Social Sciences in China (Chinese Edition)

No. 2, 2022

 

The Application of Typification in the General Provisions of Commercial Law

(Abstract)

 

Yang Feng

 

Statutory law countries have a large number of general provisions in their laws in order to overcome the lagged nature of the law. However, the substance of the general provisions is uncertain, so their application requires that they be made specific. The main way in which general provisions are made specific is typification. The theory behind this approach to the general provisions of commercial law contains four elements: the typified object, the criteria, the technique and results. The approach consists of five steps: clarifying the general provisions and their core meaning, finding and establishing typical cases, systematizing the typified results, linking pending cases to typical cases, and making value judgments and balancing interests. Due to the uniqueness of commercial law, the typification of the general provisions of commercial law should be carried out in accordance with legislative objectives, basic concepts and value orientation, and should focus on Rechtsschein Theorie; reference the conventions and rules of autonomy of commercial law; and strengthen the principle of the priority of the effectiveness of commercial law. Given the fact the accuracy of the typification of the general provisions of commercial law generally depends on experience of life and of the judicial system, therefore has a certain degree of subjectivity, it should be appropriately limited.