Research On Legal Problem Of Litigation On The Defects Of The Resolution By Board Of Directors Of Privately-Run Schools

Privately-run schools refers to the schools that social organizations or individuals other than state organs utilizes non-government financial funds and face towards the whole society, characterized by individuals, legal persons and other organizations other than state organs as the sponsors, the fund from non-financial funds and the students enrolled from non-specific groups and citizens. At the present stage, although privately-run schools has been developing rapidly in China, relevant legal systems are not so sound that the law applied to deal with internal disputes of privately-run schools gives rise to discrepancy. In order to solve the discrepancy, first consideration should be given to distinguish the nature of privately-run schools as legal person. Although the scholars in civil law in China have made occasional reference to the nature of privately-run schools as legal person, there is no special research accomplishment. Some scholars hold that the foundation of privately-run schools is based on the donation, with the aim to develop educational undertaking of public interests or charity, and the nature of privately-run schools as legal person includes public institutions as legal person, financial groups as legal person and public services as legal person, but the author does not agree with all the opinions proposed by the scholars mentioned above. The Law on Promotion of Privately-Run Schools provides that the establishment of privately-run schools shall possess the requirements of a legal person and such privately-run schools shall be registered in accordance with law in order to obtain the qualification of a legal person. According to the different qualifications of legal persons upon registration, privately-run schools can be divided into two categories: privately-run schools of company type and privately-run schools of non-enterprise entity type, the latter of which can be divided into donation type, non-reward type and reward type and the former of which can be divided into enterprises as legal person, social groups as legal person, profit legal person and commercial legal person. The donation type of privately-run schools in privately-run schools of non-enterprise entity type can be classified into public institutions as legal person, financial groups as legal person and public services as legal person, and non-reward type and reward type of privately-run schools can be classified as public institutions as legal person, financial groups as legal person and public services as legal person. The Company Law and the Law on Promotion of Privately-Run Schools respectively provide that the establishment of companies and privately-run schools shall set up boards of directors. The boards of directors of the two legal persons have the same characteristics as organizational institutions of legal persons and the same external representative rights. However, the two legal persons are different in minimum member limitation, the position and authority of organizational institutions of legal persons, mandatory conditions of establishment, discussion procedure and the degree of intervention from the administration. Organizational institutions of the two legal persons possess different natures and different authorities. In case that the parties concerned bring lawsuits to the courts, the courts shall firstly examine the actionability of the requests of the parties concerned. The actionability of civil and commercial disputes provides the disputes with general qualifications or right protection qualifications for trial before the disputes come into litigation procedures to be trialed by courts and become the action of civil and commercial matters from the perspective of law. The determination of a case with actionability depends on the following two factors, the first one is that the disputes falls into civil and commercial disputes in nature from the perspective of legal relationship and the second one is that there is provision in law. The litigation on the defects of the resolution by board of directors of the privately-run schools registered as companies shall be governed by the Company Law, which may be accepted by the courts; the litigation on the defects of the resolution by board of directors of the privately-run schools registered as non-enterprise entity type shall be governed by the Law on Promotion of Privately-Run Schools, which may not be accepted by the courts. The present paper also puts forward proposals and suggestions of the means to deal with the litigation on the defects of the resolution by board of directors of privately-run schools and to improve relevant laws and systems.