On The Right Of Charitable Donators

The traditional ideology and legal systems usually paid much attention to the donations and assistance to vulnerable groups in the society, stressing the protection of the rights to life of these people. Under such conditions, both the government and the ordinary people advocate devotions to charities while neglecting the rights of donators. Those who are benevolent show much generosity in case of various accidents and disasters, donating large sums to charities through all kinds of intermediate organizations, but the donated money is usually embezzled and misused during the management process, the public trust being greatly depressed. As for the direct donation, such as the incident of Jeanswest Building of Tsinghua University, the named donation is suspected of being commercialized. The financial scandal of China Charities Aid Foundation for Children has once again challenged the public trust for charitable organizations. The facts show that every incident about charity will stir up much trouble so we need to worry about the future of China’s underdeveloped charities. When we try our best to find out the reasons for such phenomena, we know that the rights of donators have not been protected in a proper way. Therefore, the following questions are worthy of consideration:Have the charitable donations really played the role expected by the donators? How can the donators make sure that their charitable donations are used in the expected ways? What kind of rights and interests do the donators enjoy? Are there any remedial measures available to donators when their donations are handled in improper ways? Can the donators enjoy some rights in connection with private interests during the process of charitable donations? Taking these questions into consideration, the author decides to title this dissertation On the Rights of Charitable Donators. Besides the introduction, this dissertation is divided into7chapters.Chapter one focuses on the general interpretation of the rights of charitable donators. After analyzing the meanings of charitable donation from the perspective of etymology and comparing different ideas of the academia, the author puts forward the definition of charitable donation. Charitable donation has the characteristics of both private law and social law. After analyzing the meaning of charitable donator, the author discusses the rights of charitable donators, summarizing the characteristics of such rights, namely, the right subjects are extensive, the right contents are comprehensive and the rights are divided into different stages, and so on. In essence, the rights of charitable donators are a combination of private rights and social rights, property rights and personal rights, substantive rights and procedural rights. From the perspective of social ethics, social profits and social democracy, the rights of charitable donators are in accordance with moral norms, being able to push ahead the overall social interests and the process of democracy.Chapter two focuses on the historical evolution and prospects of the rights of charitable donators. Based on the practices in both US and Britain, in which charities are comparatively well-developed, the author divides the development of charitable donator’s rights into four phases, namely, the forming stage (prior to the middle of the18th century), the establishment stage (from the late19th century to the middle of the20th century), the expansion stage (from the late20th century to the end of the20th century) and the prosperous stage (from the end of the20th century up to now). Generally speaking, the rights of charitable donators were not paid much attention to at first, and then conformed to a certain degree, and at last gradually expanded. Even though the process is full of repetitions and setbacks, the case of Smithers v. St. Luke’s-Roosevelt Hospital Center in Unite State is a landmark case, during which the cause of action by the donator is firstly acknowledged. From then on, the rights of charitable donators experienced unprecedented expansion. On the other hand, the development of China’s charitable donator’s rights has not entered the prosperous stage. From the perspective of historical development, the author finds out some development tendencies. For example, the rights of donators are not thought highly of at the beginning but are gradually acknowledged, and legal rules are at first scattered but are gradually consolidated, the donator’s rights are at first in contradiction with related rights but are gradually able to co-exist.Chapter three and four focus on the rights of donators in detail. The rights of charitable donators can be divided into such two categories as those directly related to charitable purpose and those indirectly related to charitable purpose. Chapter three focuses on the justifications for such rights and the due rights of donators. The author thinks that the rights directly related to charitable purpose include the right to the realization of donation purpose, the right of action, the right to know, the right of supervision, and the withdrawal right. After summarizing the doubts and oppositions from the academia, the author analyzes the justifications for donator’s rights. The rights directly related to charitable purpose can be divided into fundamental rights and derivative rights. The author has not analyzed all these rights in an equal way, on the contrary, the right to realize donation purpose and the right of action has been discussed in detail. Also the author discusses the detailed contents of these two rights. Chapter four focuses on the rights directly related to charitable purpose. Firstly, the author discusses the right to name, which has the characteristics of personal rights. There is currently lots of criticism for the right to name, so the author analyzes the justifications for the right to name. The right to name shall be supported when some conditions are satisfied. And at the same time, the right to name shall not be perpetuated. On the other hand, the right to tax preference is also worthy of detailed discussion. Some scholars are critical of the right to tax preference even though such a right generally exists, so the author discusses the justifications for the right to tax preference. At last, the author analyzes the right to voluntary donation, privacy, and the right to withdrawal from the ought-to-be perspective.Chapter five focuses on the conflicts and balance of donator’s rights. Because of the conflicts of interests, values and roles, the rights of donators sometimes conflict with social rights, public rights and even private rights. In essence, these conflicts are caused by the scarcity of resources, the nature of rights and the uncertainty of law. Then the author puts forward some basic principles for the resolution of these conflicts, such as public interests being preferred, autonomy of the will and proportionality under the guidance of law reservation. Accordingly, the conflicts can be resolved through legislation and judicial activities.Chapter six focuses on the exercising of and remedies for the rights of donators. Donator’s sense of rights is the prerequisite for the exercising of donator’s rights, and besides the due process, some fundamental principles shall be followed, such as the combination of autonomy and legitimacy, the combination of purposes and instruments, and the combination of universality and differentiation. As for the remedies for donator’s rights, the author firstly analyzes the meanings of such rights, and then discusses such key points as classification, efficiency, timeliness, and so on. Accordingly, the author thinks that the main remedial methods include private remedy, medium remedy and judicial remedy.Chapter seven focuses on the legal status quo and some possible solutions. Currently the main problems are as follows:the available legal norms being scattered, the donation modes being dominated by the government, the lack of right categories, the inefficiency of right protection mechanisms. In order to protect the rights of donators, some principles shall be strictly followed, namely, uniformity, public interest, equality, and availability. At the same time, the legal norms shall be sorted out, the role of the government shall be remodeled, the competitive environment shall be created for charitable donations, and the legal protection shall be differentiated in accordance with various rights. As for the protection of the rights directly related to charitable purpose, we need to define donation purpose in detail, acknowledge the right of action, guarantee the right to know, implement the supervisory mechanism, and specify the right to withdrawal. As for the protection of the rights indirectly related to charitable purpose, we need to specify the standards for the right to name, reform the tax preference system, and improve the concerned legal norms.