| 1. Goal of argument and logic clues of the dissertaion1.1 Goal of argumentCorporation, as a civil subject system in all ages, has advanced rapidly in the late 200 years. Then, what's the reason that made this system has gained such power? If we confine our view only to the process of reforms of state-owned enterprises in our country, we will find that how enterprise corporation can have possessed of independent property and more independent property have always been regarded as basis of property system when we set up modern corporation system and increase the level of economy efficiency. No matter it is right or not, it do give a reply that the power of corporation system comes from the fact that corporation has obtained property. However, the congregation of this power is neither discovered by socialism civil law, nor created by capitalism civil law, but develops from historical origin of corporation system. Lamentedly, in our country, argument on civil law fields about the relationship between corporation and property has restricted on two sides for a long time. On one side, it lacks historical accumulation, So it seems that the combination of corporation and property is just synchronous with the history of socialist civil law. On the other side, it lacks creed which can govern all categories of corporation. Seeing from this restriction, it reflects a chronically thought in civil law about purely instrumental understanding of corporation system. It thinks that corporation is just artificial personality, as a substitute for most parties and means to simplify transaction. In addition to that, property right of corporation is nothing but obtained for better affiliation with outside and it is equal to the right of natural person. In a word, corporation is only ordinary personality which is equal to natural person in civil law. Property system has been played a fundamental part in the process of formation and flux of group personality. The group personality is the result of development of group property system. The evolvement of type of group personality realizes according to the change of it. Group property system changes because the 'life' of corporation who live for property, must be confined to make profit for corporation member and social public, or at least within harmless bound of safe mechanism. 1.2 clueBesides lead-in statement, the paper divides into three parts: first volume, second volume and conclusion. The first volume—history statement, including the first chapter to fourth chapter, wholly discourses upon the history of corporation independent property system andconcludes its function mechanism to the form and flux of corporation personality that reduce to two parts: molding corporation personality, one is to realize the intensivism of property right exertion mechanism, another is to realize the equality of distribution and decentralization of property profit. The second volume—function statement, including fifth chapter to seventh chapter, is conclusion, judgment and expectation of the first volume that the huge power of corporation property system is not always positive and it needs to be corrected when it is used by few of corporation members to invade the profit of other members.2. An introdution to contextLead-in: Firstly, the paper reviews the main circles studied by corporation property system in our country. The theory of corporation property right is mainly challenged by the theory of dissection which only puts the relationship of corporation and property in the condition that corporation is the subject of market transaction. It has never come to realization that using conceptual law to unify corporation property rights that desire to realize the passive neutral opinion in civil law between corporation and natural person. No evidence shows that the process is thorough that the corporation subject roots in public right and comes into citizen community. To simplify the review of the relationship of corporation and property to the extent that has no difference with natural person's capability of corporation property right, it is overconfident on the persistent civil character of property of corporation, ignoring the fact that the corporation is born out of public right. However, in the traditional civil law of our country, those who hold the theory of "corporation property right" didn't find above weakness on the opposite standpoint. The over confined historical view makes the theory of "corporation property right" lack depth in history. Thus, it is difficult to form macro-theory basis in the relationship of corporation personality and corporation property. To bring the state-owned enterprise back to life, with excessively clear intention, weakens the strength and the extent of effect which is indispensable for law of corporation property system studied by sociology.First volumeChapter one: Group personality - rudiment of corporate body was born in the Roman Law. In these corporate bodies, what the most conspicuous doesn't lie in private corporate body familiar to us but the country as a representative public corporate body. So how can a country become corporate body and turn into later generation's source? In this article, a comparison research is conducted for analyzing another important corporate in the RomanLaw - the Roman family. The reason why Roman family which regarded more closer to modern corporate doesn't become the root of modern corporate is that it lacks interior democratic institution which regards its members as personality in domestic family, and the paternity doesn't exist as the "group power" but the "personal power" in dominance of property. The Roman family property right pattern is the historical origin of next generation's "individual proprietorship". However, it isn't positive cause on formation of personality, but "bad case" of the dissimilation of corporate body. The causation why Roma is endowed with corporate body's personality is its existence of interior democratic institution .Along with the transition from republic Roma to empire, the institution of democratic has been devastated and formerly country - group corporate body's property institution gradually collapses, but the main body statue of Roma still remains via regulating its pattern of property institution, which is the transition from group corporate body to the concept of members-repulsive consortium corporate body.Chapter two: In the evolution history of corporate body institution, subsequently, what plays the vital role is the Germanic law's possession system. The "possession system" namely has the externality of corporate body on the external relation, however, on the internal relation, there exists a "complexity" that everyone proved to be a master. Looked from our view, "possession system" is not a kind of corporate body because of the difficulty of external trade activity. But no one can deny the fact that "possession system" provides an important rectificative gist for the development of corporate body institution. Therefore, the relationship of "possession system" that is continuously required between group and individual that each other should be kept at arm's length—compared with the public corporate body system in Roman law approaches to latter-day's private corporate body, which attributes group members' benefits to the proliferation orbit of members' property benefits and exerts its social security function. The next is the ecclesial corporate body's property institution. In order to mediate the depreciated attitude in doctrinal ethics related to property right and the realistic contradictive result between the ecclesial group and the master of property, the ecclesial group has obtained the corporate body's personality. As an explaination that the ecclesial property should used for ecclesial purpose, the ecclesial corporate body is looked as the guarder of the property of God in society, which impels the ecclesial property transform as the country property of Roman. So, the ecclesial property is the earliest mode that practices "the theory of imitation corporate" and "the theory of purpose property " in late time. As far as corporate body concerned, the Middle Ages were the times full of shakes and wobbles. Beside both sides of corporate body personality model provided as a pattern of public corporate body byRaman law, it is the double wings that gradually transit from corporate body system to non-corporate body pattern. If take a left-to-right glimpse as historical development direction, on the left, it is the "possession system" regarded as the matrix of contemporary corporate body; on the right, it is the objective proprietary maintained by ecclesial corporate body through pieties of belief. Between the right and left, the wobble of corporate body institution can realize the function that seeks maximum benefits but minimizes losses, which help certain associations to choose appropriate corporate body form that legislator favor.Chapter three: According to the continental legal system, although company doesn't ultimately substitute for the concept of corporate body in civil law, however, in civil law's theory, it has already taken company as a model to explain the corporate body concept: in this period of time, because the company's corporative property has obtained its support of company's independent responsibility in independent process, the unprecedented conjunction of the corporation and the "generalized property" that originally used for shaping natural personality firstly proposed a proposition to the practicable usability of body corporate that "no property no personality" has, thereby, theoretically found the foundation that team personality must accord to law sociology's standpoint upon which property institution base. Therefore, the corporate body institution also has enjoyed its golden times - corporate body capitalism times. In civil legislation, the corporate body property institution which originally comes from special law- company law, reversely turns into a model for guiding corporative property institution in civil law. The corporate body which has highly independent property right and ability of property responsibility just likes an "Utopia" —body corporate appears similar to an omnipotent body and acts as tendency which a complete juridical association's demonstrate.Chapter four: However, correcting the extremeness in its transformation process, history always ponders over itself with reciprocation which reconsiders what has been pondered over. As the legislation in excessively-developing market economy country, on civil legislation around the drastic social change between former Soviet Union and Russian, the management right of corporate body in state-owed management enterprise has experienced from emphasis on economy and political independence function to restoration of the state-aid national property right, while the extension of state-owed enterprise has greatly shrinked. Pushing another set of corporate body property institution quite different from what state-owned enterprise has, corporate body has been established via privatization movement,which makes the state-owned enterprise----- non-modern enterprise's social functionorientation pattern different. The model effect in state-owned enterprise's corporate bodyproperty right also has been attenuated on civil law code. Since our country carry on reform and opening policy, reform of state-owned enterprise has walked up to the same direction but different path of Russian. Directing by the same theory of "dichotomy of power", our reform of state-owned enterprise attempts to intensify the effort by working harder which involved in enterprise corporate body property's all kinds of "features". Nevertheless, there is significant difference of the dichotomy of power separation theory between our state-owned enterprise and western company system. Therefore, it is obstructive that using this theory to shape corporate body property institution. Based on dichotomy of power separation, government's administrative intervention power is further stripped, namely separates enterprise from administration and strives for maintaining the promise of its state-owned condition but turns it into modern enterprise of company system. By this way, Russian and China have went different way of self-reflection.Scend volumeChapter five: The shaping function of juridical person' s independent property system to juridical person's personality does not aim at the detailed legal relationship, but at requesting the lawmakers to assort related possession rights ability to certain kind of juridical person adapt to his social effect in macroscopic. Only in this angle can the proposition of "without independent property without juridical person's personality" be right.However, we must go against the comprehension that all juridical persons ought to have independent and overall possession rights ability and independent obligation ability that summed up from the development of corporation law and tally with the unearthly request of "perfecting juridical person". If the require of juridical person's estate is too much, the opportunity of adjusting the large amount of comparatively incompact caste with juridical person system structure will be lost, and the strength which contacts the intramural of a society will ebb, the system of civil principal part will be complicated. From the furthest periphery, if the foundation of joint ownership possession system is possessed, the juridical person can get its personality. In the details, that is all combinations of main bodies accord with the require of joint ownership, can be regarded with having obtained juridical person's possession system foundation; minify the effect of independent possession obligation in shaping juridical person's qualification of a main body, make some necessary withdrawing in the ways of extreme perfecting in juridical person's development, so that repeated constructing outside of self-contained juridical person system can be prevented. Juridical person's personality rights are the concepts that were brought forward with the course of"perfecting" juridical person, highly independence of juridical person's personality, and compared with natural person's developing track which is from "dressing warmly and earning his fill" to "comparatively well-off and to his dignity. Although juridical person's acts of fetching personality rights can be regarded to be the embodiment of juridical person's getting close to natural person's position of main body, but after comparing with the trace of development of natural person's personality rights, juridical person's personality rights can't copy the spiritual trace routed in natural person's personality rights, only property can be the main clue. In fact, juridical person's personality right is a special type of its property right.Chapter six: In the history of juridical person's possessions system, members of a juridical person always shape different kinds of requirement about rights. The requirement directly restrains the formation and exertion of independent property rights of juridical person, and become the source of strain that inhibits juridical person's property to serve for its member's advantage. In order to both retain this press and keep juridical person make efficient control of its property, especially in well-knit productive juridical association such as corporation, the character of juridical person's member rights such as "member's creditor rights" and "member's ownership" has always been fiercely argued in theory. As for the same kind of juridical person such as corporation, either creditor's rights theory or ownership theory will obstruct it to possess the absolute rights ability of acquiring the whole property in exterior legal relationship. So both theories about juridical person's member rights are not directly intervene the formation of juridical person's exterior property relationship. But only form the difference of guiding attitude of interior juridical person member's advantage protection. However, both theories have virtual distinguishing function that can lead to different exterior legal relationship for different kinds of juridical persons such as stateowned enterprise and corporation.In the following, the article analyses several important types of juridical persons:In the corporation, the concept of "possession system" should be of effect, the scope of member should be extended, and under certain conditions, laborer should be absorbed into the scope of member again.As for stateowned enterprise in our country, possessions of it are for all the people represented by the state . hi the ways of continuing drawing out the chain of investment and re-investment of stateowned enterprise, obstructing public power with independent juridical person property rights that serve as medium, in order to realize the new reformation of property rights called "separate governmental functions from enterprise management", can't attain the anticipant effect. What's important is not perish the obstruction of administrationpower in stateowned enterprise, but make the administration power in enterprise to be of well use from the politics system reformation.And the state structure can be explained as juridical person, but it is mainly used to benefit people of the country equally and effectively from the state-owned property with function of advantage diffusion of juridical person's independent property obligation system.In the countryside, the practice mode of collective ownership of land is in fact a kind of juridical person ownership. Member rights of peasants as members of juridical person have inborn feebleness. So reformation of land system can only take the form of consummating interior advantage diffusing mechanism of juridical person ownership in countrysideChapter seven: From macroscopic, juridical person that is set between public and private force, can also avoid the repeated contests of property view between extreme nationalism and extreme individualism according to the unification of intensive and diffusive function of individual behalf of juridical person's independent property system. It can be seen that, since 20th century, the furious social revolution displayed its great transforming power, and at the same time showed people that the extreme measures ought to be used only when it has to be. But if it's possible, take certain middle conciliating means has become common method to make social progress; no matter it is under capitalism or socialism system. Reflected in civil law, it is socialization of property law. And this kind of socialization is neither nationalization nor individualization, but taking over advantages and throwing away disadvantages of the both. So that juridical person can get the property, which will become the golden mean of conciliating property law between socialization and extreme privatization. Although juridical person system itself was not so sound in history, it was properly rooted in public rights and took part in private domain, which absolutely can serve as the character of "make-peace" in the combat of public and private field as long as the framework adjustment of its property system is made and the above modal function and essential function are efficiently matched. In this way, the design of juridical person system can be set free from the swing of two extreme theory called "theory of juridical person intimidation" and "theory of juridical person omnipotence", and the mechanism to keep the safety and efficiency of juridical person can be found. Find the historical chasten of juridical person without soul as the human nature discussing of natural person. This is the framework regulation of juridical person property system.3. New viewpoint and methodolodyJuridical person obtained its status today without experiencing "suffer of soul" as naturalperson did, what has been lost is the "history" concealed by today's indifference, leads to today's indifference but originally not indifferent. Wasn't it fiercely discussed in history about the nature of juridical person? Every essential kind of juridical person is not only the exclusive judgment of facts about juridical person's character in scholars 'eyes. It also expresses its backers' different modes of valuation such as expectation, misgiving etc about the team property conduction of human according to use of juridical person. It's not only the harvest scholars engaged in idle theorizing about certain phase of history between 19th and 20th century, but also scholastic conclusions about various "stories" of juridical person that really happened in history. These conclusions maybe have obtained the periodical conclusions about the movements of making codes for western civil laws that exactly exists a history of juridical person system, but for China who is lack of assured history of civil law, neglect its historical process but just looking for consistence in final result of contests may invite many problems. For Chinese Civil Law, the tide of juridical person has changed from "can do" to "really works" that can't be reversed. Juridical persons' independent property system has become the main impetus of socialization of property law, but it can never be the simple deeds without the base of historical review of juridical person system. Find the advantages and disadvantages and then we can develop the former and avoid the latter. This article doesn't pick up the theory of juridical person's character, for I've found the so-called "juridical person's character" is no other than a different opinion about different estate of the combination of juridical person and properties. So I directly take juridical person property system, analyses the occurring mechanism of its function from a historical view, and then deduce the basic attitude towards juridical person system in modern Chinese civil law that we should take . It is the "discriminating attitude": use it when needed, suspect it when uncertain, doubt it while use it. Furthermore, according to the framework adjustment of juridical person property system, we can "use all while use it", preventing the institutional waste of "neglect it when needed". And "suspect it when uncertain", limiting the happening of negative effect.
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