How Do I Earn a Commercial Law LLM?

Commercial law is a general term for legal norms regulating commercial relations between equal subjects. Commercial law is departmental law that is parallel to and complementary to civil law. Commercial law has the for-profit characteristics of adjusting behavior, and also has the principle of strict legality of commercial subjects. It mainly includes company law, insurance law, partnership law, maritime law, bankruptcy law, bill law, etc. ^[1]

commercial law

(One of the disciplines of law)

Right!

Business law is adjustment

The basic content of the good faith principle of commercial law

The principle of good faith is an "emperor clause" in modern civil and commercial law, and it has universal control over the fair conduct of civil and commercial activities. The principle of good faith originates from Roman law. In the good faith contract of Roman law, the debtor must not only comply with the terms of the contract, but more importantly, complete the payment stipulated in the contract in accordance with his inner faith. The so-called good faith is a moral rule formed in market economic activities. It requires people to pay attention to credit in market activities, keep their promises, be honest and not deceive, and pursue their own interests without prejudice to the interests of others and society. The principle of good faith sets an ethical standard for "honest businessmen" for all market participants. According to this principle, commercial entities should abide by credit and honesty when exercising their rights and fulfilling their obligations under private law. In detail: (1) Rights should be exercised in an honest and trustworthy manner. Commercial entities exercising property rights should respect the interests of the state, the collective and others, exercise rights in a good manner and obtain benefits, and must not abuse rights for the purpose of harming others. (2) The obligations shall be performed in good faith. As stipulated in the Bills Law, the issuance, acquisition, and transfer of bills must comply with the principle of good faith and have real trading relationships and debt and debt relationships; the Insurance Law stipulates that insurers should follow the principle of maximum integrity when entering into insurance contracts and be truthful about the important facts of the insurance subject Inform, etc. The principle of good faith is also a remedy for insufficient legal provisions and has strong flexibility. This flexibility principle gives judicial personnel certain discretion, so that when legal provisions are ambiguous or ambiguous, they proceed from the purpose of commercial law and reasonably handle commercial disputes based on the principle of good faith.

Function of the Good Faith Principle of Commercial Law

(I) The direct function of the principle of good faith

1. Direct functions for business entities

The principle of good faith in commercial law guides the trading activities of commercial entities. Commercial entities engaging in commercial activities shall conduct themselves in an honest and good faith state. They shall not engage in fraud, coercion, or abuse of rights, and shall perform necessary obligations not stipulated by laws or conventions. The principle of good faith in commercial law This function is, in short, the function of guiding business entities to exercise their rights and perform their obligations. Specifically, it is the obligation to expand the business entity and the obligation to limit the business entity. The obligation to expand a business entity refers to the addition of a certain obligation in accordance with the principle of good faith to comply with the legal concepts of fairness and justice, in addition to the legal or agreed obligations of a business entity, and the entity adds it. Non-contractual obligations are not based on statutes or conventions, but are based on the principle of good faith. If business entities consciously perform non-contractual obligations, they will be extended by their own obligations under the guidance of the principle of good faith; The commercial entity has an obligation, but the existence of this obligation runs counter to the legal concepts of fairness and justice, and all the parties then detract from it in accordance with the principle of good faith. For example, in the insurance contract, the insurer and the insurer agreed the insurance premium without seeing the insured object, and when they saw the insured object, they found that the insurance premium was too high. Upon the request of the insurer, the insurer refunded part of the insurance premium. The behavior of the insurer in returning insurance premiums is indeed the obligation of the insurer to limit the insured person under the guidance of the principle of good faith.

2. Direct functions on business behavior and law

Commercial entities engaged in commercial behavior often have disputes due to their different understandings of commercial behavior, so they resort to the courts, and the judge should explain in accordance with the principle of good faith, and must not refuse to do so without law. When there is a loophole in business conduct, the judge should also supplement it in accordance with the principle of good faith. Judges apply commercial law, which is not clear and clear. The checkmarks can be seated. Sometimes statutory rules are formulated more abstractly. Judges 'interpretation is required to facilitate application. Judges' interpretation must be subject to the principle of good faith to maintain fairness. justice. This is the explanatory function of the principle of good faith to commercial law. Market transactions are developing rapidly, and the scope involved is inexhaustible. Although commercial law is progressive and has many norms, there are still blind spots that have not been regulated by legislation. However, the dispute must be resolved. At this time, the judge should supplement the blind areas of the law in accordance with the principle of good faith to resolve the dispute. This is a supplementary function of the principle of good faith to commercial law.

(B) the ultimate function of the principle of good faith

1. Reduce transaction costs

Transaction costs are the core category of modern economics. Generally speaking, it refers to the operating costs of economic systems. Its scope is very wide, including the costs of measuring, defining and protecting property rights, the costs of entering into and executing contracts, the costs of monitoring and sanctioning breaches, the costs of discovering transaction objects and transaction prices, the cost of bargaining, and the maintenance of transaction order Cost, etc. Obviously, business entities can reduce these costs by complying with the principle of good faith. Taking the conclusion of a commercial contract as an example, the principle of good faith requires the business entity to state the quality and defects of the other party or other parties before entering into a contract. Contractual obligations. In this way, all parties are in a safer contracting condition, which naturally saves the cost of seeking a secure contracting environment and the cost of contracting fraud, thereby reducing the cost of transactions.

2.Ensure transaction security

The function of the principle of good faith in commercial law to ensure the security of transactions is mainly reflected in the principle of good faith acting on commercial subjects, commercial behavior or commercial law, and adjusting the interests between the parties to protect the security of transactions. Regarding the parties who want to obtain obviously unfair benefits by failing to perform their obligations of good faith or through loopholes in commercial behavior and commercial law, the aggrieved party can adjust it in accordance with the principle of good faith by requesting the referee, or adopt the principle of good faith to explain the commercial behavior of the other party Or commercial law to protect them from unnecessary damage. Through these methods, the principle of good faith can rule out the possibility of various disputes and accidents to the greatest extent, and provide the most secure trading environment for each party.

3. Promote transactions

The obligation of notification or notification refers to the obligation of one party to a transaction to notify or notify the other party of a matter that should be notified or notified. Such notifications or notifications include not only the notification and notification obligations agreed upon by the parties, but also the notification or notification obligations arising out of the principle of good faith if not agreed. Through notification or notification, the principle of good faith not only protects the counterparty of the transaction from unforeseen losses, but also makes the transaction relationship and the content of the transaction more certain. The principle of good faith requires business entities to engage in business conduct in a state of good faith and honesty, and not to defraud or engage in improper behavior, so that transactions can be confirmed. This function of the principle of good faith is often stipulated in the law. For example, Article 59 of the Securities Law stipulates: "The issuance and listing documents of the company's announced stocks or corporate bonds must be true, accurate and complete, and there must be no False records, misleading statements, or major omissions. "These are the principles of good faith that drive transactions to perform.

4.Improve transaction efficiency

Efficiency refers to the relationship between total revenue and total cost in a state. If the same benefits are obtained at a smaller cost in a transaction, we say that the transaction is efficient. As mentioned earlier, the principle of good faith reduces transaction costs through various forms, which means a reduction in transaction costs. Obtaining greater benefits at a lower cost is of course efficient. Good faith can also cause so-called "joint effects" in economics, that is, paying attention to good faith can not only make counterparties willing to repeat transactions with them, but also expand the scope of transactions beyond the counterparty. It can be seen that the principle of good faith can expand the transaction volume. In addition, the principle of good faith makes it easy to conduct transactions, which promotes the agility of transactions. The reduction in transaction costs, the increase in transaction volume, and the agility of transaction speed mean that the transaction efficiency is improved.

Credit Crisis in China's Economic Life and Its Countermeasures

According to the statistics of the Chinese Consumers Association, in 2001, consumers had more than 200,000 complaints about untrustworthy behaviors by manufacturers such as false advertisements, counterfeit goods, insufficient measurement, and fraudulent sales. According to calculations by relevant departments, the average annual output value of counterfeit and shoddy products in China is more than 130 billion yuan, for which the country loses 25 billion yuan in taxes each year. Such phenomena indicate that China's economic life is experiencing an unprecedentedly severe credit crisis, which has substantially threatened the healthy development of the socialist market economy. Therefore, to find out the cause of untrustworthiness and prevent it has become an issue of the times before us.

(I) Analysis of the Causes of Credit Crisis in China's Economic Life

1. The imperfect interest adjustment mechanism in the transformation of the economic system is the root cause of the credit crisis. After the founding of the People's Republic of China, the planned economy has been implemented for a long time. This economic system, which is mainly based on planning and allocation, only pays attention to obedience and distribution. It replaces or controls bank credit, commercial credit, and personal credit with national credit. Unless national credit collapses, other credits There is no risk. Therefore, although credit was generally underdeveloped at that time, people did not feel the lack of credit, and China was in the historical period of transition from a planned economy to a market economy. Different from the past, "In a market economy, any economic entity must rely on credit to communicate with other entities. Credit is ubiquitous, and every economic sector and even each economic entity produces its own credit, while also accepting others Credit. " In this way, bank credit, commercial credit, and personal credit were freed from the shackles of national credit and gained space for their own development, but at the same time, they lost the direct security guarantee provided by national credit. In order to develop production and operation and enhance their own credit capabilities, enterprises and their constituents who are the main market players urgently need a sound market mechanism to rationally allocate resources. However, because the new interest adjustment mechanism --- the market mechanism is not yet complete, in reality, whether companies or individuals do not talk about credit, the benefits they receive are often far greater than the price paid (including moral condemnation and legal punishment). Driven by the untrustworthy social environment.

2. Weak credit consciousness is an important cause of credit crisis. Default is the most basic form of credit risk, and its causes are conscious and capable. The former refers to the debtor's intention to conceal the true status of his credit to fool the creditor's credit, or the debtor's failure to perform the contract when the financial situation is normal, and the latter refers to the debtor's insufficient or interrupted expected cash inflow due to operating errors or sudden changes in the business environment, which cannot be repaid Defaulted on the current debt. It can be seen that weak credit consciousness should be the main conscious cause of general breach of contract.

3. The serious anomaly of market entities and market behavior is the direct cause of the credit crisis. In theory, law should be the last line of defense of social credit, and its normative function of correcting evil spirits should be of great significance to the formation, development and maintenance of good social credit. However, due to the lack of scientific, reasonable, or even severely lagging regulations in our country, as well as a large number of legal blind spots, the phenomenon of non-compliance, lax enforcement, and illegal investigation in judicial and administrative law enforcement is quite serious. The normative role of subjects and market behavior is therefore greatly reduced. The consequence of the above-mentioned serious anomie on market subjects and market behavior due to the lack of government credits such as legislative credit, judicial credit, and administrative law enforcement credit is that it has greatly damaged the already weak social credit foundation and directly led to viciousness in the economic field. Cases of dishonesty continue to occur.

(II) Commercial Law Approaches to Prevent Credit Crisis in China's Economic Life

Based on the analysis of the above reasons, the author believes that from the perspective of commercial law, the prevention of credit crises mainly includes the following:

1. Applying commercial law, continuously deepening the reform of the economic system, and establishing a sound interest adjustment mechanism are fundamental ways to prevent and control the credit crisis. The fundamental difference between the modern market economy and the previous planned economy is that the former emphasizes the fundamental role of the market in resource allocation, while the latter emphasizes the decisive role of planning in resource allocation. Therefore, China's economic system reform with the ultimate goal of establishing a socialist market economic system is essentially a reform of the resource allocation mechanism or the interest adjustment mechanism. In other words, the market replaces plans as the main means of interest adjustment. Because the market economy in our country was not formed spontaneously from the feudal society for a long time, it was transformed from a planned economy to a market economy. In the process of transition, the old system has not yet been touched at a deep level, and the new system has not yet been fully established. The two disadvantages of rigidity and blindness coexist, which is prone to disorder. The contradiction is mainly manifested in the fact that the spontaneous regulation of the market mechanism is rather limited, while some administrative authorities and local governments still wantonly interfere with the market and act as mediators of resources and benefits according to their old habits. As mentioned earlier, the credit crisis is rooted in this. Therefore, the prevention of credit crises should also start from here, and the solution is the root cause.

2. The use of commercial law to establish and improve credit mechanisms is an important way to prevent and control credit crises. The credit mechanism refers to the unified form of the internal organic connection formed by the internal factors that restrict the operation of credit. A perfect credit mechanism generally consists of credit awareness, credit supply and demand, credit evaluation, credit management, credit incentives, and constraints. Without any one or several of these factors, the normal operation of credit will be affected to varying degrees. We call it an incomplete credit mechanism, which is one of the important reasons for the credit crisis in China's real economic life. For example, scholars say: "A society without a reputation mechanism cannot have a real market economy." It can be seen that the construction of a socialist market economy necessarily requires the introduction of a credit mechanism to form a system for handling risks and information. The construction of a sound credit mechanism is inseparable from the regulation of various sectoral laws in the market economy legal system including commercial law. Therefore, China's commercial law should take advantage of its technical and adaptable characteristics to play its due and constructive role in establishing and improving credit mechanisms and creating a good social credit environment. Aiming at the current situation of China's business entities and users with weak credit awareness, disconnected credit supply and demand, lack of credit evaluation, credit management disorder, credit incentives and inadequate constraints, the corresponding business law countermeasures should mainly include: First, the use of commercial law guidance and evaluation Education, prediction, and punishment functions, and strive to cultivate the credit awareness of business entities and business users. It must be emphasized here that since credit consciousness as the moral and legal consciousness is the most basic element of the credit mechanism, weak credit consciousness is also an important cause of the credit crisis in China's economic life. Therefore, the author believes that fostering credit consciousness should be The key to establishing and improving a credit mechanism is. Commercial law should pay special attention to this; the second is to establish and improve the credit service supply system including credit, credit investigation, credit guarantee, credit insurance, etc., and coordinate the relationship between credit supply and demand so that the two can adapt to each other. Finally, a balance is reached; the third is to establish and improve a credit evaluation system, which can be responsible for specialized market intermediary organizations; the fourth is to establish and improve a credit management system, and implement a two-tier credit management system that places equal emphasis on the internal credit control of commercial entities and industry self-discipline, and Establish a nationwide unified credit system for corporate and personal credit, implement a one-card life-cycle system for enterprises and individuals to ensure the information symmetry of the parties to the transaction; Fifth, establish and improve a credit incentive and restraint system based on credit evaluation and credit management. Using credit disclosure as a means and relying on legal responsibilities, the credit status of business entities and business users is directly linked to their benefits (mainly economic benefits).

3. Strengthening the construction of commercial legal system and strengthening the regulation of commercial subjects and business behaviors are the direct ways to prevent and control the credit crisis. The value of credit not only depends on the self-maintenance of business entities, but also requires legal enforcement. In order to curb and crack down on the dishonesty of business entities, it is particularly necessary to strengthen the legal construction of business affairs and strengthen the regulation of business entities and business behaviors. To this end, the following aspects should be done well: First, strengthen commercial legislation, focus on improving the market access system and commercial legal liability system. Defective commercial law and commercial law regulate the modification of the amendment, the supplementary supplement, the abolition of the abolition, and the acceleration of the process of commercial legislation, and strive to punish all kinds of dishonesty in real economic life. To follow. " The second is to strengthen commercial trials and enforcement and administrative law enforcement, increase law enforcement efforts, and maintain justice and credibility in judicial and administrative law enforcement. The third is to strengthen the service and supervision functions of industry self-regulatory organizations (such as chambers of commerce, securities industry associations, interbank associations, etc.) and other market intermediary organizations (such as accounting firms, law firms, etc.) so that they can play a certain credit supply and credit evaluation. , Credit management, credit incentives and constraints. In particular, because the existence of self-regulatory rules is a restrictive way to maintain the effective operation of the market and maintain the credit of market entities and the effectiveness of market rules, the internal legislation and internal law enforcement functions of industry self-regulatory organizations are strengthened to maintain Transaction credit and market order have unique and important practical significance. In short, only by doing a good job in the above aspects and further improving the government's credit and industry's credit status, will the commercial entities and business behaviors be seriously out of order will be effectively controlled and governed, and the purpose of preventing the credit crisis will be truly realized.