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Chinese Societies Legislation Of The Civil Society Perspective Study

Posted on:2011-03-02Degree:DoctorType:Dissertation
Country:ChinaCandidate:W GaiFull Text:PDF
GTID:1116360305497340Subject:Civil and Commercial Law
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With the Chinese market economic system gradually developing and the opening expanding,contemporary Chinese society is just in the transition related to economics,politics, society, culture and many other fields. Chinese civil society, which has taken shape and is presently developing, is undertaking very important historic mission in this process.As organizational forms and backbones of the civil society, social organizations have made rapid development in more than thirty years of Chinese opening up reform, playing an indispensable role in the process of promoting the construction and development of Chinese civil society. Nevertheless,Chinese social organizations are in the difficult position, facing with both external and internal problems.This has been greatly hindering the healthy development and considerable growth of Chinese social organizations,damaging the active effect it has in the process of promoting the development of Chinese socialist civil society. Among them, the legal dilemma is the most pressing one. Only the social organization legislation is timely amended,supplemented and improved, can the freedom of association be fully implemented, and the social organizations break away from other dilemmas and gain access to new developments, which providing better service to the socialist modernization construction.Based on the theory of civil society,taking the civil society theory of Marxism as a guide, the construction and development of Chinese socialist civil society as the background, this article starts discussion with regard to the close ties among social organizations,civil society, civil law and the countries,insists on to promote Chinese socialist civil society further, how to cultivate and advance healthy development of the social organizations will be the key issue.Under the framework of civil society theory, the result of freedom of association is the formation of associations.Associations are the organizations and vectors of civil society, being the indispensable backbones of the construction and development of civil society.And the development and flourishing of civil society can make up deficiencies in public management and service in some degrees.The positive interaction and cooperation between civil society and government plays a very important role in promoting the development and progress of the society as a whole. At the same time, in order to realize the full implementation and specification of freedom of association of civil society, the path of rule of law should be followed. And the balance between the freedom of association and the standardized administration should be kept through the legislation of association.Stones from other hills may serve to polish jade. With the view to improve Chinese legislation of association, this article selected Germany, Japan, England and America as the comparative study objects, whose associations and legislations are highly developed and representative. And researches are made on the history and current situation of associations.German environmental protection organization, Japan Takatori community center,British federation of voluntary organizations and social enterprise,American agricultural cooperatives are selected as the objects of case study, so as to conclude the common law of the development of associations, and the important roles played by associations in the process of promoting the development of civil society, and the importance of government policy support and of a sound legal environment in promoting the development of associations.On this basis, this article researched the association legislative framework, legal forms,establishment models,governance structure,financing models and profit prohibited duties of the four countries, so as to find out legislative experiences worth learning.At the same time, this article briefly probes into the development history of Chinese associations,pointing out that although there did not exist the large-scale independent civil society organizations in true sense before the reform and opening up in our country, the tradition of association and culture still have far-reaching impact on the contemporary development of associations.And then it focuses on the analysis of the development of Chinese associations, and the current situation, problems, and the main reasons of the legislation of Chinese associations.It points out that nowadays the Chinese associations have played a positive role in promoting the construction of the socialist modernization and the development of civil society. However, there are some problems as well.These problems include the qualification and legitimacy of civil subjects,the independence of the associations, their ability of the internal governance,social credibility, the sources of fund, and the level of policy advocacy force. These are directly or indirectly related to the legal environment which the associations live in. In order to solve these problems,the associations should be free from the dilemma of the current legal environment,so that they can continuously improve their abilities and levels to provide a legal protection for the development of civil society. Based on the above, it analyzes and summarizes the current situation of the Chinese associations, including the legislative framework, legal form, establishment models, governance structure,financing model and profit prohibited duty.On the same time,it also analyzes and summarizes the legislative problems of the associations,pointing out that the main problems are the absence of the basic law of associations, the loss of main qualification of the unincorporated social organizations,the difficulty in obtaining the legal status of associations, the lack of the operational regulations of governance structure,the restriction of the rights of financing and fair competition, and the lag of the legislative concepts.In order to solve these legislative problems,we should change the legislative concepts first,focus on cultivating and promoting a comprehensive development of associations,respect the fundamental rights of associations,establish the legal status of the corporate social organizations and the unincorporated organizations including the unincorporated social organizations in the civil subject of civil code. And then we should enact the law of social organizations in time, and establish a sound legal system to implement and regulate full freedom of association. Meanwhile, it emphasizes that the lack of independence and comprehensive capacity which need to be improved have impacted on the level of the construction and development of Chinese socialist civil society. So the core mission of the legislation of association is to enhance the independence of associations,and to promote the healthy development of associations. Therefore,the internal governance structure,the rights of financing and fair competition should be regulated clearly and concretely in the law of social organizations in order that more independent associations in the sense of civil society can be fostered.On the basis of a clear general idea of the legislation of association, this article analyzes the actual situation and objective demand of the developments of civil relationship, and points out that in the general civil code the civil subject qualification of the corporate social organizations,and especially the unincorporated organizations including the unincorporated social organizations should be defined,establishing the main civil ternary structure, including the natural person, the legal person and the unincorporated organizations.Moreover, the legal person should be divided into the for-profit legal person and the non-profit legal person according to the standard whether it is for-profit or not. And the non-profit legal person should be divided into the common well corporations and the mutual benefit corporations.While the corporate social organizations are divided into common well corporate social organizations and mutual benefit corporate social organizations.The unincorporated organizations legislation should adopt the legislative model combining the civil code and slip laws. The unincorporated organizations should be divided into for-profit unincorporated organization and non-profit unincorporated organization.The former refers to the parternership enterprise and so on, while the latter refers to the unincorporated social organizations.These should be the basis of making the law of social organizations.On the basis of regulating and positioning the social organizations qualification in civil code, it is necessary to make the law of social organizations to regulate the concrete rights and obligations,providing a legal basement for their activities. Therefore, the law of social organizations should be a civil slip law based on rights, and the legal problems it should solve first are the establishment models and conditions, the rights and obligations of the members, the internal governance structure for the incorporate social organizations,property relations, fundamental rights and liabilities and legal responsibilities.Through reducing the standard of the access conditions,we should change strict dual licensing principle and promote more social organizations to gain legal personality or become lawful unincorporated social organizations, participating in the civil activities.In accordance with the general problems and the lack of substantive law in the development of associations in our country, this article brings up some overall concepts and specific recommendations about the basic framework and important legal issues of the law of social organizations as follows:The basic components and structural arrangements are:Chapter 1 General Rules includes the purpose and intent of legislation, prohibited conditions of the establishment of associations, and the definition of associations, capacity right, name, and residence. Chapter 2 Establishment and constitution, includes the originators,the necessary items recorded in constitution, the application, registration, and pre-registration activities.Chapter 3---Membership includes the number, obtainment and loss of membership, and rights and obligations. Chapter 4---Organization and Operating mechanism includes the settings and operating mechanism of the general meeting, council,and board of supervisors.Chapter 5---Mission, Rights and Abilities,including the purpose of establishment,basic rights and liabilities.Chapter 6 Property includes the constitution,ownership, management,expenses,and disposal after termination of the properties.Chapter 7---Alteration and Termination, include the combination, separation, dissolution and settlement.Chapter 8---Legal liability.For different types of associations,the law of social organizations should set up different establishment models from loose to strict and sufficiently respect the principle of freedom of association. As to the arbitrary unincorporated social organizations which are not intend to gain civil body qualification, the establishment model of liberalism should be adopted.As to the unincorporated social organizations and the social organizations of mutual benefits, the establishment model of guidelines doctrine should be adopted. As to the common well corporate social organizations, the establishment model of single permission doctrine should be adopted.On the basis of respecting the autonomy of associations sufficiently, the law of social organizations should provide necessary guide and complementarities of arbitrary regulations about the affairs of associations. Thus in the case of lack of relevant provisions in the constitutions of associations, there will be supplementary regulations as the legal evidence.These regulations should include the conditions of obtainment and loss of membership, rights and obligations of the members,operating mechanism of the organization, etc.The basic rights and liabilities of associations should be regulated clearly as well.This article focuses on the two rights which are directly related to the survival and development plans of associations, based on the issue that the rights of financing and fair competition are confined in the current development of the associations.Through researching and summarizing the abroad experience on the relevant legislation and combining with the actual situation of the associations in China, with regard to the financing right and profit prohibited ability, the law of social organizations should regulate according to the different types. Attached conditions of permission should be applied to the common well corporate social organization to establish the right of directly engaging in commercial activities to raise revenue within the scope of operational activities,so as to help the common well social organizations get out of the financial difficulties.At the same time, five basic principles should be established, including limiting the scope of the principle of commercial activities,complying with the principles of business laws and regulations, the principle of conditional tax incentives,the principle of risk controlling and prohibition of distribution, and the annual minimum expenditure system as well.Thus we can establish the guiding and compulsory regulations aiming to regulate the commercial activities of the common well corporate social organizations.The main reason is that the public nature of the common well corporate social organizations determines that they can gain more support from the state and the society, so they should accept more strict administration and supervision.However, the principle of prohibited doctrine should be applied to the unincorporated social organizations and the mutual benefit corporate social organizations, in order to limit the profit-making business activities within the scope allowed by the existing legal provisions.The right of the fair competition among the associations should be also admitted. Meanwhile, the restrict competition regulations at present should be changed to admit and protect the fair competition right of the associations, in order to prevent a part of associations from using the status of monopoly to gain profits, even affect the credibility and quality of service or cause other social ills.Moreover, through the fair competition between the associations,it is good for them to keep survival of the fittest,and promote associations to constantly improve their own abilities and service level.Only in this way, can the excellent ones stand out from the crowd and offer good advices and suggestions for our party and government.The associations should undertake legal liability for debt of themselves. With regard to the members, the type of liability they undertake is decided by the legal form of the association they belong to. As to the corporate social organizations,their members should undertake limited liability.As to the arbitrary associations,their members should undertake unlimited joint and several liability for the debt,because the associations are not a legal person or unincorporated organization. And the regulations of individual partnership may be applied to the arbitrary associations,and the arbitrary associations can not enjoy tax incentives. As a kind of unincorporated organization, the legal ability of unincorporated social organizations who have already obtain qualifications of civil subject through registration should be regulated and draw on the latest regulations of the countries whose non-profit sector is well-developed, such as Germany and America. And the constitutions should request the representative person undertake the obligation of limiting the debt within the property of the unincorporated social organizations.The principle of piercing the veil of associations should be established as well,in case of the representative person violating the law or the constitution, the representative person should be asked to undertake legal liability for the debt.While other members who do not have direct controls on the issues of the organization, only undertake limited liability, so as to avoid that the non-profit nature and absolute unlimited joint and several liability may hinder the development of the unincorporated social organizations.This article also stresses that the improvement of legislation of association to create a sound legal environment for constructing and developing the Chinese socialist civil society will not succeed without the powerful support of the Communist Party of China and the government which is determined by the national conditions as well as the nature of the Party and the government.
Keywords/Search Tags:Civil Society, Freedom of Association, Legislation of Association
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