The Orientation of English Commercial Law-英国硕士论文代写－r51due

英国essay论文精选范文：“The Orientation of English Commercial Law”，这篇论文讨论了英国的商法。英国的商法是一个无法严格定义的措词，但是它通常涉及商业、贸易、买卖的所有英国法律部分。商法的核心就是买卖双方的合同，但是销售并不只涉及到合同当事人，还有许多其他的利益需要法律的保护。英国商法缺乏系统性，各个立法之间缺乏关联性，现今的立法存在许多空话和晦涩难懂的语言。

In the UK, what is the commercial law, there are many claims and explanations. In addition to the existing legal definition, many scholars in this area have given it according to their own understanding of the definition, including:

"Commercial law is a language that can not be strictly defined, but it usually includes, more often, all of the English law that deals specifically with commerce, trade, and trade." "The purpose of commerce is commodity trading, and if we adopt this standard, Is defined as the relevant specific rules applicable to contracts for the sale of goods and their related ancillary contracts, namely, contracts of carriage of goods, contracts for the carriage of goods, and financing contracts whose primary purpose is to provide funds for the fulfillment of the contract of sale. The authoritative person should be academic business lawyer RM Goode Professor, RM Goode Professor of English business law theory and practice have the most far-reaching impact. He describes the commercial law as follows: "a branch of law relating to the rights and obligations arising from the provision of goods and services in trade".

This undoubtedly contains a number of different fields of English law in the field of commercial law. Professor Goode said in a lecture in 1997: "I personally believe that commercial law represents a collection of all laws that respond to commercial disputes, including provisions for the parties to a commercial transaction, between the parties to the transaction and between the parties to the transaction, Any third party, and all the principles, rules, and legislative provisions of rights and obligations in private law, irrespective of the type of law they are, and wherever they originate, so that the commercial law draws on all the principal elements of the English legal system Legal branch of nutrition, it is the core of the contract law, to today's moral justice caregiver - equity as the background.

As the contents of the English commercial law is very complex and complex, it is not easy to include its structure in the common law rules and legislative provisions. In the field of business law, judges, lawyers and academics have basically agreed that there is a need to constantly throw away the shackles of business rules and practices in recent jurisprudence and business technology, and to look for the long- Decline of the abstract principle. Therefore, the diversification of the concept of commercial law, the content of the numerous and ever-changing development, will inevitably make the positioning of commercial law in the British legal system is complex.

On the nature of commercial law, Chinese scholars generally believe that civil law and commercial law are private law, commercial law is a special law of civil law is a part of civil law; and some scholars deny commercial law is a civil law special law that commercial law originated in the Middle Ages, , From the beginning and the civil law has nothing to do; most scholars agree that commercial law is not an independent legal department; and some scholars advocate commercial law should be an independent legal department, or a number of important legal departments of the legal sector one. How is the British understanding of the nature of commercial law?

Is commercial law independent in the UK? Difficult to say a word. Some argue that commercial law is but a collection of different disciplines. It does not have its own clear foothold, but it provides explanations in classrooms and textbooks, as well as better assistance in organizing the business of the High Court. But on the other hand, if they are the universal principle of the law that governs these commercial activities in the field of "commercial law", then commercial law has its own independent status. These general principles can be used to better understand the discipline and to play an important guiding role in the face of new situations not encountered in past judicial decisions. Professor Goode is convinced that such a universal principle is absolute and that the academic community agrees, but that these principles are very difficult to identify.

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Judges do not like the commercial law as a special field, they are easy to commercial law to private civil law analogy. In the jurisprudence, the liability of the shipowner to the owner of the cargo is compared with the liability of the employer to the employee at the time of the injury; whether the damage done to the cargo by the movers may apply to the limited liability of the maritime carrier, The driver of a car has a relationship to the exemption of his employer from the injury of a passenger in a car. In a very complex case concerning a fixed-term charter party, the House of Lords insisted on analogizing it as an installment car contract. A judge for maritime contracts and dry-cleaning contracts, said: "The two contracts are only applicable to the general rules of the contract."

Jurists share the same view that contractual and trade-controlled contracts for marriages are side-by-side in the textbooks of contract law, with little or no indication that both are deemed to be unenforceable on the basis of public policy Promise of.

Common law lawyers do not consider commercial law as a distinct field from civil law because the general principles of contract law are very significant in English law, and the distinction between specific types of contracts is often understated. However, some scholars believe that the distinction between commercial law has its important significance:

"It seems very simple to distinguish between civil and commercial law lawyers who seem to answer common law lawyers, and as Weir sees it, British lawyers do not know the term commercial law and never use the term." If you ask what In contrast to the commercial law, rather than asking what the commercial law contains, the English lawyer does not know how to answer. There is no doubt that the author can write in this field, and the practitioner will see it in procedure, But if they are asked whether the parties, or property owners, or contract transactions in the commercial context is meaningful, their answer will be negative. But such a reply is worth considering. The modern court only Linking property ownership to business status rather than quantifying the size of its responsibilities on the basis of 'businessmen' or 'business people' or 'professionals' is not in itself an identity disgrace; and legislation is now ready to bring the parties Whether a businessman classifies a person's behavior into a particular class of business, the identity of the party, whether or not it is directly or indirectly defined, has a significant bearing on the application and interpretation of private law rules, Just as a lawyer in the civil law system did, and the problems encountered by the English lawyer were more serious if we used other methods of differentiation, such as classifying the transactions, although, as a whole, Tort is not likely to be formally divided between the parties' identities, but it is not surprising that the relationship and the transaction between the parties are of a commercial nature, which is relevant to the law of writing, in particular But also at this time must not ignore the common law. In sustenance relationship, sustenance is a commercial act, in determining the trustee to seek compensation for its expenses in the proceedings is very important. In the contract law, 'Business fact' is not only always on the interpretation and application of the law a great help, and the contract itself is a commercial contract on the implied terms and agents of the issue has a very important meaning. Furthermore, The question of whether an assignment is effective depends, to a large extent, on whether the assignee has a genuine commercial interest in making the request, and whether the act or transaction involved in a commercial contract, commercial interest or commercial relationship is The facts of the business or commercial transaction are directly related to the outcome of the contract, tort and property case.

After World War II, with the development of public interest, people gradually abandoned the Victorian era of pure freedom of contract ideas, but stressed the social responsibility and the protection of the weak economy. This change is reflected in a large number of legislation to protect the interests of consumers was born; especially in 1968 and 1972, "Product Description Law"; 1971 "active supply and service law"; 1973 "fair trade law" in 1973 Consumer Goods Act ; Consumer Credit Act of 1974; Unfair Contract Terms Act of 1977; Consumer Protection Act of 1987. In addition to a large number of entrusted legislation, usually to implement the EU's tenet of consumer protection. The most important of these is the Unfair Terms in Consumer Contracts Act of 1999.

Commercial law is a law on commercial transactions in which the parties trade with each other, and in the transactions where the consumer law is mainly concerned, the contract subject is usually an ordinary individual and a business-oriented individual providing goods and services or Organizational commercial law is based on the premise that businessmen have the same ability to bargain, and consumer law is established on the premise that the economic status of consumers and commercial organizations are unequal; commercial law to recognize business people can be bound by commercial practices and Regulate its own activities, and custom in the consumer law can play only play a peripheral role.

The principle of consumer law intervention in commercial transactions will weaken the degree of stability required by these transactions. There is no doubt that the legislation and the courts of the United Kingdom separate the consumer law from the international trade law. For example, the legislation governing the exclusion of liability under the Unfair Contracts Act of 1977 does not apply to insurance contracts, maritime assistance and tug contracts, charter parties, contracts of carriage of goods by sea, and international supply contracts. But in the British domestic law, it does not seem to distinguish between consumer and commercial law, Although some legislation attempts to separate the two, as in article 15A of the Sale of Goods Act of 1979, which sets clear boundaries between consumer and non-consumer transactions, the fact is that the judge usually only disputes The question of whether it is of a commercial or a consumer nature stays in the head and does not formalize the distinction between the two kinds of transactions when applying the rules of law. There is evidence that the field of consumer law is expanding, and even threatened some of the original commercial areas of the transaction is now incorporated into the field of consumer law. Most scholars in the UK believe that they have reason to consider the extent to which consumer protection legislation should go into commercial business. However, the intervention of consumer protection legislation in the field of commercial law will not meet the essential needs of commercial society.

In fact, consumer legislation falls within the scope of English commercial law, but most textbooks on commercial law do not include them because they argue that consumer protection legislation has evolved into a discipline that needs to be studied separately. Only a small number of commercial textbooks will discuss issues such as consumer credit and product liability.

Commercial law mainly involves the sale of goods law, which is the core of the contract between buyers and sellers, but sales are not only related to the parties to the contract, there are many other interests need legal protection. Mass consumer groups need to ensure that the products they buy from the market do not harm their health and lives. They do not pay for it because of market monopolies, trade restrictions, malicious fraud and false advertising. Trade must be able to be controlled not to endanger the state Economic degree and so on. It is clear that the law on commercial transactions goes far beyond the law of contract itself. It also deals with property law, tort law, equity law, remedies law, corporate law and bankruptcy law, and has also entered the field of public law. The retail buyer who has been damaged by the defective product may bring a lawsuit against the manufacturer in the law as to the strict liability, or may file a lawsuit against the manufacturer in the common law on the basis of the fault liability; the faultless purchaser has not purchased the installment agreement yet Payment of the goods can be filed suit to change the installment agreement in the main contract, while quasi-contract for the action, requiring the transferor, that is, the buyer in the installment agreement to return the benefits; credit transactions in the establishment of the security interests Will be vulnerable to bankruptcy or liquidation of the debtor; if the supplier provides a false product description will lead to litigation responsibility, regardless of whether the conviction is a violation of the contract. In short, commercial law is not confined to the laws relating to goods, it is also with the commercial transactions on documents and services in many areas, including financial, cargo transportation and insurance.

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