상법상 상인 및 상행위 규정에 관한 일고찰 - 기본적 상행위를 둘러싼 입법을 중심으로 -
A Study on Merchant and Commercial Transaction Rule in the Commercial Law
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The commercial law as a fundamental law applied to company life relations has the significance of existence in spite of a tendency the commercialization of the civil law and a tendency the merchant of the commoner. Commercial law revision makes ends meet in an IT technique and the development of the electronic commerce and a new commercial transaction in these days. The revision of the commercial law that surrounded the basic commercial transaction that made ends meet in 2010 reflects such an economic reality, and is going to protect the business person concerned by the transaction. A commercial transaction of the broadcast has solved by revision of the commercial law and the corporation law in Germany and Japan. In other words, it is settled by the method to select the merchant-related right or wrong as by presence or absence of necessity 'of a management organization equipped with for the method of the' merchant in HGB Article 1 Clause 2 in Germany. In the corporation with broadcast as business, it is to a merchant unless a small personal merchant makes broadcast business. In the case of Japan, all corporations which ran the broadcasting which was not so-called basic commercial transaction came to treat the merchants as a merchant in corporation law. In the case of our country, the broadcasting to manage with the facilities of merchant or corporation form is seen merchant by commercial law conventionally. The right or wrong that an expert is a merchant becomes the problem. It is a common view in Japan and Germany as well as our country to deny merchant characteristics of the professional expert like as a lawyer and a doctor. However, the opinion to have to accept merchant characteristics of the expert in Japan and Germany is insisted on as existence emphasis recently. The opinion particularly insist on that huge general hospital has a merchant characteristics. We must deny general merchant characteristics of the expert at the standpoints such as traditional public interest characteristics. But there is necessity to affirm the merchant characteristics exceptionally. It must be settled by a legislation. It is the direction where one background of the legislation in Japan and Germany extends a merchant concept for consumer protection by the business(called a commercial transaction or a civil affair business). In other words, if the protection necessity of the consumers who are the trading partner of an expert like as a doctor and the broadcast is big, we have to solve this necessity by revision of the commercial law. It is the direction where one background of the legislation in Japan and Germany extends a merchant concept for consumer protection by the business(called a commercial transaction or a civil affair business). In other words, if the protection necessity of the consumers who are the trading partner of an expert like as a doctor and the broadcast is big, we have to solve this necessity by revision of the commercial law. It seems to be a meaning than extending a merchant concept to non profit corporation to adopt the concept of the consumers in civil law. In addition, it is thought with what can be settled by a supplement legislation and the fair execution of the consumer basic law.
Abstract
The commercial law as a fundamental law applied to company life relations has the significance of existence in spite of a tendency the commercialization of the civil law and a tendency the merchant of the commoner. Commercial law revision makes ends meet in an IT technique and the development of the electronic commerce and a new commercial transaction in these days. The revision of the commercial law that surrounded the basic commercial transaction that made ends meet in 2010 reflects such an economic reality, and is going to protect the business person concerned by the transaction. A commercial transaction of the broadcast has solved by revision of the commercial law and the corporation law in Germany and Japan. In other words, it is settled by the method to select the merchant-related right or wrong as by presence or absence of necessity 'of a management organization equipped with for the method of the' merchant in HGB Article 1 Clause 2 in Germany. In the corporation with broadcast as business, it is to a merchant unless a small personal merchant makes broadcast business. In the case of Japan, all corporations which ran the broadcasting which was not so-called basic commercial transaction came to treat the merchants as a merchant in corporation law. In the case of our country, the broadcasting to manage with the facilities of merchant or corporation form is seen merchant by commercial law conventionally. The right or wrong that an expert is a merchant becomes the problem. It is a common view in Japan and Germany as well as our country to deny merchant characteristics of the professional expert like as a lawyer and a doctor. However, the opinion to have to accept merchant characteristics of the expert in Japan and Germany is insisted on as existence emphasis recently. The opinion particularly insist on that huge general hospital has a merchant characteristics. We must deny general merchant characteristics of the expert at the standpoints such as traditional public interest characteristics. But there is necessity to affirm the merchant characteristics exceptionally. It must be settled by a legislation. It is the direction where one background of the legislation in Japan and Germany extends a merchant concept for consumer protection by the business(called a commercial transaction or a civil affair business). In other words, if the protection necessity of the consumers who are the trading partner of an expert like as a doctor and the broadcast is big, we have to solve this necessity by revision of the commercial law. It is the direction where one background of the legislation in Japan and Germany extends a merchant concept for consumer protection by the business(called a commercial transaction or a civil affair business). In other words, if the protection necessity of the consumers who are the trading partner of an expert like as a doctor and the broadcast is big, we have to solve this necessity by revision of the commercial law. It seems to be a meaning than extending a merchant concept to non profit corporation to adopt the concept of the consumers in civil law. In addition, it is thought with what can be settled by a supplement legislation and the fair execution of the consumer basic law.
참고문헌 (73)
- 金星泰, "商法總則・商行爲法講論" (1998), 法文社
- 金元基, "팩토링去來의 外上賣出債에 대한 考察", 商事法學(現 企業法硏究), 2 (1996)
- 金亨培, "債權各論(契約法)" (2001), 博英社
- 김선광, "상행위개념의 변화와 상법개정 -방송·지급결제업무를 중심으로-·", 상사법연구, 28(2), pp.9~33 (2009), 한국상사법학회
- 김홍기, "채권매입업(factoring)의 법적 쟁점과 상법개정안의 검토", 상사법연구, 28(2), pp.107~150 (2009), 한국상사법학회
- 朴贊雨, "商人槪念", 延世法學硏究, 5(1) (1998)
- 商法中改正法律案 審査報告書, "法制司法委員會", ~ (1995)
- 徐憲濟, "사례중심체계 商法講義(上)(제2판)" (2007), 法文社
- 신현윤, "상법총칙·상행위법 개정안의 주요쟁점", 상사판례연구, 21(3), pp.3~30 (2008), 한국상사판례학회
- "黄瑞宜 博士学位(課程博士) 審査報告" (2007)[URL]
- 안강현, "상법총칙・상행위" (2008), 博英社
- 尹庸碩, "새로운 형태의 거래행위 - 리스, 프랜차이즈, 팩토링에 관한 연구", 法學硏究, 36(1) (1995), 부산대학교 법학연구소
- 이범찬, "상인개념과 상행위개념의 재검토", 고시연구, (39) (1977)
- 이상수, "법조윤리의 이론과 실제" (2009), 서강대학교 출판부
- 李銀榮, "債權各論 第5版" (2007), 博英社
- 이진기, "민·상법의 통일적 법제도의 정비를 위한 조건 - 法源과 상사 법률행위를 중심으로", 재산법연구, 27(1), pp.175~211 (2010), 한국재산법학회
- 이철송, "商法上의 立法錯誤의 是正을 위한 연구(1)- 商法總則ㆍ商行爲編을 중심으로 -", 비교사법, 12(4), pp.1~25 (2005), 한국비교사법학회
- 李哲松, "商法總則・商行爲(第3版)" (1996), 博英社
- 李哲松, "商法總則・商行爲(第9版)" (2010), 博英社
- 임재호, "商法總則․商行爲法 判例의 形成과 變遷", 상사판례연구, 23(1), pp.3~61 (2010), 한국상사판례학회
- 林重鎬, "1998년 改正獨逸商法에 있어서의 商人槪念의 改革과 그의 商法的 意味", 法學論文集, 23(1) (1998), 中央大學校 法學硏究所
- 鄭燦亨, "商法講義(上)(第13版)" (2010), 博英社
- 정형근, "변호사 직무의 공공성", 한양법학, (30), pp.195~221 (2010), 한양법학회
- 조동관, "상법 총칙·상행위편 개정 과정과 주요 쟁점 - 국회 법제사법위원회 심사 과정을 중심으로", 선진상사법률연구, (51), pp.137~164 (2010), 법무부
- 崔基元, "商法學新論(上)(第18版)" (2009), 博英社
- 최영홍, "프랜차이즈 관련 상법 개정안의 고찰", 상사법연구, 28(2), pp.69~105 (2009), 한국상사법학회
- 崔埈璿, "商法總則・商行爲法(第5版)" (2009), 三英社
- 김선광, "상행위개념의 변화와 상법개정 -방송·지급결제업무를 중심으로-·", 상사법연구, 28(2), pp.9~33 (2009), 한국상사법학회
- 황승흠, "변호사의 공익활동의무", 법과사회, (26), pp.237~263 (2004), 법과사회이론학회
- 加藤新太郞, "弁護士倫理" (2006), 有斐閣
- 江頭憲治郞, "会社法コメンタール１", 商事法務, pp.131~ (2008)
- 森本滋, "逐条解說会社法 第1卷" (2008), 中央経済社
- 橋本清治, "開業」概念の税法的再検討-医師の開業を具体例として", 立命館法政論集, (１) (2003)
- 近藤光男, "商法総則・商行為法(第5版 補訂版)" (2008), 有斐閣
- 金井貴嗣, "独占禁止法" (2004), 弘文堂
- 落合誠一, "商法 Ⅰ-総則・商行為(第3版補訂版)" (2007), 有斐閣
- 大隅健一郞, "商法總則" (1984), 有斐閣
- 大隅健一郎, "商法総則(新版)" (1978), 有斐閣
- 大隅健一郎, "商法総則" (1982), 有斐閣
- 蓮井良憲, "講義商法総則" (1980), 青林書院
- 服部榮三, "商法総則" (1972), 青林書院新社
- 山下友信, "新会社法の意義", 法学教室, (304) (2006)
- 落合誠一, "新会社法講義 第１回", 法学教室, (307) (2006)
- 森本滋編, "商法總則講義(第3版)" (2007), 成文堂
- 相澤哲, "一問一答新・会社法" (2005), 商事法務
- 相澤哲, "定款の変更, 事業の譲渡等, 解散・清算(新会社法の解説⑾)", 商事法務, (1747) (2005)
- 相澤哲, "会社法総則・株式会社の設立(新会社法の解説⑵)", 商事法務, (1738) (2005)
- 石井照久, "商法総則" (1967), 勁草書房
- 松尾弘, "法整備支援における民法典整備の意義と課題", 慶應法学, (4) (2006)
- 神作裕之, "会社法総則・擬似外国会社", ジュリ, (1295) (2005)
- 神田秀樹, "会社法(第八版)" (2006), 弘文堂
- 弥永真生, "リーガルマインド会社法 第９版" (2005), 有斐閣
- 田邊光政, "商法総則商行為法(第3版)", pp.38~ (2008), 新世社
- 森本滋, "商法総則講義(第3版)" (2007), 成文堂
- 田中裕明, "会社法の基本問題 : 消滅時効", 神戶学院法学, 38(3) (2009)
- 淺木愼一, "商法教授方法に関する研究手帳(１)", 金沢法学, 51(1) (2008)
- 川村正幸, "Ⅰ. 総則 1. 会社法現代化の意義, In 別冊金融・商事判例 新しい会社法制の理論と実務" (2006)
- 内田, "講演会 債権法改正の課題」", ~ (2009)
- 鴻常夫, "商法総則（新訂第５版)" (1999), 弘文堂
- 関俊彦, "商法総論総則(第2版)" (2005), 有斐閣
- 青竹正一, "特別講義 改正商法総則・商行為法" (2006), 成文堂
- "Begründung des Regierunsentwurfs", ZIP, ~ (1997)
- Claus-Wilhelm Canaris, "Handelsrecht, 24. Aufl" (2006), Verlag C.H.Beck
- "Directive 2007", 64, 7, pp.EC, 2002, 65[DOI]
- Feuerich, "Bundesrechtsanwaltsordnung(BRAO)(7. Auflage)" (2008), Verlag Franz Vahlen
- Goldschmidt, "Universalgeschichte des Handelsrechts" (1891)
- Harold J. Berman, "The Law of International Transactions (Lex Mercatoria)", Harv. Int'l L.J, 19, pp.221~225 (1978)
- Heymann, "Handelsgesetzbuch, 2. Aufl" (1995)
- Jürgen Basedow, "Beyond the State: Rethinking Private Law", Am. J. Comp. L, 56, pp.703~705 (2008)
- Karsten Schmidt, "Das Handelsrechtsreformgesetz" (1998), NJW
- Wolfgang Zöllner, "1998년 독일 상법개정", 法學論集, 34 (1998), 고려대학교 법학연구원
- Steinbeck, "Handelsrecht" (2005), Nomos
- Wayne R. Barnes, "Contemplating a Civil Law Paradigm for a Future International Commercial Code", La. L. Rev, 65, pp.677~737 (2005)