商事法의 動態的․發展的 理解를 위한 小考 - 世界的 차원의 商事法 槪念은 法哲學的으로

기업법연구 26 (4):55-88 (2012)
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Abstract
The paper aims at rethinking the traditional understanding of commercial law, and tentatively provides its cosmopolitan concept under the backdrop of extended commercial exchange and corresponding development of the transnational trade laws. Given the influence of legal positivism over the source of law debate, the commercial law would be defined in a relatively narrower focus, which principally presumes the sovereign nature of legal community. The phenomenon and interactive reality in this global sphere through the mid-20th century and new millennium have driven us to experience new ways of dealings, sometimes blurring or otherwise encroaching upon a conventional discourse about the true nature of laws. In one way of efforts to accommodate such new phenomena, the author likes to present a possibility of more systemic, comprehensive, reality-oriented construction of commercial law concept concerning the current wave of legal pluralism. It became increasingly pervasive in our daily experiences that the norms of various nature have a potential to govern the commercial relationship. These norms, unlike the traditional state laws, are observed to poses a distinctive feature requiring a coherent understanding among another. This conceptual work also could mater with the traditional concept of sovereignty-driven commercial law. The paper will begin with the theoretical essence of legal positivism propounded by Hart and Raz. Particularly, the five strands of legal system would provide the basis of analysis, and could be compared to the narrative of legal positivists. For the purpose of this thesis, they would be contested to favor the strengths of cosmopolitan concept of commercial law. For an illustration,the author would argue that the shared agency element as well as recognition process of norms can give us more genuine understanding of the commercial law and practices. In this way, the author discuses and proposes a new concept focusing on the contemporary commercial law. Finally, he pointed out the critical needs of this kind of definitional work notwithstanding the legal plane or global diversity. In many ways, the paper would be found tentative, epitomizing, less exhaustive as trade-offs for a comprehensive build-up. The author also regrets to curtail much potentials of opposing arguments against the cosmopolitan understanding of commercial law. It is hoped that this work would later be developed, which could be realized by the complimentary as well as critical followers.
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