Abstract：A commercial contract is a concept with systematic significance in pure commercial law theory. The criteria for determining commercial legal relationship and commercial contracts cannot be simply equated. The recognition criteria and legal application methods of commercial contracts best reflect the interactions between civil law and commercial law. The contract between commercial entities is not of course a commercial contract. Commercial subjectivity is not an essential characteristic of commercial contracts. Our civil and commercial laws do not have special regulatory provisions because one or both parties of a contract are commercial entities. As one of the factors considered in the predictability rules for breach of contract damages, and as one of the factors for determining whether the liquidated damages are excessively higher than the actual losses caused, commercial entities do not have independent decision-making significance. Profit and profitability are not essential characteristics of commercial contracts. Profit and business nature are not characteristics of commercial contracts, but rather characteristics of commercial legal relationship. The purely profit oriented and business oriented characteristics are not sufficient to exempt commercial contracts from the adjustment of the contract section of the Civil Code. Not all commercial contracts have profit-making characteristics. There are commercial contracts that are not profitable or for value. Not all contracts with business nature belong to commercial contracts. The essential characteristics of commercial contracts are collective, organizational, structural, and involving others, which is also the fundamental reason for public law regulation of commercial contracts. The commercial law establishes statutory exceptions to the principle of contractual relativity in commercial contracts. The penetrating judicial concept of commercial contracts enables public law regulation to be integrated and reflected in the judgment of contract effectiveness. The particularity of commercial contracts in terms of legal application is regulated by commercial laws, which is the basis for defining commercial contract. Commercial contracts must be adjusted by commercial law. Commercial contracts are either directly applicable to commercial law, or there is a correlation between the application of commercial law and the Civil Code. Commercial contracts are contracts that have characteristics such as group, organizational, structural, and third-party-involved, and are regulated by commercial laws. Contracts that can be fully regulated by the Civil Code, regardless of whether they have commercial subject, profit-making, or business nature, do not belong to commercial contracts. Contracts that can be directly adjusted by general private law such as the Civil Code are not commercial contracts. When there are no provisions in commercial law regarding commercial contracts, it is not necessary to simply supplement and apply the relevant provisions of the Civil Code, otherwise the special nature of commercial contracts may be disregarded. Commercial contracts apply the special commercial law preferentially, then apply the Civil Code accordingly or supplementarily, which is the particularity of the legal application method of commercial contracts.
2025, Vol. 55 
