Коммерческое право в России и цивилистический подход в коммерческом праве

Having analyzed all points of view on the place of commercial law in the system of Russian law of various authors, I came to the conclusion that any of them deserves our attention.

The first point of view consists of works that reflect the position of supporters of the civil law concept, who do not consider commercial law as an independent branch of law.

Commercial law is a sub-branch of civil law, which has as its subject a private business relationship. The need for regulated public-law interference in the sphere of private relations, which in itself does not cause objections, does not require the registration of a special legal branch, since the norms of private and public law are of a diverse nature. They can be combined in a complex normative act (including the trade, business or economic code), but only as in a law special in relation to the Civil Code of the Russian Federation. The possibility of additional application of general norms of civil law in the process of regulating entrepreneurial relations, testifying to the unity of private law regulation, is one of the main differences of this approach.

The second point of view is the work of supporters of the economic and legal concept and their followers, who are fighting for commercial law as an independent branch of law, which has as its subject not a certain kind of social relations, but entrepreneurial activity.

One cannot agree with this approach, since the law regulates not the activity, but the relations that mediate it. Entrepreneurial activity is mediated by relationships that are different in nature, therefore, it is regulated by different branches of law. Some relationships that an entrepreneur enters into, taking into account their nature, are regulated by the norms of private law, while others - by the norms of public law.

The third point of view is presented by the works of authors who interpret commercial law as a complex branch of law. They include in the subject of regulation relations related to: state regulation of entrepreneurial activity (state registration of entrepreneurs, licensing of entrepreneurial activity, etc.); carrying out entrepreneurial activities (making transactions); corporate (intra-economic) regulation of relations.

In my opinion, this point of view does not deserve special attention, since the presented grouping of relations, allegedly constituting the structure of the subject of commercial law as a complex branch of law, is also not based on the principles of the scientific classification of phenomena and cannot be characterized by meaningful unity. The highlighted relations are actually constituent parts of the subjects of regulation of different branches of law: public and private. Accordingly, the methods of legal regulation of these relations are different, which is not denied by the supporters of this point of view.

The fourth group of works differs in that in them the subject of regulation of commercial law is reduced only to the relations of wholesale trade and related infrastructure, or even only to contractual relations of a very limited circle.

In particular, B.I. Puginsky, defining the wholesale trade law as a commercial law and expanding it to a sub-branch of civil law, puts forward the idea of ​​adopting the Commercial Code, in which he proposes "to concentrate the norms on contracts in which citizens never participate, but only organizations ...". In my opinion, such a separation of legal regulation of trade and consumer turnover is fraught with the creation of independent legal regimes for both and the infringement of consumer rights.

Finally, there is one more group of works on commercial law, the authors of which are not intended to determine the nature of commercial law.

After analyzing these points of view, I came to the conclusion that the civil approach is the most correct, since civil and commercial law have a homogeneous subject of regulation. Civil law regulates property and non-property relations associated with them.