Research On Restrictions Of Philanthropic Foundation Property Usage

The special nature of Philanthropic foundations' intention of protecting public interest and its special source of wealth call for restrictions on utilizing the wealth,so as to achieve the foundation's social functions.Based on this,this article mainly embarks from philanthropic foundation property and with reference to previous research,this article combines document research method,comparative study method and other methods to systematically analyze property attribute of philanthropic foundation property and its restriction of usage.Then,it proposes the assumption and suggestion of improving multiple imputation methods based on the violation of usage restrictions in law.Concrete structures are arranged as following:The first part firstly delivers a brief introduction of the history of philanthropic foundations,as well as the current operating status of philanthropic foundations in China.Secondly,the definitions of philanthropic foundations in civil law and common law systems respectively are also introduced in this part.And it is also observed that according to current legislation in China,philanthropic foundations are defined as non-profitable legal representatives,while featured by specific public welfare characteristics at the same time.Their business scope and activities are closely related to public welfare and charity.And it is prohibited to be engaged into commercial activities,and to distribute the profits earned internally.The second part firstly points out the three sources of wealth of philanthropic foundations,andsummarizes academic discussions regarding the nature of philanthropicfoundations' properties.Property ownership should belong to the legal representative,in order to maintain the independence of the foundation.Correspondingly,the philanthropic foundation should also manage the property with the duty of care,as well as the fiduciary obligations towards beneficiaries.Secondly,it is pointed out that philanthropic foundations' special nature of public welfare is closely related to the fact that the foundations' sources of wealth are serving for charitable purposes.The value of philanthropic foundations is to complement the insufficiencies in the current social security system via consolidating the diversified channels of charitable resources in the society.The public welfare targeted nature of philanthropic foundations' property calls for restrictions on the property's utilization,return and disposition,etc.so as to secure the realization of its social targets.And before defining all these restrictions,it will be critical to firstly clarify the nature of the legal representative's property rights.The third part firstly summarizes the restrictive rules on property utilization in articles of law and comparative laws,and analyzes the existing restrictions on philanthropic foundationsproperties.Such restrictions mainly include three aspects,namely a limit on the percentage of public welfare related spending,prohibition of internal dividend distribution from operating investments which are generally allowed,and limitations on the transfer of residual wealth in disposition of the property.Secondly,by referring to existing cases and media news,situations in violation with restrictions on property rights are also analyzed in this part,based on which the lack of liability imputation in existing legislations is also analyzed.Only administrative penalties are applied in the circumstances of discrepancies with the original public welfare targeted spending purpose,while the donators' execution of rights of relief are not paid with sufficient focus.The fourth part is based on the front parts.Through the investigation and reference of law comparison,it puts forward some assumptions and suggestions of improving imputation under the situation of violation of property restriction.From the perspective of restricting the abuse of rights and refining the approaches of relief,there could be a few focus areas of improvement:Firstly,the percentage of the philanthropicfoundation's invested assets should be limited.Annual investment limit could be based on a percentage as of public welfare spending,in order to prevent unlimited expansion of investment size and diluting the target of facilitating public welfare.Secondly,the donator's rights of revocation should be ensured by combining the right to know and right of revocation,so that the donator's rights of relief can be protected.Thirdly,the remedy model of public welfare lawsuit can be developed.In the cases of undefined beneficiaries,the lawsuit can be raised by specific social organizations.This would help to avoid nonmeritorious suits,and push the Philanthropic foundation to stick to its responsibility of charitable distribution and protect the rights of the beneficiaries.From the other perspective of responsibility and government supervision,the attribution of responsibility and the model of supervision can be further improved:Firstly,the form of civil liability has to be clearly defined,and separate imputation mechanism should be developed for unauthorized dispositions.As for the liability of a legal representative,existing administrative penalties can be followed;for the liability of the foundation's individuals,the individual should assume the tort liability towards the donators and the foundation itself.The litigation subject to demand compensation for infringement is also discussed here.Secondly,the government supervision model should be modified.Third-party private supervision institutions can be introduced to actively supervise the foundation's operations,so as to push the foundation to follow its charity target,and to give the supervision rights back to the private sector and leaving more space for the future development of civil liability system.