Researches On The Legal Institution Of Foundation

This dissertation researches on the Legal institution of foundation.The mission of this dissertation is to analyze the design of law institutions concerned to overall activities of foundation,from establishment to termination.We accomplish this task in seven parts,which is organized as follows.The introduction part goes first.We first present the background of this research and problems of interest in this part.Then we make a preliminary introduction on civil organization,an institution closely related to foundation,and current law institution in China,which leads to the significance of this research.After that,we overview the literature and methodology employed in this dissertation.Finally,the concept of foundation in this research is ascertained.It has to be noted that the law environment of this research is common law,at the meanwhile we refer to analogous laws or norms of countries for comparison.The first chapter gives fundamental theory of foundation,especially concept of foundation in common law.This work is done from two facets. For the intension of foundation,we make canonical classification of foundation according to its function and standard specified by the laws in worldwide countries and regions.For the extension of foundation,we compare institutions related to foundation in some degrees,such as association,public interested corporation,non-profit organization, charitable trust,and bankrupt foundation.We also introduce and evaluate the role non-profit organizations in modern society considering the fact that foundation is a law form belonged to non-profit organizations and they influence the society in similar way,suggesting it's necessary to focus on the functions of foundation in the design of foundation law.The second chapter is devoted to the establishment of foundation.The precondition of establishment is donation activity,the activity of establishment of a foundation.We introduce subject,nature,establishment and effectiveness,revocation of donation activity.We also introduce the form of donation activity.Considering the fact that foundation is founded conditioned on property,we analyze the meaning,confirmation and transfer of donated property serving as base of foundation.We also investigate the rules on the selection of foundation's title and institution arrangement related to government examination.We give policy suggestion for the government examination on the establishment foundation.In the third chapter,we discuss the operation of foundation.We state that the interest of foundation is the same as its contributor since there's no interest organ in any foundation.For this reason,foundation takes the constitutions expressing contributor's interest or will as its basis of operation.We especially discuss the establishment of foundation board,the administrative organ,the selection of board members and conditions,and the general rules of board's activities.We also introduce the law positions of supervise board,contributor,and beneficiary in the operation of a foundation.The fourth chapter analyzes the external supervision of foundation. The supervision of a foundation is made up of internal supervision coming from board,contributors,and beneficiaries and external supervision from government and society.We first explain the,fundamental theoretical issues related to external supervision,and at the meanwhile we analyze the supervision of administrative institution and law institutions separately. After that,we discuss the supervision activities of a foundation from the limitation on property disposal,design of accounting system,and information reporting system.As a special type of foundation,the supervision of public financed foundation is separately discussed in this chapter.At the end of this chapter,we give our policy suggestion on government supervision on foundation.We discuss the termination of foundation in chapter five.We discuss the reasons of extinction including common reasons for general legal person and special reasons for foundation.Next,we explain the procedure of insolvency and analyze the division of insolvent property.Comparing the five ways in the worldwide law on insolvency of foundation,we suggest the residual property after insolvency should be ascribed to legal person with same interest as the insolvent foundation.Finally,we discuss the split and merge of foundations.The last part of this dissertation presents suggestions for the future law design of foundation in China,including the selection of law paradigm, and the institution design for establishment,administration,and supervision of foundation.In the final part,we review our work as a whole and conclude this dissertation by illustrating the inefficiency in this dissertation.