綜論大清1906年《破產(chǎn)律》
發(fā)布時(shí)間：2018-09-13 12:24
【摘要】： 19世紀(jì)末20世紀(jì)初的中國(guó),內(nèi)憂外患,清政府為維護(hù)統(tǒng)治,力圖學(xué)習(xí)西方,“變法自強(qiáng)”,隨著中國(guó)近代“重商主義”思潮的興起,各種力量也呼吁政府制定相關(guān)的法律來(lái)規(guī)制社會(huì)的民商事行為,以維護(hù)國(guó)家利權(quán),保護(hù)商民利益,打擊不法行為。而近代中國(guó)在與西方列強(qiáng)在華利益斗爭(zhēng)時(shí)也屢遭欺侮,也迫切需要制定相應(yīng)的商事法律來(lái)保護(hù)自身利益,以上的種種原因使得清政府不得不移植西方的商事法律來(lái)制定本國(guó)的律法,由此近代第一次民商事立法熱潮開(kāi)始了。晚清的這次商事立法由于大都照搬西方,尤其是日德等國(guó),所以不可避免是雖然近代世界先進(jìn)的商法思想和商法語(yǔ)言都被引入,卻與中國(guó)傳統(tǒng)的商事習(xí)慣和思想產(chǎn)生了激烈沖突,由此必然遭到社會(huì)各界普遍的抵觸和懷疑,尤其是中國(guó)最廣大的商民,由于對(duì)法律知識(shí)知之甚少,習(xí)慣于用道德和傳統(tǒng)來(lái)解決商事問(wèn)題,對(duì)新的法律的條文與思想與傳統(tǒng)習(xí)慣不同的地方非常敏感,提出了很多批評(píng)意見(jiàn),甚至激烈地要求廢除某些條文。而大清《破產(chǎn)律》正是在這種背景下產(chǎn)生的,清政府制定它的目的實(shí)際上一開(kāi)始就是為了保商保民,嚴(yán)厲打擊民眾所反應(yīng)強(qiáng)烈的愈演愈烈的“倒騙“行為,它的條文大都照抄日本的破產(chǎn)法,雖然在該律中也包含了符合和滿足中國(guó)傳統(tǒng)社會(huì)現(xiàn)狀的一些商事習(xí)慣,比如選舉一名公正之董事來(lái)清算和處理破產(chǎn)程序,并尊重當(dāng)時(shí)社會(huì)商會(huì)在整個(gè)行業(yè)中的權(quán)威地位,在整部法律中突出商會(huì)的地位,并將其作為破產(chǎn)程序的主導(dǎo)者,這些都不失為這部《破產(chǎn)律》的亮點(diǎn)。盡管如此,這部法律更多的是和中國(guó)的傳統(tǒng)思想習(xí)慣沖突太大,遭到激烈的反對(duì)和抵觸,并最終被廢止。而這部破產(chǎn)律正是因?yàn)樵缭缌鳟a(chǎn),對(duì)社會(huì)的影響并不是很大,所留痕跡也不是很深,歷來(lái)不被人重視,研究者甚少,其在近代中國(guó)商事立法中的地位和作用一直被忽視,由此它對(duì)研究我國(guó)近代法制環(huán)境和東西方法律思想之激烈沖突的作用以及引申的反映近代中國(guó)商事立法之艱難過(guò)程的學(xué)術(shù)地位也就被輕視,這不論對(duì)近代商法史還是商法的研究都是很大的損失。 本文就是要以大清《破產(chǎn)律》為中心,深入探討中國(guó)近代商事立法之環(huán)境和過(guò)程,并進(jìn)而指出晚清時(shí)代的中國(guó)東西方法律思想的激烈碰撞導(dǎo)致近代中國(guó)司法進(jìn)程舉步為艱,以期對(duì)我國(guó)的法律移植和商事立法提供寶貴的借鑒意義。本文共分五章,第一章主要介紹《破產(chǎn)律》誕生的時(shí)代和社會(huì)背景,重點(diǎn)介紹處于19世紀(jì)末20世紀(jì)初的晚清的社會(huì)環(huán)境和急需民商事立法的現(xiàn)狀,并簡(jiǎn)要地說(shuō)明了《破產(chǎn)律》的立法過(guò)程和大概內(nèi)容。第二章主要介紹《破產(chǎn)律》的缺陷以及商民對(duì)它的激烈批評(píng),從中看出晚清商法大致相同的立法缺陷。第三章就進(jìn)一步指出《破產(chǎn)律》的一些亮點(diǎn)和進(jìn)步,所謂瑕不掩瑜,法律移植也有其優(yōu)點(diǎn)。第四章就從《破產(chǎn)律》的立法進(jìn)程和社會(huì)反應(yīng)進(jìn)一步分析19世紀(jì)末20世紀(jì)初中國(guó)的法制環(huán)境,并為下一章的總結(jié)和提煉打下基礎(chǔ)。最后一章旨在總結(jié)全文的分析,進(jìn)而指出近代中國(guó)商事立法之艱難過(guò)程,并從中取得現(xiàn)實(shí)的借鑒和參考意義。
[Abstract]:At the end of the 19th century and the beginning of the 20th century, in order to safeguard the rule of China, the Qing government tried to learn from the West, and "reform and self-improvement". With the rise of the trend of "mercantilism" in modern China, various forces also appealed to the government to formulate relevant laws to regulate social civil and commercial acts, in order to safeguard the interests of the state, protect the interests of merchants and citizens, and combat illegal practices. As a result, the Qing government had to transplant the western commercial laws to formulate its own laws. This was the first upsurge of civil and commercial legislation in modern times. Because most of the sub-commercial legislations copy the West, especially Japan and Germany, it is inevitable that although the advanced commercial law thoughts and the commercial language in the modern world have been introduced, they have a fierce conflict with the traditional Chinese commercial customs and ideas, which will inevitably be confronted with widespread conflicts and doubts from all walks of life, especially the broadest Chinese business. The people, because they know little about the law, are accustomed to using morality and tradition to solve commercial problems. They are very sensitive to the provisions and ideas of the new law which are different from the traditional customs. They put forward many criticisms and even demanded the abolition of certain provisions. It was against this background that the Bankruptcy Law of the Qing Dynasty came into being. In fact, its purpose was to protect the business and protect the people from the outset, and severely crack down on the increasingly fierce "swindling" that the public responded to. Its provisions mostly copy the bankruptcy law of Japan, although it also contains some commercial habits that conform to and satisfy the current situation of Chinese traditional society, such as the election of a just director. Clearing up and handling bankruptcy proceedings, respecting the authority of the Chamber of Commerce in the industry at that time, giving prominence to the position of the Chamber of Commerce in the whole law, and taking it as the leader of the bankruptcy proceedings are all highlights of the Bankruptcy Law. But this bankruptcy law is precisely because of the early miscarriage, the impact on society is not very great, leaving traces is not very deep, has been ignored, few researchers, its position and role in modern China's commercial legislation has been neglected, thus its study of China's modern legal environment. The role of the fierce conflict between Eastern and Western legal ideas and the extended academic position reflecting the difficult process of commercial legislation in modern China are also underestimated, which is a great loss to both the history of modern commercial law and the study of commercial law.
This article is to take the Bankruptcy Law of the Qing Dynasty as the center to probe into the environment and process of Chinese modern commercial legislation, and then point out that the collision of Chinese Eastern and western legal thoughts in the late Qing Dynasty led to the difficulty of the judicial process in modern China, in order to provide valuable reference for the legal transplantation and commercial legislation of our country. The first chapter mainly introduces the era and social background of the birth of the Bankruptcy Law, especially the social environment of the late Qing Dynasty at the end of the 19th century and the beginning of the 20th century and the current situation of the urgent need for civil and commercial legislation, and briefly explains the legislative process and general content of the Bankruptcy Law. Chapter 3 further points out some bright points and progress of the Bankruptcy Law. The so-called "no hidden flaws" and the transplantation of the law also have its advantages. Chapter 4 further analyzes the legal environment of China in the late 19th century and early 20th century from the legislative process and social reaction of the Bankruptcy Law. The last chapter aims to summarize the analysis of the full text, and then point out the difficult process of modern China's commercial legislation, and obtain practical reference and significance.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D929;D922.291.92
本文編號(hào)：2241169
[Abstract]:At the end of the 19th century and the beginning of the 20th century, in order to safeguard the rule of China, the Qing government tried to learn from the West, and "reform and self-improvement". With the rise of the trend of "mercantilism" in modern China, various forces also appealed to the government to formulate relevant laws to regulate social civil and commercial acts, in order to safeguard the interests of the state, protect the interests of merchants and citizens, and combat illegal practices. As a result, the Qing government had to transplant the western commercial laws to formulate its own laws. This was the first upsurge of civil and commercial legislation in modern times. Because most of the sub-commercial legislations copy the West, especially Japan and Germany, it is inevitable that although the advanced commercial law thoughts and the commercial language in the modern world have been introduced, they have a fierce conflict with the traditional Chinese commercial customs and ideas, which will inevitably be confronted with widespread conflicts and doubts from all walks of life, especially the broadest Chinese business. The people, because they know little about the law, are accustomed to using morality and tradition to solve commercial problems. They are very sensitive to the provisions and ideas of the new law which are different from the traditional customs. They put forward many criticisms and even demanded the abolition of certain provisions. It was against this background that the Bankruptcy Law of the Qing Dynasty came into being. In fact, its purpose was to protect the business and protect the people from the outset, and severely crack down on the increasingly fierce "swindling" that the public responded to. Its provisions mostly copy the bankruptcy law of Japan, although it also contains some commercial habits that conform to and satisfy the current situation of Chinese traditional society, such as the election of a just director. Clearing up and handling bankruptcy proceedings, respecting the authority of the Chamber of Commerce in the industry at that time, giving prominence to the position of the Chamber of Commerce in the whole law, and taking it as the leader of the bankruptcy proceedings are all highlights of the Bankruptcy Law. But this bankruptcy law is precisely because of the early miscarriage, the impact on society is not very great, leaving traces is not very deep, has been ignored, few researchers, its position and role in modern China's commercial legislation has been neglected, thus its study of China's modern legal environment. The role of the fierce conflict between Eastern and Western legal ideas and the extended academic position reflecting the difficult process of commercial legislation in modern China are also underestimated, which is a great loss to both the history of modern commercial law and the study of commercial law.
This article is to take the Bankruptcy Law of the Qing Dynasty as the center to probe into the environment and process of Chinese modern commercial legislation, and then point out that the collision of Chinese Eastern and western legal thoughts in the late Qing Dynasty led to the difficulty of the judicial process in modern China, in order to provide valuable reference for the legal transplantation and commercial legislation of our country. The first chapter mainly introduces the era and social background of the birth of the Bankruptcy Law, especially the social environment of the late Qing Dynasty at the end of the 19th century and the beginning of the 20th century and the current situation of the urgent need for civil and commercial legislation, and briefly explains the legislative process and general content of the Bankruptcy Law. Chapter 3 further points out some bright points and progress of the Bankruptcy Law. The so-called "no hidden flaws" and the transplantation of the law also have its advantages. Chapter 4 further analyzes the legal environment of China in the late 19th century and early 20th century from the legislative process and social reaction of the Bankruptcy Law. The last chapter aims to summarize the analysis of the full text, and then point out the difficult process of modern China's commercial legislation, and obtain practical reference and significance.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D929;D922.291.92
【引證文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 劉承濤;近代中國(guó)商會(huì)理案制度研究[D];華東政法大學(xué);2012年
，本文編號(hào)：2241169
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