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一、商法思维与公司法应对网络技术应用的定位对于商法思维,学界与司法界有不同观点,有商法价值理念、商法精神、商法意识等多种表述。学者认为,保障营利是商法的基本价值理念,具有相对性与客观性。~①就商法追求营利的基本价值理念的相对性而言,其具体化为维护交易的效率与安全这两个商法的基本原则。~②就商法追求营利的基本价值理念的客观性而言,保障营利的价值理念以维护交易安全与交易效率的细化形式体现在商事主体与商行为的具体法律制度之中。~③本文认为,商法最高宗旨在于保障商事主体的营利,此即所谓的效益优先,同时兼顾公平等价值取向。在商法理论上,效益优先主要体现为保障或者促进交易迅捷、维护交易安全等商法基本原则。理论界对于公司的特性有不同的概括,但大多将公司的营利型、社团性、法定性等特性包含于
First, the commercial law thinking and corporate law should address the application of network technology For business law thinking, academia and the judiciary have different perspectives, the concept of commercial law, business law, commercial law awareness and other representations. Scholars believe that the protection of profits is the basic value of the concept of commercial law, with relativity and objectivity. In the light of the relativity of the basic value concept of profit-seeking in commercial law, it is embodied in the basic principles of the two commercial laws that safeguard the efficiency and security of transactions. As far as the objectivity of the basic value concept of profit-seeking in commercial law is concerned, the detailed form of the concept of profit-making to safeguard the security of transactions and the efficiency of transactions is embodied in the specific legal system of commercial subject and firm. ~ ③ This article argues that the supreme purpose of commercial law is to protect the profit of commercial entities, that is, the so-called efficiency priority, taking into account the fair value orientation. In the commercial law theory, the priority of efficiency is mainly embodied in the basic principles of commercial law such as ensuring or facilitating swift trading and maintaining transaction security. Theorists have different generalizations about the characteristics of the company, but most of them include the profit-making, community-based and statutory characteristics of the company in