Business Law - A Law Branch Growing Distinct

AuthorTita-Nicolescu, G.
PositionPhD Associate Professor, Faculty of Law-Transilvania University of Brasov
Pages187-190
Bulletin of the Transilvania University of Braşov
Series VII: Social Sciences • Law • Vol. 6 (55) No. 1 - 2013
BUSINESS LAW - A LAW BRANCH
GROWING DISTINCT
Gabriel TIXA-NICOLESCU1
Abstract: The matter that we intend to discuss in this article is the answer to
the question: is there still the branch of commercial law after the New Civil
Code was enacted? We should hereby mention that, after the New Civil Code
was passed, different opinions were formulated, which later developed into
two main currents: one current asserts the complete disappearance of
commercial law from private law; the other asserts that, on the contrary,
commercial law still exists in the new civil code.
Key words: civil law, commercial law, business law, professional, merchant.
1 PhD Associate Professor, Faculty of Law – Transilvania University of Braşov.
1. Opinions in the doctrine
The New Civil Code brings up a broader
dilemma which has raised several theories
and debates on this matter; barely one year
has passed since its enactment and, in the
legal literature, there have been hundreds
of pages dealing with the matter we try to
clarify herein. Writers have done (and are
still doing) their best in bringing arguments
to support their opinions, but we cannot
help noticing the subjectivity of opinions,
which, let us face it, stems from the
„civil” or „commercial” background of
such writers.
Those who assert that the commercial
law no longer exists (especially Dr. Ş.
Beligrdeanu) base their arguments on the
so-called monistic nature of the new civil
code regulation and conclude that
commercial law is no longer a distinct,
autonomous branch of private law, as
compared to civil law, and that we can talk
about, at most, a sub-branch of the civil
law, called ”professionals law” [1]. On the
other hand, those who assert the opposite
(the most vocal of whom is Dr. St. D.
Crpenaru) conclude beyond any doubt
that the pure Romanian theory according to
which, based on the monistic regulation
system, commercial relationships become
civil relationships and, therefore,
commercial law ceases to exist, is an error
[2].
The disagreements are interesting, but
very numerous, so that we are not able to
present them herein; however, we will try
to outline a personal opinion, obviously
not ex abrupto, but following the principle
„one step at a time”.
And where else can we start if not from
the law? Because the law gives us the only
certainty in this entire debate; the new civil
code uses a brand new concept in order to
distinguish between the typically civil
legal relations (the so-called non-merchant
relations, which existed before) and the
commercial legal relations (i.e. the former
capital relationships between two
merchants or between a n on-merchant and
a merchant). This is the concept of
professional, which we consider correct

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