Study On Non-corporate Groups

The legal status of non-corporate groups is a long disputed issue. We think there are some problems with the views of non-corporate groups of the civil legislation, judicial practice and academic theories, which are listed below: (1) the identification of the nature of the civil subject is incorrect; (2) the relationship between the status of the civil subject in civil law and its status in civil procedural law is not clear; (3) the extension of non-corporate groups is indefinite; (4) the policy of the legislation is wrong. Due to the above problems, there are lots of disputes arising in civil activities, civil legislation, and academic studies.Among all of these problems, the legal status of non-corporate groups in civil law is the key. As for this issue, there are mainly two theories: one insists that non-corporate groups are civil subjects and the other thinks not. For the time being, the previous one is the prevailing theory. However, scholars who insist on the prevailing theory have different ideas, which can be put into three categories: (1) non-corporate groups are legal persons to some extent (2) non-corporate groups are legal persons; (3)non-corporate groups are civil subjects formally. Scholars who hold that non-corporate groups are not civil subjects think non-corporate groups are a gathering of civil subjects and they are plural subjects in nature.In this thesis, we will prove that non-corporate groups are not civil subjects and then analyze the relationship between non-corporate groups'status in civil law and their status in civil procedure law. After that, we will discuss the types of non-corporate groups from the perspective of the application of law and will try to contribute to the future Civil Code and the judicial practice. The outline of this thesis is as following:In Chapterâ… , on basis of the analysis of the traditional theory of the nature of non-corporate groups, we will point out that: the legal person is created by law as a civil subject. It has its own will and body, it is intangible and has no member. In civil law, groups are plural subjects composed of all their members and their will is a gathering of the wills of their members, which are carried by respective members. Therefore, we should not mix the legal person and the groups up.In Chapterâ…¡, we will analyze the traditional definition of non-corporate groups and the theory of its status in civil law and then we will present our view of non-corporate groups, that is : in civil law, the so called"non-corporate groups"should be named as"groups"rather than"non-corporate groups"; Groups are plural subjects and non-corporate groups do not exist as a dependent subject; the name, properties and liabilities of"non-corporate groups"should belong to their members, and as"non-corporate groups"are not civil subjects, they can not have the name, properties and liabilities. Groups can be divided into registered groups and unregistered groups, profitable groups and nonprofit groups. From the perspective of the relationship between group members and group properties, types of the ownership can be divided into co-ownership by shares, common ownership and Gesamteigentum. The rights and obligations between (or among) group members should be ascertained by the charter of the group and the legal provisions should not be applied here. The debts incurred in the name of the group should be analyzed with the legal stipulations of agency, contract and torts.In chapterâ…¢, after the discussion of non-corporate groups'status in civil procedural law, we point out that: Form litigant theory has separated form and content of a thing. Special regulation to the non-corporate groups in the civil procedural law is based on the lawsuit convenience. As a matter of fact, all of the group members use one name to participate in the suit. The principal of the non-corporate groups acts as a legal agent. The fact that non-corporate groups can launch an action is not in conflict with the fact that the non-corporate group itself is not a civil subject.In chapterâ…£, on basis of the above conclusions that civil subjects are the carriers of rights and obligations and groups are plural subjects, we will analyze and comment on the types of non-corporate groups in judicial practice and academic study with the standard. We conclude that the definition of groups in daily life should not be mixed up with the definition in civil law. Finally, we will provide a new way to establish the types and the system of non-corporate groups.