Research On The Basic Issues Concerning Membership Right

With the establishment of various groups and organizations in modern society,group law rises constantly among numerous branch laws,and the binary subject structure of individual law and group law has taken shape gradually among the private laws,which,however,makes membership right more prominent than before.The research on the group law of Germanic law – another important origin of modern private law needs intensifying,compared to the in-depth research on individual laws stemming from Roman law.Correspondingly,the rights on individual law,including property right,intellectual property,identity right(right of relative)and personality right,have been researched in depth and the institutional building is relatively intact.By contrast,the membership right on group law,which involves multiple branch laws(e.g.civil law,commercial law and social law)and serves as footstone for effective operation of group law,is still very weak in the research on its basic issues at present,deposit the definite achievements that have been obtained in research on specific membership right,particularly the research on corporate shareholder's right,member right of rural collective economic organization and owner's member right in modern owner community as well as the research on shareholder's right that becomes the hotspot of theoretical research.It is not only obviously in disconformity with its significant status and value but also goes against the guidance for research on specific membership right in the long run.Without the basic theory guidance of membership right,the research on specific membership right can be hardly deepened,letting alone reach theoretical consensus.In view of the above situation,this paper sorts the history and current status of the basic issues concerning membership right,observes it both statically and dynamically,and makes general and individual analysis,and theoretical and empirical survey based on the distinguishing between individual law and group law and the basic principle of group law and tries to establish a basic theoretical system of membership right complying with the Chinese situation and the basic principle and system of private law.On that basis,this paper,this paper discusses the possibility and specific arrangement of including the membership right in civil code that is under preparation in a designated chapter.Besides introduction and conclusion,this paper includes eight chapters in total.The specific contents:Chapter 1 – “Discussion on the Category of Membership Right”: This chapter focuses on the issues such as what membership right is and how to understand membership right,which should be the logistic start point to study membership right.Different from rights on individual law,membership right is the right on group law.In order to know membership right well,such concepts as “society”,“group”,“member”,“corporation”,“individual law” and “group law” must be defined clearly so that the membership right can be defined scientifically and reasonably.Compared with private right on individual law,membership right has characteristics of modernity and advancement,comprehensiveness and multi-dimension,substantiality and procedure,profitability and non-profitability,instrumentality and purposiveness and property and non-property.Membership right can be classified differently according to different division standards.Membership right is a kind of very important right of private law,whose emergence and development change the pattern of traditional civil right system,breaks the monopoly that personal right and property right have conducted upon civil right and arouses a revolution in civil rights;it,to some degree,promotes the return of civil law from contract to identity,makes up the deficiency of traditional adjustment mode of civil law effectively,enhances the adjustment and leading functions of civil law for social life and boosts the transformation of modern civil law into modern civil law vigorously.Membership right,also as a kind of very common private law right,basically covers the major aspects of city and village and economy and life and nearly involves the rights of every one,making it a heavyweight in daily life.Meanwhile,membership right is also an important tool and powerful way of urban area governance and division reform of agricultural land ownership,contract right and management right and the important legal right of advancing the modernization of national governance system and ability so it has pretty important realistic significance and far-reaching historical significance.The terms “membership right” and “member right” are nothing but appellations superficially but they are about the essential theory of membership right behind;therefore,member right cannot be used to replace membership right,so as to avoid mess in theoretical level.Chapter 2 – “Evolution of Membership Right”: This chapter introduces the development and evolution of membership right in private law history,for only when knowing the history of membership right thoroughly,can we master its presence and future better.Along the development of private law for thousands of years,the evolution of private law right is an important clue exploring the development of private law.Generally speaking,the private law is developed and evolved from simple to complex,from low to advanced,from bidirectional to multidimensional,from gradual substantiation of procedural rights to constant sequencing of substantive rights,from rights on individual law to rights on group law,from the unidirectional transformation from identity to contract to the bidirectional transformation of contract and “identity” and from slavery to artificial intelligence(AI).The most prominent development characteristic of private law rights in modern times is the generation and development of membership right.By focusing on the basic principle of group law – independence and separation of group personality and membership(member)personality,this paper analyzes and investigates the failure in distinguishing group personality and member personality under the individualism standard of Roman law and group itself is considered as independent individual.The biggest difference between Germanic law and Roman law lies in groupism standard orientation.Group and group members are also explicitly defined in Germanic March Community so that group personality and member personality become independent and separated.In Germanic law,March Community is a kind of community relationship actually,is represented as “collectively owned” in terms of nature of law and still under the ownership segmentation stage.Despite the strong group law factor,it has not been updated into an independent group law yet.Nevertheless,it must be admitted that compared with Roman law,group member right in March Community of Germanic law can be regarded as the earliest sign of membership right.The legal history event in connection with group law generation also involves the appearance of legal person system of canon law.From the generation background of legal person system of the canon law,legal person,however,is still considered as the product of fiction,without independence or separation of group personality and member personality.Group law was formally generated after the prosperity of modern capitalist economy and its earliest sign can be dated back to the appearance of corporate system and generation of shareholder's right.German Civil Code,which was formulated in 1896 and took effect from 1900,finally contributes to the generation of membership right as it specifies the membership right in general sense initially from the perspective of group law.Legislative stipulation about the membership right in German Civil Code is imitated by many civil law system countries,with far-reaching significance.Anglo-American legal system and civil law system have the shared source of legal history;legal person system also plays a significant role in Anglo-American legal system,particularly in the legislation of company law,and leads the world's trend.But Anglo-American legal system neither involves the so-called division of corporation aggregate and foundation nor the membership right in general sense and is more about the specific membership right legislation of diversified forms.In the law reform that happened in the late Qing Dynasty,China mainly learned and absorbed German legislation through Japan and the provisions about membership right were explicitly specified in the civil law and company law promulgated by the Qing Government.The civil code promulgated during the period of the Republic of China still followed the trend: The general sense of membership right is specified in law compiler chapter of the civil code,which is still applicable in Taiwan,China.Complete Book of Six Codes of Nationalist Party was abolished after the founding of new China.As a result,there was no general private law available nearly for a certain period of time except for some laws such as Marriage Law and membership right disappeared as well.Since the reform and opening up,China has established its legal system of socialism with Chinese characteristics preliminarily with development and improvement of socialist market economy,and the branch legislation(e.g.civil law,commercial law,company law and economic law)becomes very active.Although there are no general provisions about membership right in General Principles of the Civil Law of the People's Republic of China and General Rules of the Civil Law of the People's Republic of China,long-term progress has been obtained in the legislation of membership right,which is typically represented by legislation of corporate shareholder' right,owner's member right,membership right of rural collective economic organization and membership right of farmer specialized cooperative.Chapter 3 – “Type of Membership Right”: This chapter sorts and analyzes various types of specific membership rights in existing law and social reality.Since they are blended into individuals which reflect the general situations,it is necessary to sort out the legal attribute and right contents of various specific membership rights available preliminarily,discriminate those specious forms of rights,and determine the rights nature of group law of membership right further in order to discuss basic issues of membership right comprehensively.Different from private law rights of individual law,membership right is the product built through concrete thinking.Though the general rules about membership right contain a hint of abstract thinking,the building of the concrete right rules of membership right,on the whole,is still based on different groups and the features of specific membership rights is obvious.Therefore,type theory plays an important role in building membership right system,and it is of little significance to discuss the meaning of membership right abstractly.Meanwhile,a membership right system is established through type theory,so as to summarize the general rules of membership right better in an abstract manner.In the membership system,corporate shareholder's right has been the most complete and typical membership right by now and provides guidance and reference for other types of membership rights.Owner's member right is an important form of rights in modern owner community life.Different from the exclusive right and joint ownership in the building differentiation ownership,it is the important right for building a harmonious and favorable owner community relationship and the understanding on the importance of owner's member right needs further intensifying.Member right of rural collective economic organization is also an important and typical membership right and in particular,attracts high attention in the “division reform of agricultural land ownership,contract right and management right” that is boosted at present,making it the hotspot of theoretical research.Planned economic system was implemented for a long time after the founding of new China.The cooperative economic organizations in the nature of collective economy were relatively developed,and still remain after the reform and opening up,particularly after the establishment of socialist market economy system,by absorbing some market economy elements.These cooperative economic organizations mainly include farmer specialized cooperative,credit cooperative,joint stock enterprise and rotating savings and credit association,etc.With respect to the membership right of farmer specialized cooperative,special adjustment has been performed in the form of Farmer Specialized Cooperative;with rich contents of rights,the membership right of farmer specialized cooperative is the typical membership right representative of cooperative economic organization.Membership right of credit cooperative has been always adjusted by special laws,most of which became companies after system reform of credit cooperative,and accordingly,the membership right of credit cooperative turned into the corporate shareholder's right.The membership right of joint stock enterprise has the attribute both of corporate shareholder's right and membership of general cooperative.The member right of rotating savings and credit association is also a kind of specific membership right which has not been recognized by laws yet.In addition,some specific membership rights also exist in other body corporate,including market intermediary organization-the important subject on economic law.In the organization there are also lots of forms of membership rights,such as the member right of industry association.With voluntary service idea winning more popularity,significant progress has been made to charitable and voluntary legislation and part of the volunteer's rights belongs to membership right.Consumer's right in consumer law does not belong to membership right and consumer's membership right generates only in consumer group established by consumers.The membership right in the current popular club and membership marketing mode is indeed not the membership right in the group law sense due to its lack of the foundations for group law,although it seems like membership right superficially.Rights of trade union member and Party member are the membership right in essence,despite definite color of public law.Chapter 4 – “Essence of Membership Right”: This chapter introduces relevant theories of membership right,evaluates the views on the legal nature of membership right and explicitly puts forward the basic attribute of membership right.Membership right,as a kind of basic private law right,has been acknowledged and confirmed by most of mainstream scholars and reflected in legal system to different degrees.Only a tiny minority of scholars do not acknowledge the existence of independent membership right,who believe the so-called membership right is indeed the relationship of rights and obligations of individual members in individual law and ignore the membership(member)status of members in group and the difference between natural person and legal person(legal person is a member of group)in individual law.Negative theory of membership right was stemmed from the fiction theory or denial theory of legal person theoretically and overemphasized the individual independence and freedom.It believes that group means suppression of individual independence and freedom,without realizing that the group freedom is a freedom status higher than individual freedom and the advanced stage for development of individual freedom.Even more,there are a variety of views about the nature of membership right among the positive theories of membership right.The current views about the nature of membership right include the ownership of membership right,creditor's right of membership right,identity right of membership right,personality right of membership right,dominion right of membership right,claim of membership right and formation right of membership right,all of which have their own characteristics and reveal the essential characteristics of membership right to a certain degree but are incomplete and overgeneralized and could hardly reflect the membership comprehensively.This paper observes and analyzes the membership right nature from the perspective of the whole private law,and based on the reality about the co-existence of group law and individual law in private law system,explicitly puts forward that the membership right is basic private law right paralleled with property right,personality right,identity right(right of relative)and intellectual property,naturally extends the association freedom of the constitution in private law and is the emerging and independent private law right and also the private law right with equality nature.With respect to the reality of the difference between group law and individual law in private law system,this paper explicitly describes that membership right is private law right in group law;different from the private law right of individual law,it is private law right compatible with both statutory and contractual rights,private law right with collection nature and the private law right both of relativity and absoluteness.This paper also explicitly proposes that membership right is private law right with strong procedural factor from the view of the separate substantive law and procedural law in private laws system.Different from the separate exercising of substantive right and procedural right of individual law,it is the private law right compatible with substantive and procedural rights and a private law right of self-protection and self-relief.In the above three attributes of membership right,group law attribute is the essential attribute of membership right,decides the rest two natures and exerts profound influence on exercise and remedy of membership right;it shapes the character of membership right truly and serves as the essential reason why membership right could become the basic private law right.Chapter 5 – “Composition of Membership Right”: This chapter discusses the internal composition of membership right and criticizes the traditional binary division of self-benefit right and common-benefit right of membership right;this chapter also proposes that the division of rights shall not be purpose-oriented but shall follow the general standards of contents-based right division of private law right theory and clearly brings forth the membership right trichotomy of individual law,property right and procedural right of members.The membership right trichotomy was put forward focusing on such typical membership rights as corporate shareholder's right,owner's member right and member right of rural collective economic organization.For membership rights under trichotomy,some have been clearly specified by laws and some others are being refined theoretically but all of them have been reflected and embodied differently in legal provisions and actual life and can be established.Personal right,property right and procedural right of members,deposit their different legal natures,are unified under the name of membership right and an integral coexistence whole without distinguishing subordination,antecedent right and relief right.When observed from the perspective of legal relationship of membership right,members should enjoy rights and perform the membership obligations at the same time but membership right outweighs the obligations.Different from private law rights which are the product of abstract thinking,membership right building is based on concrete thinking.Therefore,special attention should be paid to rights and obligations of special members,to embody substantial fairness and justice.On the basis of above in-depth discussion on membership right,the membership right is compared with other private law rights in depth,to reargue the independent quality of membership right both from micro and empirical perspectives.Chapter 6 – “Change of Membership Right”: This chapter investigates the dynamic process of membership from nothing to something and from something to nothing,i.e.the generation,obtainment,disposal and loss of membership right.Membership right is private law right in group law,and body corporate is established before the generation of membership right.This paper analyzes and argues the general principle of group law establishment initially in theory,elaborates the generation of corporate property right(ownership)and membership right and discusses the value about the independent existence of membership right from view of legal principle.Generation of membership right realizes leap from individual law to group law.Obtainment of membership right is embodied as the obtainment of membership qualification,which means obtaining the membership qualification is reflected by the obtaining of membership right.The obtainment of membership right can be roughly divided into original obtainment and derivative obtainment,each of which also includes several specific circumstances.Membership right is a kind of private law which can be disposed by right holder certainly,including transfer,pledge and discard.The transfer and pledge of membership right usually happens in profit-making group,whose membership right has property value.Loss of membership right includes group dissolution,elimination,removal and withdrawal of member and transfer of membership right.Such loss generates the corresponding legal effect both on group law and individual law,is in reverse movement with the generation of membership right and realizes return from group law to individual law.Chapter 7 “Realization of Membership Right”: This chapter still focuses on the exercising,validity,infringement,protection and juridical practice from dynamic perspective.As a kind of right on group law,the membership right is different in terms of right exercising of individual law.The exercising of membership right not only has the effect that member individual expects but also finally generates the effect of group law.Membership right has its own particularity in exercising type and mode,both of which will be particularly adjusted by laws.The exercising of membership right also belongs to a kind of legal behavior,which is also subject to the validity evaluation.In general,membership right is exercised in group in the form of assembly and will be finally embodied with group resolution behavior.Group resolution behavior has been transformed from member individual behavior to group behavior and is the important approach and means of forming group awareness and decision.Group behavior is also legal behavior so it is also subject to the legal validity evaluation;the evaluation standards include the contents and procedures of resolution.Members shall obey the resolution result unconditionally,no matter whether consent or dissent,even though it goes against their own anticipation.It is the binding effect of group.Membership right should be exercised in accordance with articles of association of the group;otherwise,the offender shall be subjected to group's punishment.The infringement of membership right,a kind of right on group law,belongs to general infringement behavior,but it is also special,such as the infringement subject,infringement mode,infringement content,relief mode,etc.The infringement can be divided into group's infringement upon membership right,member's infringement upon membership right and third party's infringement upon membership right according to infringement subject,or into the infringement upon member's personal right,infringement upon member's property right and infringement upon member's procedural right according to infringement object.Corresponding to the three basic attributes of membership right,the protection of membership right can also divided into three levels.As the basic private law right,membership right can be protected from being infringed by tort liability law;as private law right on group law,membership right can be protected by group law;as the private law right with strong procedural factor,membership right can be under self-protection.In theory,The self-protection of membership right is classified into the protection of group law,for it is realized in group through assembly.Judicature is the last line of defense of membership right protection and also the important mode of the protection;however,the judgment effect needs improving as the current overall judicial effect of membership right is not so satisfactory and judgment criteria of many cases are not unified.Chapter 8 – “Legislation of Membership Right”: This chapter discusses the legislation issues of membership right from the view of legal policy,particularly the realistic significance,feasibility and design of concrete provisions of including membership right into civil code.In typical countries of civil law system,the general norms about membership right are generally specified in chapters/sections about corporation of general principles of civil law and the contents are basically the same and all about the general provisions about membership right,including membership qualification and exercise and withdrawal of membership right.In current Chinese law,there is no explicit description but implicit regulations on membership right in actuality.Neither General Principles of the Civil Law of the People's Republic of China nor General Rules of the Civil Law of the People's Republic of China has no general provisions about membership right but there are clear provisions about the specific membership right in specific civil law,special law and special law on commerce such as Property Law,Law on Farmers' Professional Cooperatives and Company Law.As the whole,China lags behind in the legislation of group law.In current compilation of civil code,it is required to embody the due status of group law and intensify the factor shaping of group law,so as to reflect the objective fact of group law rise.The compilation of civil code provides a rare golden historic opportunity for including the membership right into civil code.The necessity and feasibility of including membership right in civil code are also argued fully.Focused on the legislation content of membership right,the scholars' proposals on draft of general rules of civil code and draft of civil code released by authority are commented and analyzed.On the whole,scholars' proposals are more enlightened,which all contain the regulations on membership right;but the drafts released by authority are obviously conservative,though the specific contents of every part are the same.Besides,general principles are still subject to the provisions of General Rules of the Civil Law of the People's Republic of China mechanically and only specify the equity with no definite sense of membership right.The general principles actually should specify the basic contents of membership right,deal with relationship with statutory(agreed)membership right,respect group autonomy and grant group vitality.In terms of legislation mode of membership right,total-sub combination mode is highly suggested;general provisions about the basic contents of membership right are specified in the general rules of civil code;meanwhile,the provisions on the specific membership right of branch law fields such as specific provisions of civil code,specific civil law,special law on commerce,economic law and social law should be improved further.Last,this paper puts forward the system arrangement for membership right legislation and legislative suggestions on article design by considering the realities of the civil code compilation.