System Construction Of The Unincorporated Organizations As Civil Subject

The structure of the traditional binary civil subject is composed of the natural person and the legal person, with the economic development and social change, the unincorporated organizations which are different from the natural person and the legal person appear. They exist in abundance and actively participate in social and economic life; however, various countries don't make explicit regulations on the status of the unincorporated organizations as civil subject. For the protection of the safety of transactions and national supervision, the current legislation in China confirms the legal status of the unincorporated organizations in certain scope and degree, but imperfect and without standard, the unincorporated organizations still need further theoretic discussion and legislative construction.This thesis is about the system construction of the unincorporated organizations as civil subject, and is divided in five chapters to analyze and discuss in theory and legislation. Chapter 1 is the definition of the unincorporated organizations, which is the premise of the system construction of the unincorporated organizations as civil subject. This chapter consists of the choice of the name and the confirmation of the scope of the unincorporated organizations. Chapter 2 analyzes the necessity of the system construction of the unincorporated organizations as civil subject, which is the value of the system construction of the unincorporated organizations. This chapter explains in the two aspects of the need of social reality and the need of the legislative technology: on the level of the social reality, the system construction of the unincorporated organizations as civil subject solves the contradiction between theory and practice and the chaos of the rights and obligations; on the level of the legislative technology, it also solves the contradiction of the civil substantive laws, the contradiction between the substantive laws and procedure laws, and the contradiction between the local laws and the foreign laws. Chapter 3 analyzes the theoretical foundation of the system construction of the unincorporated organizations as civil subject, which is the cornerstone of the system construction of the unincorporated organizations as civil subject. This chapter lists scholars' different theories about the judging criteria of the civil subject. Combining with the historical development of the civil subject, the future "Civil Code" in China should adopt the "independent will" judging criterion to divide the civil subject into three types; that is, the natural person, the legal person and the unincorporated organizations. Chapter 4 indicates the external conditions of the system construction of the unincorporated organizations as civil subject. The right to freedom of association provides the constitutional basis, and the respect for the autonomy of the private law in civil law further provides the possibility of the system construction of the unincorporated organizations. The organization and stability of the unincorporated organizations provide the feasibility for its construction. Combining with the advice draft of the Civil Law which is advanced by our country's scholars, the final chapter on the basis of the previous four chapters indicates the basic design of the system construction of the unincorporated organizations as civil subject.