Abstract: The traditional commercial law’s taking the merchant as the core of the theory system has obvious defects，so the system of commercial subject should be reflected and reconstructed. Based on the economic practice and legislation system of our country, the concept of operator should be introduced and defined as the actor of operating behavior in the fundamental commercial legislation. The operating behavior should be defined as: it is the behavior which is conducted mainly for the purpose of profit. The relationship between operator and operating behavior can be summarized as: the legal relationship established due to operating behavior is regulated by commercial law, and the actor of operating behavior is regarded as operator; as the special operator engaging in the business operating activity, the behavior conducted by enterprise should be presumed as operating behavior, except that with no profit-making purpose obviously.

Key words: Merchant, Operator, Operating Behavior, Profit

摘要： 传统商法以商人为核心的理论体系存在明显缺陷，应当对商主体制度进行反思与重构。我国商法应根据我国经济实践及立法体系，在总纲性商法规范中采用经营者概念，将其界定为经营行为的实施人。经营行为则可界定为以营利为主要目的而实施的行为。经营者与经营行为之间的关系可概括为：因经营行为而发生的法律关系均受商法调整，经营行为的实施者即为经营者；企业实施的行为一般可推定为经营行为，但明显不以营利为目的的行为除外。

关键词: 商人, 经营者, 经营行为, 营利