A Research On Stiftung System

As the most basic and important type of Juristische person in trodational civil system, Stiftung originates from Roman law times. Stiftung mainly present itself in continental law system, In civil law of Germany. Switzerland and Italy all contains the prescripts of Stiftung. In China, "General Principles of Civil Law" didn't adopt the way of demarcation between Verein and Stiftung. But Foundation and juristische person typed Private nonprofit Organization have similar function as Stiftung I think the concept and system of Stiftung should be introduced into China's future civil code.At the same time, as a property-based legal, foundation is generally for the purpose of public. This is the foundation of its particularity requirement must have a strong social credibility so that Foundation to make the property consistent with the application of voluntary donors. Therefore, we must improve the Foundation's internal governance structure so that its internal relations can be coordinated and constrained. At the same time,, We must strengthen the government and stakeholders to a third party the identity of legal persons from outside the consortium to carry out supervision, in order to allow more public-spirited people into the cause of public welfare, and promote the development of public welfare undertakings.This article is divided into five parts. In the first part, through comparative analysis, it examines the definition and fundamental legal elements of incorporated foundation, revealing the essential characteristics that make it distinct from aggregate corporation. Meanwhile, It could be clearly seen from the evolvement of incorporated foundation that the division of incorporated foundation and aggregate corporation is an inevitable Result of historieal development in civil law countries. Meanwhile, probing into the typolagy of corporations, explores the status of incorporated foundation in the typology. It concludes that the classification of incorporated foundation and aggregate corporation is the result of abstracting the society with legal technology and also the most distinctive and valuable classifying mode in civil law countuies.The second part mainly introduces the general theory of the specific system of foundation. The specific system of foundation contains of internal governance and external regulation. In this part, by referring to the theory of corporate governance, it conducts a comparative study on the governance between profit-generating aggregate corporation and incorporated foundation and explores the significance and theoretical foundation of internal governance of the latter. It further illustrates the effective mechanism of check and balance, separation and coordination between the board of directors and board of supervisors in the peculiar situation where "the proprictor is absent". Meanwhile, The source of property and realization of objective of incorporated foundation requires that it bear high social credit. Therefore, the supervision by the government, the stockholders and the society are indispensible to maintain the donors' will and achieve the corporation's tepet.The third part introduces of the main foundation of our system about the status quo and the lack of legislation. The foundation and non-state nonprofit comporation are incorporated foundation in essential sense, and they are fully equipped with the attributes of foundation. However, the classification system of corporation is lack of scientific at present in China. Therefore, we should introduce the system of Stuftung into China's civil code.The fourth part of this article reviews the practical problems concerning internal governance in two de pacto incorporated foundations in China, the foundations and non-state nonprofit corporations, thorough empirical studies. Meanwhile, based on the existing problems of the foundation and non-state nonprofit corporation on governance structure, we will make the internal governance and the external regulation of de pacto incorporated foundations more perfect in China, combining the general theory of the specific system of the foundation in second part.