Keywords: commercial law; Commercial test; Commercial law consciousness

Abstract: After the implementation of large-scale civil trial mode in China, the civil and commercial trial which inherits the tradition of economic trial should have different characteristics from other civil trials. According to the characteristics that the second people's courts at all levels mainly try commercial disputes and apply more commercial law norms, the working characteristics of the second people's courts should be clearly defined as commercial trials. The characteristics and principles of commercial law require the introduction of commercial law concepts and the establishment of commercial law consciousness in the trial, such as attaching importance to the qualification examination of commercial subjects, maintaining the stability of enterprises, safeguarding the freedom of commercial contracts, attaching importance to the profit-making characteristics of commercial subjects and commercial behaviors, and attaching importance to technical norms to ensure simple, fast and safe transactions. The characteristics and principles of commercial law also point out the direction for how to further expand the trial field and strengthen judicial guidance in civil and commercial trials.

Since the Supreme Court decided to implement the pattern of civil trial in China in 2000, the trial work of the Second People's Court has been adhering to the tradition of economic trial [1] and continues to play an important role in the establishment of China's socialist market economic system. However, it goes without saying that the pattern of civil trial blurs the trial characteristics of the people's court of second instance, and its social influence is obviously weakened compared with the "economic trial era". In 2002, the number of civil and commercial cases and judges decreased by more than 30% compared with 1999 respectively. The convening of the Third Plenary Session of the 16th CPC Central Committee marks the beginning of a new historical journey to improve the socialist market economic system in China's reform, opening up and socialist construction. Civil and commercial trial is a trial field that is most closely related to economic reform and development. The Central Committee of the Communist Party of China's Decision on Perfecting the Reform of the Socialist Market Economic System puts forward many important theoretical propositions, important theoretical viewpoints and major policy measures, which puts forward new requirements for civil and commercial trials and provides opportunities for their development. The author intends to put forward some thoughts on how to practice innovation and promote the development of civil and commercial trial work by analyzing the characteristics of civil and commercial trial work and the new situation it faces.

First, positioning commercial experiments.

After the implementation of the civil trial pattern, we have realized the unification of the civil litigation system in judicial practice, but we have no reason and can't deny the objective differences in the characteristics of the cases tried and the application of substantive law. How to embody the characteristics of work in the pattern of civil trials is the key to the development of civil and commercial trials. Only by clarifying the characteristics of the work can we correctly position the work of the Second Hospital and firmly grasp the development direction. In my opinion, according to the characteristics and applicable laws of the people's court of second instance, we should clearly raise the banner of commercial trial and position the working characteristics of the people's court of second instance as commercial trial.

First of all, the Second People's Court is a trial court that mainly tries commercial disputes. According to the jurisdiction of the Supreme People's Court, the obvious difference between the types of cases tried by the People's Second Hospital and the People's First Hospital and the People's Third Hospital is that the People's Second Hospital mainly tries company, insurance, securities, futures, bills, bankruptcy, guarantee disputes and contract disputes between enterprises. The legal relations involved in these disputes are all within the scope of traditional commercial law adjustment and can be collectively referred to as commercial disputes [2]. Commercial disputes are disputes between commodity producers and operators with equal subjects in the process of commercial behavior for profit. The inherent pursuit of businessmen and the inherent personality of commercial behavior determine that commercial disputes have the following characteristics different from general civil disputes: First, from the main point of view, commercial disputes are disputes between businessmen. Having the qualification of civil subject is the premise of becoming a commercial subject, but not all civil subjects can become commercial subjects. Only a civil subject who has legal conditions, is allowed to engage in commercial activities by law, and has gone through relevant approval and registration procedures can become a commercial subject. In China, there are three types: commercial individuals, commercial jurists and commercial partnerships. Secondly, judging from the types of disputes, they are mainly disputes in the process of commercial activities and disputes arising from the establishment, change and termination of commercial subjects. Business behavior has two characteristics: profit-making and business. That is, business behavior is a profit-making behavior, and the actor's profit-making economic activities are his own business. Third, it is different from ordinary civil disputes in the applicable law of dispute settlement. In handling commercial disputes, the application of commercial law takes precedence over civil law. If there is no commercial law, the relevant provisions of civil law shall apply. In recent years, the proportion of insurance, securities, bills, futures, enterprise restructuring, bankruptcy, company litigation and other cases in civil and commercial cases has greatly increased. These cases are strong in policy, difficult to apply the law and difficult to hear. Positioning the work of the Second People's Court in commercial trials and analyzing the characteristics of commercial disputes will help us to explore and study the laws of commercial trials and grasp the initiative of work.

Secondly, commercial law norms are increasingly applicable to trial practice. Although China is a country with no distinction between civil law and commercial law, it only shows that there is no commercial code outside the civil code. It is not that there is no commercial law in China, but it is generally recognized that there are company law, bankruptcy law, guarantee law, securities law, negotiable instrument law, insurance law, maritime law and so on. In recent years, with the gradual establishment and improvement of the market economy system, more and more scholars advocate the independence of commercial law. As a special law of civil law, commercial law has become a general consensus in the field of civil law in China, so that civil law and commercial law are collectively referred to as "civil and commercial law". [3] In fact, the differences between ordinary civil acts and commercial acts and between ordinary civil relations and commercial relations also exist objectively, which determines that some unique principles and systems of commercial law are not completely compatible with ordinary civil law, and commercial law has its own characteristics. Commercial law takes the regulation of commercial subject and commercial behavior as its own responsibility, which is different from civil law in that it focuses on protecting the general interests of the public. Commercial law focuses on protecting the interests of commercial subjects, and the speed and safety of transactions are the necessary conditions for commercial subjects to achieve profit-making purposes, so commercial legislation takes the speed and safety of transactions as its basic purpose. Although the application of substantive law in the trial of cases by the Second People's Court is not limited to commercial law, it is an indisputable fact that commercial law is mainly applied in the trial of cases by the Second People's Court, and its application frequency is getting higher and higher. Positioning the work of the Second People's Court in commercial trials will help us to seriously study the characteristics and basic principles of commercial law, correctly apply the law, and continuously improve the trial level.

Third, there are obvious differences between commercial law consciousness and civil law consciousness. In China's real life, due to the deep-rooted concept of civil law, people often ignore the inherent characteristics of commercial law, the inherent pursuit of businessmen and the inherent personality of commercial behavior, and their awareness of commercial law is very lacking. The following two cases may illustrate one point. An intermediate people's court once tried a case in which a child's parents went to a life insurance company to insure their children's safety. The standard clauses provided by the insurance company stipulate that the physical examination of the insured is one of the effective elements of the contract. The insured has no objection to the clause and thinks that the child is healthy. I signed the contract without a medical examination and paid the insurance premium to the insurance company according to the contract. There was a traffic accident on the way to take the child to the hospital for medical examination, and the child was killed by a car. The insured claims from the insurance company. When the court heard the case, there was a view that the insurance company should compensate. The main reason is that the insured has signed the contract and paid the insurance premium. The death of the insured has nothing to do with the medical examination required by the contract. No matter how powerful a person in the world is, it is impossible not to be killed by a car. Starting from substantive justice, insurance companies should compensate. Another view is that the insurance company should not compensate, mainly because the contract has not come into effect. In this case, the basic principle of "fairness and justice" of civil law should be used with caution. Because the insurance company is a businessman, it pursues the profit target. Many contents in the insurance contract, including requiring the insured to have a physical examination, are an arrangement to minimize their own risks without violating the law. Unless the court finds that the clause in the contract requiring the insured to have a medical examination is obviously unfair, the contract has not yet come into effect and the insurance company does not need to pay compensation. It can be seen that the first opinion tends to the concept of civil law, while the latter tends to the concept of commercial law. The above phenomenon shows that it is not terrible to have no commercial code, but it is very dangerous if there is no awareness of commercial law, and reality calls for awareness of commercial law. Positioning the work of the Second People's Court in commercial trials will help us to overcome the customary practice of equating commercial disputes with civil disputes, establish a correct trial concept, strengthen the awareness of commercial law in the trial of specific cases, better embody the spirit of commercial legislation, and ensure the fast and safe market transactions.

In addition, commercial disputes are closest to economic life and closely related to the development of productive forces. The trial of commercial disputes is a trial activity that directly serves economic construction in the trial work of people's courts. Positioning the work of the Second People's Court in commercial trial will help to overcome the negative impact of the vague title of "civil and commercial trial" on the system of the Second People's Court, stimulate the sense of pride and mission of civil and commercial judges, boost their spirit and morale, and give full play to the due functions of the Second People's Court.

Second, establish a sense of commercial law.

The reason why we should introduce the concept of commercial law and establish the consciousness of commercial law is because commercial law, as a special law of civil law, is really different from civil law in value orientation and system design. Simply considering some problems in the commercial field with the thinking of traditional civil law either violates the spirit of commercial legislation or fails to find a suitable solution. The most basic value orientation of civil law is fairness, that is, fairness gives consideration to both benefits and others, while the value orientation of commercial law is benefit, that is, benefits give consideration to both fairness and others. Therefore, the commercial law mainly reflects and embodies the requirements of commercial subjects for smooth, reliable and safe commercial transactions and the institutional arrangements of various special rights related to them. Commercial law has the characteristics of profit-making, strong technology, public law and development, and pursues the basic principles of strictly statutory commercial subject, maintaining commercial subject, maintaining transaction fairness, maintaining transaction simplicity and speed, and maintaining transaction security. [4] The characteristics and principles, spirit, basic content and specific system of commercial law determine the awareness of commercial law that we should establish in the trial:

1. Attach importance to the qualification examination of business entities. The legal control of commercial subjects is related to the security of social transactions and the protection of the interests of third parties. There are a large number of compulsory laws and regulations in modern countries to strictly control the qualifications of commercial subjects, forming strict statutory principles of commercial subjects, including three elements: legal types, legal contents and legal publicity of commercial subjects. This requires us to pay attention to the strict examination of the subject qualification of the parties to the sales contract in the trial practice. If the subject qualification has one of the following circumstances, the contract is deemed invalid: (1) Individuals without business licenses have signed contracts for sales, processing and contracting for profit many times; (2) Contracts concluded by state organs and public welfare social organizations for profit; (3) Institutions that have not obtained business licenses have signed contracts for profit many times; (4) Contracts for the sale and processing of specific subject matter concluded by legal persons or other economic organizations for the purpose of making profits without obtaining the business license of specific subject matter (such as financial and tobacco business licenses).

2. Pay attention to protecting the counterparty of the business entity. Based on the special qualifications of commercial subjects, commercial law imposes much stricter restrictions on commercial subjects than civil subjects, endows them with more duty of care and stricter responsibilities, and embodies the special protection for vulnerable parties in commercial transactions. This is also the concrete connotation of the principle of fairness in commercial transactions, which not only maintains formal equality, but also pays attention to maintaining substantive equality. This requires us to choose more favorable specific provisions in commercial law and civil law when applying the law in trial practice, which reflects the protection of the counterparty of commercial subjects.