상법상 상인 및 상행위 규정에 관한 일고찰 - 기본적 상행위를 둘러싼 입법을 중심으로 - (A Study on Merchant and Commercial Transaction Rule in the Commercial Law)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 24권 / 2호 / 93 ~ 147페이지
· 저자명 : 손영화

초록

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.

영어초록

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.

참고자료

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