Sometimes, government even engaged in business activity itself and competed with individual merchants, which were regulated by it.

       The expediency or opportunistic business policy shaped the merchants with opportunistic characteristics. Under the shadow of government, sometimes merchants dodged the government, and sometimes catered to it by becoming a member of the bureaucracy. In the latter, it was difficult to distinguish the status of merchant from that of mandarin. The merchants could not become an independent social power; their customs were also affected by the government's ideology.

       Although the goals of merchants and government may have overlapped in theory, their orders of priorities were different. Merchants sought profits first, and only secondarily the social stability that permitted them to operate unhindered. The government pursued social harmony and order, meanwhile maximized the revenue that allowed it to fulfill its even more complex and expensive tasks.

       In Europe, the urban merchants (bourgeois) financed the autocratic ruler and received political patronage from them in exchange. In this context, of mutual profit and mutual assistance, the system of absolutism rule generally took shape. However, in China, controlled by the government, the merchants only acted as a supporting role. They could not get the autonomy from the government just as their western contemporary had done. And it was only a dream that the merchant customs could come into being without the interference of government.

       From the end of 19th century and the beginning of 20thcentury, China began to transplant (or borrow) western legal system in order to get rid of the foreign consular jurisdiction. That meant the modern commercial law of China was enacted by the government at first. At the same time, with the dream of making the country wealthy and strong, the state-owned enterprises took place of the private ones at last.

       The government-merchant relationship was, is, and will be an important sector in the formation of commercial law. However, in China, the transplantation (reception or borrowing) of western commercial law could neither cultivate the autonomous spirit of merchants, nor balance the government-merchant relations.

    【作者简介】
    姜朋,法学博士,清华大学经济管理学院副教授。著有《官商关系:中国商法前论》(法律出版社2016年3月版。2008年5月的初版原题为《官商关系:中国商业法制的一个前置话题》)。

    本网站文章仅代表作者个人观点,不代表本网站的观点与看法。
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