民法典背景下公司法总则修改的路径研究

The Civil Code of the People's Republic of China shows many characteristics of commercial law. On the one hand, the Civil Code adopts the legislative style of civil and commercial integration. It not only conforms to the development of social practice, but also follows the legislative tradition formed by The General Principles of the Civil Law since the founding of New China. On the other hand, China has adopted a two-step legislative process in compiling the Civil Code. The wisdom achievements of the development of commercial law were absorbed from drafting the General Rules of the Civil Law to the Civil Code, and the commercial law represented by the Company Law of the People's Republic of China reflects the changes in social concepts triggered by the market economy, which has also became an important source of civil law reform. The integration of the Company Law and the Civil Code is mainly reflected in the general chapter of the Company Law and the legal person chapter of the Civil Code, and the general provisions of legal person in the Company Law are absorbed in the legal person chapter section I of the general provisions of the Civil Code. The legal person chapter section II of the general provisions of the Civil Code is based on typical profit-making legal person system of the Company Law. At present, the revision of the Company Law has been put on the agenda, which needs to face the following problems. First of all, the compilation of the Civil Code draws heavily on the basic provisions of the Company Law, so we need to revise the general provisions of the Company Law that are almost hollowed out by the general provisions of the Civil Code, and we must pay more attention to the compilation logic and legislative techniques adopted by the Civil Code to deal with the overlapping provisions. Secondly, it is necessary to properly arrange the clauses in the general principles of the Company Law that were eliminated when being purified by the Civil Code. Although these clauses can no longer exist as the framework of departmental law, the company law as a special commercial law still needs to be different from the general provisions of civil law. As mentioned above, from the logical perspectives and empirical point of the Civil Code compilation, we can not only predict the revision space and remaining stock of the general provisions of the Company Law, but also explore the development direction of the Company Law. In dealing with repeated provisions, we should choose to delete them, adhere to the integrity and uniqueness of the Company Law system, return to the essence and characteristics of the company law as a special commercial law, increases the internal freedom of the company organization on the basis of autonomy of private law, improve the company system designed with risk sharing and risk prevention as technology, clarify the trial thinking that the company law is different from civil law. Then, we build the general principles with modern company philosophy to guide the company law through three dimensions, so as to create a high-quality business environment. At the same time, the theoretical circle put forward a variety of views on the revision of the general provisions of the company law. Among the many views, the mainstream holds that the formulation of General Principles of Commercial Law is more suitable to be the general provision of integrating commercial law. On the one hand, General Principles of Commercial Law brings less legislative cost, On the other hand, it will not overturn the formal legislative system of integrating civil and commercial legislation in China. However, there are still many disadvantages in the formulation of General Principles of Commercial Law. From the perspective of legislation and application, there are still problems to be discussed about the internal differences and relations between commercial law and civil law.