论“商铺转租费”的规制

发布时间：2018-02-16 03:27

本文关键词： 规则潜规则商铺转租费法治　出处：《湘潭大学》2013年硕士论文　论文类型：学位论文

【摘要】：关于“商铺转租费”的纠纷处理，在我国现行合同法的视野下，很难得到一个各方都觉得较为满意的结果。其原因在于在商业不动产转租问题上，国家制定法原本就有所不足，，法律规定的交易方式与民间普遍被接受的交易方式有着冲突，而矛盾的焦点常常指向商铺转租市场上商人们习以为常的“商铺转租费”的性质界定。在司法实践中，不同地域因商铺转租引起的纠纷中，对于“商铺转租费”的性质界定不同。有法官在判决书中认定商铺转租交易中收取商铺转租费是《合同法》中所指交易习惯，认为“商铺转租费”的收取合情合法；也有法官认定商铺转中收取商铺转租费是一种商业惯例、商业潜规则，但是既然已经是市场成规，应当尊重；但也有部分法官严格遵从好《合同法》之规定，认为商铺转租中收取商铺转租费于法无据。这种冲突本质上是广泛存于各行各业的潜规则、或者是有悖于法律条文的规定、立法原意的其他习惯同国家制定法之间的一种冲突与矛盾。我国目前已经有了基本健全的法律体系，这样一种冲突与矛盾的出现凸显出了我国现行法律中的诸多问题，例如移植而来的孕育于西方法治精神的诸多现行部门法在中国的水土不服；程序正义的司法框架虽在，但是无论从执法者还是社会大众的角度来看，并不深入人心；传统思想对于政治权力的过分迷信，让人们相信诸多潜规则比法律所规定的流程更能够高效、快捷；法律体系虽有，但是立法质量尚待提高，现行法律在各个部门法之间，甚至同一部门法内的不同法律规定之间有着矛盾。本文旨在以商铺转租收取商铺转租费这一不动产租赁市场中的潜规则为研究对象，从法理学的角度，运用法社会学、法经济学等理论知识，由规则入手，通过对规则的概念、产生原因、分类的介绍，引入潜规则这一概念，通过与显规则的比较以及法学视野内潜规则的定义分析，突出潜规则的不同特质，同时阐明做为于法律有着同源性的潜规则，对于法律的优化有着非常重要的比照意义，以潜规则为镜，法律可以不断完善自身。其后，开始以目前商铺转租市场上的潜规则：商铺转租收取商铺转租费为例，介绍这一潜规则的交易现状，对商铺转租中收取“商铺转租费“这一潜规则对社会法治的影响做分析，并论述对处于社会转型期的现代中国，法治转型中应当充分平衡潜规则和制定法二者之间的关系，在对于潜规则的规制中，应当三向行动，一方面从中国国情出发，提高立法质量；同时考虑中国的不同区域的需求，完善多元的纠纷解决机制；最后着重说明，在转型期的中国，法治思想的推行和普及是势在必行。
[Abstract]:With regard to the settlement of the dispute over the "sublease fee for commercial premises", it is very difficult to obtain a result that is more satisfactory to all parties under the current contract law of our country. The reason is that the state law on the sublease of commercial immovable property is already inadequate in the first place. There is a conflict between the transaction mode stipulated by the law and the generally accepted transaction way by the people, and the focus of the contradiction often points to the definition of the nature of the "shop sublease fee" which the merchants are accustomed to in the retail sublease market. In judicial practice, in the disputes caused by the subletting of shops in different regions, The definition of the nature of "shop sublease fee" is different. In the judgment, some judges have decided that it is the trade habit referred to in "contract Law" to collect the shop sublease fee in the commercial sublease transaction, and that the collection of "shop sublease fee" is reasonable and lawful; There are also judges who have decided that it is a business practice and commercial hidden rule to charge a retail sublease fee in the course of commercial transfer, but since it is already a market rule, it should be respected. However, some judges strictly abide by the provisions of the contract Law. It is considered that there is no basis for the law to collect the commercial sublease fee in the commercial sublease. This conflict is essentially a hidden rule widely existing in various trades, or contrary to the provisions of the law. A conflict and contradiction between other customs of legislative intent and national laws. At present, China has a basic and sound legal system. The emergence of such a conflict and contradiction highlights many problems in the current law of our country. For example, many existing laws, which are bred in the spirit of the western rule of law, are not accepted in China; though the judicial framework of procedural justice is in place, it is not deeply rooted in the hearts of the people from the perspective of law enforcers or the general public. The over-superstition of traditional ideas about political power makes people believe that many hidden rules are more efficient and faster than the processes prescribed by law. Although there is a legal system, the quality of legislation has yet to be improved, and the existing laws are between various branches of law. There are even contradictions between different laws and regulations in the same department. The purpose of this paper is to study the latent rules in the market of real estate leasing from the point of view of law, applying the theoretical knowledge of sociology of law, law economics and so on, starting with the rules, and through the concept of rules. The reasons, the introduction of classification, the introduction of the concept of latent rules, the comparison with explicit rules and the definition and analysis of latent rules in the field of law, highlight the different characteristics of latent rules, and at the same time clarify the latent rules, which are the same source of law. The optimization of the law has a very important comparative significance. Taking the latent rules as a mirror, the law can constantly improve itself. Then, it begins to take the latent rules in the current commercial sublease market as an example: the shops sublet the shops to collect the retail sublease fees. This paper introduces the present situation of the transaction of this latent rule, analyzes the influence of the latent rule of business sublease on the rule of law in the society, and discusses on the modern China in the period of social transformation. In the transition of the rule of law, the relationship between the latent rules and the formulation law should be fully balanced. In the regulation of the latent rules, there should be three directions of action. On the one hand, the quality of legislation should be improved from the point of view of China's national conditions, while the needs of different regions in China should be taken into account. Finally, it is necessary to carry out and popularize the thought of rule of law in the transitional period of China.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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