On Board Of Directors Of Incorporated Foundation’s Authority And Restrict

As the most basic and important type of Juristische person in traditional civilsystem, Incorporated Foundation originates from Roman law times. In civil law ofGermany, Switzerland, Italy all contain the prescripts of Incorporated Foundation. Inour country’s law, we don’t take this type of Juristische person now, but Foundationand Jurishische person typed private nonprofit organization has similar function asIncorporated Foundation. I think the concept and system of Incorporated Foundationshould be taken and introduced into China’s feature civil code.As a property-based legal, Incorporated Foundation is generally for the purposeof public when it sets up. And Incorporated Foundation is different from juridicalassociation, it don’t have the authority organ as holder’s meeting, so the board ofdirectors has much right and power than other organization. How to restrict theboard of directors’ right of incorporated foundation is the key problem to operation.So the article mainly discuss’ how to strength the right of board of directors inreasonable restrict of Incorporated Foundation，in order to allow more public-spiritedpeople volunteer into the cause of public welfare, and promote the development ofpublic welfare undertakings.Charter, property, purpose are the three elements of Incorporated Foundationwhich has the great significance for Incorporated Foundation itself. Charter as abody of the Incorporated Foundation’s documents which is in accordance with thelaw agreed within the corporate legal relationship to determine the rights andobligations of the corporate internal management system and provisions of thevarious departments of legal documents. The board of directors’ day-to-daymanagement and the external representation of the right which is authorized bycharter, it can be said that the charter is the source authority of the IncorporatedFoundation board of directors. The donor donates the sum of the specific property which makes up the Incorporated Foundation and the law gives this property asspecific personality and property is a person in legal sense, the property takeresponsibility by itself. The scope of work of the board of directors is centered on theproperty, how to ensure the safe use of the property is the key point of the board ofdirectors in exercising the right. When Incorporated Foundation sets up, it needs fora specific purpose, most countries require the Incorporated Foundation to the publicpurpose. And it is the major feature of Incorporated Foundation different from thejuridical association. About the definition of public welfare, the laws of differentcountries give different insights. We take Japanese law for example; define thestandard of public welfare is whether the group take the benefits to be derived as thenature of the allocation to its members, not engaged in the cause of the quality,variety belong to public warfare to make sure it is a public warfare or not.Incorporated Foundation whether could be engage in making profit range which isdetermined by the purposes of Foundation.The Foundation’s target which is gave by donor what is for public purpose, howto ensure the donor’s donation will of sustainability is a core issue in the operation ofthe Foundation. According to modern corporate governance theory, the companyproduced the separation of ownership and management rights. The Foundation ismore special, after donors donate the property; the property is not belonged thedonor any more, and this property as an independent main body. This means that theFoundation itself is no belong any special person, so the Foundation is not similar toa corporation aggregate organ of the shareholders, so the result is that Foundation’sBoard of Directors will be fairly broad than others. This requires more self-restraintsupervision in board of directors. Through the Foundation’s charter which restrictand limit on the right of the Foundation board of directors. At the same time, the lawshould also clear the status of the supervisory board, that avoid the puppet of theboard of directors, in order to play the better supervisory role, to complete theinternal monitor compliance.External regulation is a major guarantee of the correct running of supervisionwithin the Foundation. The Foundation is intertwined in the public and private lawareas. Foundation operations can not be separated from the supervision of the public law. The charter of Foundation provides the internal governance details and externallaw provides the general, abstract scope of Foundation which leaves more space, toensure the operation of the Foundation’s tension. External regulation need to bemade only in the Foundation will supervise the intervention on the Foundation inaccordance with the law. External regulation divides into the supervision of thepublic authorities and non-public authority. There are two important supervisions;the one is public authority oversight, anther is the judiciary supervision, through thepublic power to supervise the Foundation. The supervision of non-public authoritymainly is supervision of the stakeholders, supervision of donors, supervision of thesocial forces and the common people. Because these people or organizations with aninterest in relationships and the Foundation in order to protect the interests of thesepeople and the public purposes of the Foundation, to raise the foundation notarytransparency, through the social means to supervise the Foundation.It is precisely because the special legal nature of the Foundation, so we need tostrict the supervision and control of board of directors of Foundation, and to ensurethe Foundation is still for public purpose after the Foundation sets up, to ensure thecorrect use of social resources, to maintain social harmony and stability, to play theirown unique value. Conclusion, the perfect supervision mechanism makes betterFoundation...