Commercial law. Commercial law as a branch of law. Subject, method and principles of commercial law (lecture notes)

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Commercial law. Commercial law as a branch of law. Subject, method and principles of commercial law (lecture notes)

Lecture notes, cheat sheets

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LECTURE No. 1. Commercial law as a branch of law. Subject, method and principles of commercial law

1. Commercial law as a branch of law

Commercial law is one of the branches of law that regulates commercial or trade activities. Commercial law is considered to be a sub-branch of civil law. Civil and commercial law govern similar relationships. Commercial law regulates the commodity turnover, which is part of the property turnover.

Commercial law is a set of legal norms developed to serve the turnover of goods and regulate the relationship between professional entrepreneurs. Commercial law is a set of rules of private law. It regulates relations between entrepreneurs or with their participation in the process of carrying out entrepreneurial activities by the latter.

It is necessary to distinguish between the science "Commercial Law" and the academic discipline "Commercial Law". The academic discipline is a brief summary of the main provisions of the science "Commercial Law". The academic discipline "Commercial Law" serves to familiarize students and specialists with this branch of law, who receive initial knowledge about science and the industry itself. The science of "Commercial Law" is the most profound theoretical knowledge about the field of "Commercial Law", obtained by scientific methods. The science of commercial law studies the very branch of law, its laws, principles, formation, development.

Today, as the commodity market develops in Russia, there is a need for a gradual separation of commercial law. Commercial law is gradually becoming an independent branch of law from a sub-branch of civil law. One of the essential conditions for classifying a country as a state with a developed market economy is the presence of commercial law as an independent branch that exists along with civil law.

2. Subject, method and principles of commercial law

The word "commerce" comes from the Latin word "commercium" - "trade".

The subject of commercial law is the regulation of professional trading activities, commercial relations, relations between entities for the sale and purchase of objects of trade turnover. The subject of commercial law is commercial (trading) activity as one of the types of entrepreneurial activity, i.e. such activities that are aimed at making a profit as a result of commercial transactions. Trading activity should be understood as a sequence of interrelated actions to promote goods from producer to consumer.

The method of legal regulation - methods and techniques for regulating relations between subjects, taking into account the distinctive features of the subjects of legal regulation. Commercial law is characterized by a more dispositive method of regulating trade relations.

The dispositive method of regulation implies:

1) equality in relation to each other of participants in trade relations;

2) the possibility for participants in trade relations to choose options for their actions in the process of organizing trade activities;

3) the possibility of including obligations in contracts at the mutual discretion of the parties.

For some relations that are regulated by commercial law, the imperative method is characteristic. It implies the existence of relations of power and subordination between the subjects, as well as the existence of legal norms that are mandatory for execution. The imperative method, for example, regulates trading activities in the public sphere. Thus, in commercial law, both dispositive and imperative methods are used as a method of legal regulation, but with a predominance of dispositive.

Principles of commercial law:

1) recognition of the equality of participants in commercial relations, which are regulated by civil law;

2) inviolability of property;

3) freedom of contract;

4) prohibition of any arbitrary interference in the private affairs of a merchant;

5) unhindered exercise of civil rights;

6) restoration of violated rights;

7) judicial protection of violated rights;

8) permitted direction of private law regulation.

The principle of the inviolability of property provides the owners with the opportunity to possess their powers to own, use and dispose of their property.

The principle of freedom of contract implies the ability of entrepreneurs to independently decide on the issues of concluding, amending, terminating a contract, determining the types of contracts and their conditions, choosing counterparties under the contract, if this does not contradict the law.

The principle of the unhindered exercise of private rights is enshrined in the Constitution of the Russian Federation of December 12, 1993 and is characterized by the free use of one's abilities and property for entrepreneurial and other economic activities not prohibited by law.

The principle of equality of participants in commercial relations creates equal conditions for entrepreneurs, regardless of their organizational and legal form and form of ownership.

The principle of judicial protection of violated rights is enshrined in the Constitution of the Russian Federation (Article 46), according to which violated rights are protected in accordance with the jurisdiction of cases, determined by the procedural legislation of the Russian Federation.

>> Forward: Correlation of commercial law with entrepreneurial, civil law. Relationship between commercial and commercial law

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