Social Sciences in China (Chinese Edition)

No.12, 2018

 

Lacunae in the Special Law Attributes of Commercial Law and Rules for Remediation

(Abstract)

 

Qian Yulin

 

The relationship between the applicability of civil and commercial law has traditionally been handled in accordance with the legal principle of the “priority of special law.” Commercial law has priority application when special provisions are involved, but the general provisions of civil law apply where no special commercial law provisions exist. However, this practice ignores cases in which commercial law has no special provisions. It is necessary to distinguish between situations where “no special provisions are required” and “special provisions should exist but do not.” The rules for handling the two situations are totally different. Where commercial law does not need special provisions, the general provisions of the civil law should be applied; but where commercial law ought to have special provisions but none exist, that constitutes a lacuna that should be remedied through the appropriate means. The norms formed by remedying gaps in commercial law still essentially fall into the category of special commercial law. If the general provisions of civil law are applied indiscriminately whenever commercial law lacks special provisions, this will undoubtedly obliterate the special law character of the gaps in commercial law, resulting in a lack of normative purposiveness and legitimacy for specific items. The fact that the civil law drawn up in China integrates civil and commercial law has partially solved the problem of rules for special commercial law, but lacunae in commercial law are still unavoidable, and the clause on the application of law introduced under the general rules of civil law lacks the institutional supply that could remedy these lacunae. Legal interpretations and improved rules for remedying such gaps should be used to harmonize the general rules of civil law and remedy lacunae in commercial law. The contemporary mission of commercial law is to sort out information on commercial legislation and jurisprudence; to provide insights into the interpretation of commercial law and the cognition of customary commercial law; explore the principles of commercial law; and form a recognized body of legal principles for commercial affairs.