民商合一的多重內涵與理論反思

由於各國對同一術語的理解不一，民商合一的參與者及其結合方式各國不同，1942年通過《義大利民法典》實現的民商合一實際上是民法與包括傳統商法、勞動法和某些經濟法的新商法的合一，其中，新商法是施動者，民法是受動者。這種義大利式的民商合一奠基於義大利長期的民商合一理論傳統，並以職團主義為基礎。這樣的民商合一導致了民法的公法化、商法的經濟法化。儘管法西斯政權已覆滅，這樣的民商合一體制卻被保留下來，其中的新商法觀在德國亦有表現。令人遺憾的是，義大利的民商合一在我國從未得到正確的解讀，人們還在兩個私法分支的整合框架內談論這種模式，忽略了參與這種合一的經濟法、勞動法甚至反壟斷法因素。發生這種誤讀的原因在於我國學界關於民商關係的討論用語陳舊，討論中搶地盤意識多，科學精神少，這是需要改正的。

Because of different understandings to the same terminology, the elements of unification of civil law and commercial law are different in different countries, so is the way of unifying them. The unification of civil law and commercial law achieved by the ''Italian Civil Code of 1942'' is actually a unification of civil law and new commercial law, which includes traditional commercial law, labor law and certain sects of economic law. Among them, the new commercial law plays an active part; while the civil law plays a passive role. This Italian-style unification of civil law and commercial law is based on the Italian long-term theoretical tradition of the unification of civil law and commercial law, as well as corporatism. This combination of civil and commercial law led to the fact that the civil law has absorbed elements from public law, and the commercial law has borrowed elements from economic law. Although the fascist regime was destroyed, such a system of unification of civil law and commercial has been retained, and its concept of the new commercial law also reappears in Germany. It is a pity that Italy’s model for integrating civil and commercial law has never been correctly interpreted in China. Scholars talked about this model within the framework of the integration of the two branches of private law, ignoring the participation in this integration of factors of economic law, labor law, even antitrust law. The reason for this misreading is that the language of the Chinese academic community concerning the relationship between civil and commercial is obsolete, and there are many unnecessary power struggles in the discussion, with few scientific spirits.