On Cooperatives' Subject Attribute

Not only in developed countries but also in developing countries, as an important social and economic force, cooperatives play a significant role in society. Many a country, by improving relative policy and system, put emphasis on cooperatives'development and function more and more, and there is much consensus about cooperatives'fundamental principles internationally. In our country, the movement to organize cooperatives has a long history, but our country didn't treat cooperatives as economic subject or legal subject for a long time, however, treated them as political instrument for carrying out policies. The above reasons led to cooperatives'plateau development even to passing away, and now many organizations called"cooperative"have been departing from cooperatives'character. Since opening—reform policy, individuals each had been uniting to strengthen power and competence, which prompted farmers'cooperatives to spring up and developed at a great speed. They, however, had survived on the margin of law until"farmers'specified cooperatives'law of the Republic of China"was promulgated on October 31, 2006, which regulates farmers'specified cooperatives. In our country, however, there are a great number of rural specified technique associations, rural community cooperatives, credit cooperatives, supply and marketing cooperatives, consumers'cooperatives, housing cooperatives, and medical service cooperatives and insurance cooperatives at pilot, besides farmers'specified cooperatives. The above cooperative organizations, which are regulated by rules or regulations, are still short of legal status and have vague legal nature, which influence them to develop normally and soundly. Some cooperative organizations have merely the name"cooperative"but not the practice of cooperatives. Therefore, we should tell genuine cooperatives from those cooperative organizations, which will stimulate development of genuine cooperatives and direct cooperatives'legislation. So it is emergent to establish subject status of cooperatives in law.Based on relative theories of civil subject, using other countries'legislation for reference, the dissertation analyzes legal status of our country's cooperative organizations, and puts forward the suggestion of perfecting cooperatives'subject system in our country. By inspection and demonstration, in order to realize both theoretical value and practical significance, the dissertation is very useful for clarity of the theory of civil subject in our country, for conformation of cooperatives'legal status, and for guiding our country's legislation on cooperatives. The whole article is divided into four parts apart from introduction and conclusions. The introduction part states the topic's background and value, study method, and the dissertation's innovation. The conclusion part points out that cooperatives belong to middle legal persons and cooperative legal persons of civil subject, because cooperatives'legal structure responds to essential nature of civil subject, and embodies the requirement of subject ration. We should study and regulate cooperatives according to relevant theory and legislation of civil subject. Cooperatives'healthy development depends both on the clarity of their subject status in law, and on the government's support.The first part deals chiefly with cooperatives'concept, including sociological, economic concept, and concept in law. cooperatives'concept in sociology and in economy are the basis of their concept in law. By comparison and analysis of cooperatives'concept in other countries'cooperative act, the author generalize four modes to define cooperatives' law concept, and advocate that we should adopt the forth mode to define our country's cooperative's concept, i.e. cooperatives are legal persons which treat laborers as subject, pursue the principle of democratic control, autonomy, and self-reliance. The above concept includes both cooperative's basic characteristic and cooperative's nature in law, which displays that cooperatives have unique principles and value. By inspecting regulations of cooperatives'subject status in many countries'cooperatives acts, the author find that they almost treat cooperatives as legal persons. Legal persons can be parted into legal persons in civil law and legal persons in commercial law, but cooperatives'specific belonging is neglected. The part lays a foundation for demonstrating cooperatives'nature and conditions as legal subject.The second and the third part are the theoretical basis of the whole article. The second part is to define civil subject's meaning, nature and the relationship with commercial subject, and demonstrate mainly the meaning of groups'being bestowed on legal persons'subject centering on the opinion that cooperatives are legal persons. Subject in civil law means belonging qualification of civil rights and duties. Especially that subject in German Civil Code and other civil laws affected by German civil law expresses special emphasis on ration element. Having ration or not is the essential distinction between civil subject and commercial subject. Influenced by ration philosophy, German Civil Code implemented requirements of ration not only in Civil Code's form and structure, but also in all substantive systems. To solve the problem of co-existing of natural persons and legal persons in one framework of subject system, German Civil Code abandoned traditional"personality"symbol, but took"capacity for rights"having no ethics'nature as civil subject's symbol. On account that rational subject can be only natural persons, groups can merely apply theory of legal fiction to meet requirements of subject ration. Arguments of legal fiction and realism of legal persons'nature are to seek philosophical accordance at the precondition of admitting that legal persons are independent subject, so this argument doesn't influence independent subject status of legal persons.On the basis of the second part's demonstration, the third part points out that under ration standard, civil law confirmed groups'subject status for adapting the need of society and economy. But legal persons'subject qualification is not as a matter of course like natural persons. Only when groups have specific legal structure through complicated legislative technique, embodying independent will required by ration, and when groups'personality, will, property and liability are independent of those of their members, having conditions required by ration, can groups be given legal persons'qualification. Furthermore, the formula"ration-subject--will"decides that legal persons having independent will should bear liability independently, but legal persons'independent liability doesn't mean members'limited liability. As long as a group has independent will, material basis for bearing independent liability, and belonging name for rights and duties, it can be treated as a legal person. There is no inevitable connection between legal persons'subject attribute and members'liability type. Using legal persons'terms to judge cooperatives, we can conclude that cooperatives consist with legal persons'subject attribute. By analyzing cooperatives'place in legal persons'traditional theoretical classification and their legislative assortment of our country, the author advocate that cooperatives belong to middle legal persons of universitates personarum, and that legislators should increase a new type of cooperative legal persons in the General Principles of the Civil Law in force. We could see cooperatives'basic nature of autonomy, self-reliance, and democracy by comparing cooperatives with other organizations, so it is necessary to construct law system of cooperatives.The forth part applies the theory of subject attribute of cooperative legal persons to analyze cooperatives'current situation in our country, and to put forward plans for solving problems. Erroneous thought and mistaken practice influenced greatly cooperatives'healthy development in our country, which demands that we should learn from it when developing modern cooperatives. At present, many organizations called"cooperatives"do not genuine cooperatives in our country. Cooperatives should be"people-based"but not"state-based", and they are independent marketing subject. We should prevent cooperatives from being treated as instruments for carrying out country's politics and policy. Cooperatives are merely a type of subject. Although they do not have demonstrating meaning in Constitution, mistaken notion in our country's Constitution leads to wrong practice of treating cooperatives as collective economic organizations. The author suggest that legislators amend Constitution's corresponding provisions. Otherwise, there should leave space for cooperatives in future Civil Code, and we should enact one single law regulating all kinds of cooperatives using other countries'legislative experience for reference to give those cooperative organizations definite legal status. There is an international experience that cooperatives'healthy development depends on mutual function of law and policy. There is no exception in our country.