民法總則與商事立法：共識、問題及選項－－以商事代理為例

General Rules of Civil Law and Commercial Legislation: Consensus, Problems and Options, Taking Business Agency as An Example

在民法典編纂背景下，商法體系化及其規範實現適當的立法表達，已成為學界共識。《民法總則》所包含的直接或間接商法規範即為民法商法化之最新例證。但總體來看，包括職務代理規則在內的有關規範群缺失，表明民法總則的商法品格明顯不足。在民法典之外制定《商事通則》，是接續職務代理等商事立法安排相對合理的選擇。以商事代理規則設置為例，《商事通則》應摒棄法典化的統率模式，宜採以問題為導向、有限體系化的“剩餘法”模式。

In the context of the codification of China's Civil Code, it has been an academic consensus to make commercial legalization systematic and normative and implement its proper legislative expression. Many direct and indirect provisions of commercial law in General Rules of Civil Law are new evidences that civil law has been turned into commercial law. However, generally, the absence of related terms including agency in duty reveals that General Rules of Civil Law is currently lack of commercial law's characters. Besides Civil Code, making General Rules of Commerce is a relatively reasonable choice for commercial legislative arrangements such as terms of agency in duty. Taking business agency as an example, legislators should adopt problem-oriented and limited systematic pattern of 'residual law' instead of unified pattern of codification.