Analysis of concept legal status（分析概念的法律地位）

1、 Analysis of concept legal status Keywords: corporate / contract / rights subject / object of right Synopsis: commercial law is the doctrine of the Enterprise Law, is a topic of nearly 30 years of widespread controversy. Articles starting from combing the enterprise concept, described in detail the

2、different appearance of the business concept in the field of economics and law and why is there such a different understanding of the basic theoretical basis, that is, in the field of economics, only the enterprise be understood as a group of contract, does not have entity status in the field of in

3、civil law, corporate students have become the object of right to development to commercial law sights enterprises more grow as the subject of rights, this is the basic source of commercial law is the understanding of the Enterprise Law. However, at present, commercial law adjustment object can not a

4、chieve the transition from businessman to enterprises. Economic Interpretation of a concept Strictly speaking, is not a completely legal concepts. 1 The concept of the enterprise was originally invented by the accounting staff of As enterprises gradually become a major part of the market economy, th

5、e first of its science and systematic study economists for a long period of time, enterprises are drifted outside the legal concept, basically a concept in economics Thus, our investigation will be to start from the economics from the strict sense sense, the theory of the firm economic circles in re

6、cent decades developed in the reflection of neoclassical economics and dissatisfaction to the modern theory of the firm view, neoclassical economics is the theory of the firm 2 The theory of the firm is a product of modern theory of the firm that is the modern theory of the firm, we want to explore

7、the concept of enterprise problem, however, is not limited to the thinking in this strict sense, the theory of the firm, including not only the modern theory of the firm, and can be traced back to neoclassical economic theory. Neoclassical economic theory definition of enterprise Neoclassical theory

8、 is built up in the past about 100 years time this theory is to look at the enterprise, from a technical point of view, according to American scholar Mansfield: “Simply put, the enterprise is the production of goods and services units for sale with the Ford Foundation as the pursuit of profit instit

9、utions contrary, enterprises try to create a profit units. 3 Therefore, it seems in the neo-classical theory, the enterprise is a unit of production, it is established for the purpose In order to maximize profits, and its function is to factors of production such as land, labor, human capital and no

10、n-human capital inputs into outputs. 4 2. Definition of the Law and Economics party enterprise The law school of economics as an important branch of the Western New System School, which is at the basis of the theory of Coases transaction costs and developed a theory of genre in this school, about th

11、e definition of a business, there are two effects than large view: First, the definition of Coase, the definition of Zhanlin and McLean et al. Coases theoretical pillar of its definition is based on the corporate transaction costs, and the use of market comparison method. >> << Nature of

12、 the enterprise in an article, Coase pointed out that the operation of the market is the presence of transaction costs, in order to reduce the operation of the market and the presence of transaction costs, a new form of organization that enterprises arises out enterprises are alternative markets, in

13、ternal transaction costs than market transaction costs Coase argued, “enterprise sign alternative to the price mechanism, on the one hand, the enterprise as a form of transaction, it can be the owner of a number of factors of production and the owner to form a unit involved in the transaction, there

14、by reducing the number of traders and trading in friction, thereby reducing the cost of transactions; On the other hand, in the enterprise market transactions are eliminated, along with the complex structure of the market trading alternative entrepreneurs, entrepreneurs who directs production. 5 Cle

15、arly, Coase basic on the understanding of the enterprise as a market coordination mechanism with the same functions and more organizations to save on transaction costs. Kos groundbreaking research on the nature of the enterprise after half a century, the increasingly strong interest in the “nature”

16、of the enterprise, and explain various theories of the nature of the enterprise in these kinds of business theory, for most people to accept and have an impact for the contract theory and the contract theory first proposed the the enterprise contract theory research scholars have an important impact

17、 阿曼艾尔奇 Ann and Demsetz. they first from the enterprise input factors start enterprises of various elements (including labor, land, capital investment by the joint American scholar Jensen and Meckling further believe that companies need in order to achieve its production function from the owners of t

18、he factors of production factors of production according to which they think the business is such an organization, like most other organizations, it is a legal fiction, whose function is to act as a connection point for a combination between individuals about this combination is about established be

19、tween the labor owner of the material input and capital input provided by consumers. 6 Enterprise concept of law to understand In legislation, countries basically the concept of the right corporate legal definition, rarely from the subjects of law and even organized enterprise concept of body sense,

20、 but from a different point of view to use the business concept, the concept of so showing a different meaning . Legal concept of. In German law, the concept of the enterprise is not unified regulations into which a specific code of laws, regulations, corporate legal issues, involve many legal. Famo

21、us German scholars Heidemann, pointed out: “In recent years, enterprises have been slow occupies the original location of the business owners in the researchers minds slowly a new right people shun a timely reconstruct the private law system may become the dominant concepts. “7 German scholar Li Ten

22、a enterprise ambiguous legal concept, and therefore need to be distinguished from the broad and narrow. Broadly speaking, the business is “one unit”, is the independent meaning of that unit, the unit of and production units, it provides products and services for people to compete with other companie

23、s under the rules of the market economy. 8 involves the concept of economics and economic law on the whole defined when the modern economic sense legislation referring to the “enterprise” is the subjective independent units. use the word of the enterprise, such legislation has nothing to do with the

24、 “special form of subjectivity, and has nothing to do with the relationship in the form of enterprise and between enterprises, but only involved in the economy as a whole function and adjustment. Correspondingly, a narrow sense, the enterprise as “qualitative physical things on the civil and commerc

25、ial law meaning that as a profit for the purpose of corporate or commercial matters enterprise can be inherited, trading and rent. Li Tena business enterprises in the form of the right to object (although it is a very special form), the corporate form of the subjectivity of the enterprise specific.

26、Therefore, as Division Schmidt said the enterprises form of “Enterprise All rights obligations imputation main “, and the business is” This whole Guiji connection point “,” an enterprise is necessary to be given a form of enterprise, an enterprise necessary forms attributed to a business “. 9 Since

27、the 1920s, the French social law who has used the concept of social entities that the enterprise is a social entity, is a basic and even the most basic institutions. Corporate and political theory popular at the time, two kinds of enterprises as legal topics, which means that the enterprise as a pro

28、perty of a factor analysis, the other two will be enterprise is seen as subjects of law, to enable enterprises to become the personification of the socio-economic cells. 10 The French scholar Durand enterprise is a collaborative of business owners, employees, movable and immovable property and other

29、 property of similar countries. Here collaborative body, refers to the body of the organization of the staff working under the class system in certain positions. Corniot s Law Dictionary, pointed out that the law has not defined under the enterprise, scholars generally in the corporate department of

30、 production and economic units that share identical views on the nature of the enterprise for the composition of a job class combines the activities of the people, In order to achieve the purpose of the organization of specific economic body. often operating as synonymous use. 11 Despax enterprises

31、and law writings << >> in 1957, detailed examination of legislation, jurisprudence and doctrine that “enterprise legal concepts should be understood: two cells of an enterprise, that the economy of the cell and the cell of society is closely integrated to form the independent bodys tissu

32、e cells of the economic production of the necessary elements of the combination, the cell of society is elements of the elements of the economic cell utilizing the combination of which is today a dominant position in the French academic doctrine. In Japan, Ishii according to a long time professor th

33、at the so-called enterprise “in the capitalist economic organization under a unified, independent economic units, the calculation of the capital with persistent intent under the plan to profit-seeking behavior. “Osumi professor” enterprise has a persistent intent to comply with the plan, profit-seek

34、ing behavior independent economic units. 12 Enterprise, and consumer economy FPAHK different (ie capital engaged in economic activities, as the basis of the amount of revenue calculation, the target property value-added in the calculation of the so-called capital-profit economy, it is to a certain a

35、mount characteristics of lies. 2 civil law concept of enterprise Civil legislation, the enterprise has always been treated as a specific property of aggregate. >> 2555 << Italian Civil Code provides: “Enterprise business owners for the operation of the business organizations of all prope

36、rty.” Russian law, also be used as a property of the transaction object sense. << Russia >> 559, paragraph 1, of the Civil Code: “betrayed the contract according to business, the seller has an obligation to the enterprise as a property complex as a whole to be transferred to the buyer al

37、l, but the seller has no right to migrate in the third person except for rights and obligations. 13 Therefore, in the civil relations is a pure object exists, areas a matter areas rather than people. directly with enterprise concept instead of the company in the EC Treaty, legal concepts such as the

38、 phenomenon that the European Communitys recognition of the enterprise as a legal body. Enterprise containing the material elements and non-material elements, only as an object of a certain property rights complexes, such property belongs to the business owners. Put forward by the German jurist wide

39、ly recognized tradition in the capitalist countries, the literature Law concept. 14 Commercial law business concept “Enterprise” is a commercial law a long-term traditional terminology .1808 << French Commercial Code >> 632 terms of commercial transactions listed in the production, suppl

40、y, and a series of “enterprise” and “commercial transactions involving corporate “side by side with commercial transactions between individuals, but also pointed out that only when commercial transactions involving enterprises within the scope of the business, and as an integral part of the commerci

41、al only when. 15 Commercial Law on the commercial relationship is particularity and Commercial Law and quick, easy, quickly and other basic principles of the requirements Shoji legislation given enterprise certain people of color. Generally think, Shoji body created the business in order to exist, r

42、equires by the following elements unified combined into a single organizational body for a common purpose: first, the elements of corporate facilities, processing materials, production of appliances, commodities warehouse, Second, customer credit price of gold and other claims continue to supply mai

43、n credit relationships with other providers, with numerous legal relationship of the servant of employment between the owner of the land or housing or lease, trademarks, trade names, patents and other so-called the body property rights special interests, the fourth, is the de facto unique skills or

44、skilled Based on this good reputation interests. 16 Accordingly, the corporate sector on the commercial law is actually through a corporate organization up the right to legal relations and the fact that the relationship between the continuum. The Japanese scholar Professor Tian Zhongcheng that comme

45、rcial law in the enterprise: In order to obtain quantitative profits (the difference between income and expenditure, which is not only the remaining interests also include the cost to achieve a balanced budget sufficient) continue invested capital and labor, and the economic benefits of supply behav

46、ior, this special facilities or organizations independent economic unit body. 17 German Commercial Code scientist Professor Karsten Schmidt, the concept of corporate law said, should have three characteristics or signs: First, independence, the second in the market engaged in a way to get paid legal

47、 behavior, continuing operations has a plan and purpose. 18 Enterprises: from Economics contract development to the legal rights body Economics profession - business is a contract, does not have entity status Links to free papers Download Center Economists generally believed the formation of the org

48、anization of production and the development of basal cell and proceed from there to complete the various definitions for the enterprise. These definitions widespread two considerations direction: first, that the enterprise is based on the premise of an organization, two that this organization for th

49、e purpose of economic production. enterprise is an economic fact. Since the 1930s, the nature of the problem is a hot topic in the economics profession, companies do not have the main qualification to become the dominant understanding economics, and even the development of the modern theory of the f

50、irm basic analytical methods and analytical premise. 19 In economics, the theory of modern enterprise is developed in the reflection of neoclassical economics and dissatisfaction. Neoclassical economics to consumers and businesses as the basic unit of analysis, the theory of the firm to the enterpri

51、se as a function, it is assumed that a personification of the objective function - to maximize profits, the enterprise has thus become the so-called “black box” theory of modern enterprise research perspective depth company inside the “black box” to participate in the individual as the basic unit of

52、 analysis that The enterprise is a series of organic combination of the contract (contract, is a way of trading property rights between people. Or words, classical economics enterprises as the technical relationship between an input and output, put the enterprise of the modern theory of the firm is

53、seen as an interpersonal transaction. Kos is basically the enterprise be understood as a market coordination mechanism with the same functions and more organizations to save on transaction costs in solving the mystery of the corporate nature, he opened up new ideas for a contract analysis enterprise

54、 phenomenon, but with this At the same time, he also ignored even exclude the main qualifications. Jensen and Meckling further pointed out: “Enterprise is not an individual, it is a legal assumptions, it can be used as a focus point of a complex process, in this process of personal conflicting goals

55、 will be the framework of a contractual relationship into balance. corporate behavior is much like the market behavior in this sense, that is, the result of a complex balancing process. rare will fall in the wheat market or stock market is described as an individual of the trap, but we often make th

56、is mistake, and the organization as a stimulus and intentional personal. “20 can be seen, its denial of the main qualifications is quite clear contract is a the economics major discovery, and the essence of the modern theory of the firm. terms of the modern theory of the firm, despite the different

57、commentators there are differences in emphasis on the analysis, but its common purpose is that as the enterprise as a contract, refused to recognize the corporate entity status as a logical result, this theory does not recognize the business as a separate entity in which the enjoyment of rights, obl

58、igations and responsibilities. 2 people legal theory - the enterprise is the object of right Visits from an economic point of view, the enterprise includes almost all operating economic entities and organizations, it can be divided into a variety of types, such as individual businessmen, unlimited j

59、oint liability company, limited liability companies, stock companies, co-operatives, state-owned enterprises, joint enterprises and enterprise groups in the law, however, the types of crucial, because, in the tradition of the civil law, corporate and there is no real legal definition, and the system does not exist in the real legal That is because the traditional concept of enterprise