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De l'ordonnance de colbert de 1673 sur le commerce au code de commerce français de Septembre 2000:. Réflexion sur l'aptitude du droit économique et commercial à la codification

Joël Monéger

Revue internationale de droit économique, 2004, vol. t. XVIII, 2, issue 2, 171-196

Abstract: FROM THE COLBERT’ ORDINANCE ON TRADE TO THE 2000 FRENCH COMMERCIAL CODE : A REFLEXION ON THE APTITUDE OF ECONOMIC AND COMMERCIAL LAW TO BE CODIFIED This article analyses the three French codifications of commercial law (droit du commerce) through history : the 1673 Colbert’ ordinance – known as Code Savary –, the 1807 Napoleon’ Code de commerce and finally the 2000 Code de commerce. The aim of the article is to examine whether these codifications met the objectives they were made for : i.e. to present in a clear, logic and easy to access architecture all the law in force regarding commercial transactions. In the opinion of the author, none of those codes met its objective. Their usefulness for practitioners has still to be proved. The legislator itself does not pay attention to them, adopting new acts in the field of commercial law, but does not include them into the existing code. There are two main reasons for such triple failure. The first reason is the method used by the ad hoc commissions in charge of drafting the codes. Those commissions only had the power to codify commercial law as it existed on paper (codification à droit constant), even if the law was widely considered as inadequate at the time the codification was made. Thus, not even case law included in the codes. The second reason is an unclear preconceived idea of what constitutes commercial law (and consequently what has to be included in the code and what has not to be included) with, as a result, too much overlaps between Code de commerce and, for example, Civil code or banking law. According to the position defended by the author, from a substantive point of view the notion of Code de commerce itself is obsolete. Nevertheless, the difficulties pointed out above can be, at least partially, overcame. In order to draft a fully adequate and useful Code, the author suggests to define a core concept of commercial law i.e. limited to the essential. Suggested methods of drafting are to follow the examples given by leading publishers in the field who offer private ‘codes’, i.e. publication of the official legal texts that are customized, always up to date, and largely annotated. In addition the author proposes to extensively use the resources of electronic data processing and publishing.

Date: 2004
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