| The thesis mainly studies on Chinese foundations. Based on the structuralchanges in Chinese society and the method of individualism, this thesis uses themethods of legal sociology and analytical comparison, reflects on defects of currentlegislation model and the causes of this situation, proposes the adaptive mechanismsof foundations, at the same time, explores the internal structure, administrativeregulation strategies and social supervision mechanism and other aspects. The purposeof thesis consists of three levels: first, providing the system solutions on thefoundation’s dilemma; second, offering a new perspective for the development ofChinese community legal institution, and the last is shaping the localizationexperiences for Chinese civil society.By ways of legal interpretation and the empirical analysis, this thesis dissects themain rules and the effects of the legal system of Chinese foundations, which has anadministrative power-based character. Then we point out that it failed to achieve thepurpose of promotion, instead of causing a lot of anomie phenomenon in practice. Theformation of this pattern of specification has the historical and institutional reasons,which not only arised from the history of Chinese foundations, but also closely relatedto the organizational structure and organizational properties of the foundations. Wedon’t deny that the necessity and importance of the administrative control, but weargue that should keep the control purpose and control means to fit. Therefore, weadvocate the transformation from the administrative power-based mode to the privategovernance-based mode.The private governance-based mode has the nature of the validity and feasibility,and fits with the meaning of existence value and function of the foundations. First ofall, from the trend of international legislation, the private governance-based mode hasthe character of regularity. Then from the point of organization functions expected, ithas a strong purpose. Thus we can prove its legitimacy, whether experience point ofview, or rational point of view. Secondly, the private governance-based mode isfeasible. From the perspective of the development stage of foundation itself, itsalready have the ability of private governance, and to the donors, they are eager to seethe foundations govern itself. Finally, the private governance-based mode reflects the value of freedom, equality and efficiency, simultaneously, has important political,economic, and social functions. Therefore, the private governance-based mode has thefoundation of the transformation, because of the objective support and subjectivesystem root.With the establishment of the private governance-based mode, the internalstructure of the foundations needs to change. Based on Chinses experience and abroad,this thesis summarizes into three specific institutional arrangements:"Board ofDirectors center " mode ", Board of Directors-Board of Supervisors" mode,"Council–Board of Directors–Board of Supervisors " mode. Then through the comparison ofthe foundation of corporate governance model, this thesis reflects the existingproblems and causes. Meanwhile, this thesis focuses on the running situation of legalperson governance in foundations, with the reform exploration of Chinese Red Crossfoundation and Shenzhen One Foundation as the breakthrough point, we propose theadaptive choice for the structure.The private governance-based mode requires an adaptive administrativeregulation strategy. With a pressing demand of reshaping relations between thecountry and society, the administrative regulation strategy of foundations needs atransformation, that is, from "vertical subordination" into "horizontal partnership".This thesis argues that we should follow the principle of proportionality which basedon appropriateness, necessity and proportionality standard. On one hand, optimizingthe mandatory administrative measures, to transform the "Dual Control System" into"Linear Management System" in the access specification, and turn "AntecedentSupervision" to "Subsequent Supervision" in the supervision specification. On theother hand, improving the motivational administrative regulations, to establisheffective incentive mechanism and equitable financial support mechanism.The private governance-based mode emphasizes the role of judicial intervention.It is necessary that judicial power intervenes into the governance of foundations. It isdue to the limitations of foundation’s self-governance and the boundary ofadministrative supervision. Moreover, information disclosure legislation is not asexpected as to play a role. But judicial intervention must adhere to a certain extent, onthe one hand, the width shall be determined according to the scope of judicial powerintervention; On the other hand, the depth shall be determined according to therelationships among judicial power and administrative power and the independence offoundations. The innovation of this thesis expected in the first place is the approach toresearch, and the approach also decided the research topic and the innovation of theresearch content. Specifically, we follow two specific approaches: one is the "socialstructure changes and differentiation". This thesis argues that since China’s reform andopening up, the macro background of changes from "elemental identity society" to"heterogeneous pluralistic society" is to understand all the problems of the specificcontext of reality. A wide range of social mobility and differentiation of interestgroups, as a result of the reform, are the fundamental causes of the foundation.According to the intrinsic motivation, in the face of the inadaptability of thefoundation legal system, the necessity and possibility of the reform are emerged.Therefore, in this thesis, changes and differentiations of social structure are the basicpremises of institution criticism and institution construction. The second is"methodological individualism". The author believes that the individual constitutesthe ultimate unit of analysis in cognitive science, but also is the ultimate end-result ofall kinds of value. In the event that the purpose is ignored, all plans and decisions ofactors’ could not be understood. The individual is not passive recipients, but activecreators of the system, at least is a respondent. Based on this, this thesis emphasizes tosatisfy individual motives and interests, admits that the foundation is the organizationform of personal pursuit of public welfare purposes. Therefore, in the process ofsystem construction, considering maximizing promote individual achieve public goals,proposes that the foundation legal system should be implemented by "major ofheteronomy and auxiliary of autonomy" steering "major of autonomy and auxiliary ofheteronomy ". |
