我國商法引入經營者概念的理論構造

The Theory Reconstruction of the Introduction of Concept about Operator in Chinese Commercial Law

傳統商法以商人為核心的理論體系存在明顯缺陷，應當對商主體制度進行反思與重構。我國商法應根據我國經濟實踐及立法體系，在總綱性商法規範中採用經營者概念，將其界定為經營行為的實施人。經營行為則可界定為以營利為主要目的而實施的行為。經營者與經營行為之間的關係可概括為：因經營行為而發生的法律關係均受商法調整，經營行為的實施者即為經營者；企業實施的行為一般可推定為經營行為，但明顯不以營利為目的的行為除外。The traditional commercial law's taking the merchant as the core of the theory system has obvious defects, so the system of commercial subject should be reflected and reconstructed. Based on the economic practice and legislation system of our country, the concept of operator should be introduced and defined as the actor of operating behavior in the fundamental commercial legislation. The operation behavior should be defined as: it is the behavior which is conducted mainly for the purpose of profit. The relationship between operator and operating behavior can be summarized as: the legal relationship established due to operating behavior is regulated by commercial law, and the actor of operating behavior is regarded as operator; as the special operator engaging in the business operating activity, the behavior conducted by enterprise should be presumed as operating behavior, except that with no profit-making purpose obviously.