Civil Subject Status Of Unincorporated Organizations

Article 2 of the General Principles of the Civil Law stipulates that "the Civil Law shall adjust personal relationship and property relationship among natural persons,legal persons and unincorporated organizations "with equal subjects".Article 4 stipulates that "civil subjects shall have equal legal status in civil activities".Article 102 provides that "an unincorporated organization is one that does not have the status of a legal person but is able to engage in civil activities with its own name in accordance to the law".As a result,China's Civil Code abandoned the past binary system of civil subject,and adopted the ternary system of civil subject.Unincorporated organizations have been endowed with qualifications of civil subject since then.Ever since the implementation of the General Principles of Civil Law,the civil subject status of unincorporated organizations have been established.Though there are still some divergence on concept expression,chapter arrangement,style selection in legislation of unincorporated organization.Some scholars even oppose the ternary system of civil subject,and they hold the belief that the concept of legal person should be reconstructed,so that unincorporated organization can be included in legal person and the former binary system of civil subject.To solve these problems,we need to begin with the fundamental intention and extension of legal person and unincorporated organization by searching the related legislative information and analyze specific articles of the General Principles of Civil Law.We should try to find a better solution on these divergences.The first part of this paper is to clarify the legal term of unincorporated organization under the existing legal background.Firstly,unincorporated organization is a kind of organizational group person,which makes it different from natural person.Secondly,unincorporated organization is a kind of group person the doesn't have the qualification of legal person.It is a derivative concept of legal person.For different legal system has different intention of legal person,unincorporated organization can also have dissimilarity.Under the binary system of civil subject,traditional civil law countries grand legal person status when enrolled.Unincorporated organization doesn't have legal person status,and it doesn't have civil subject status.Independent responsibility is the key of legal person in our country,any subject can not shoulder independent responsibility is not a civil subject.Relatively speaking,the intention of unincorporated organization in our country is broad since that of legal person is narrow.This paper argues that China's legal person system is different from traditional civil law countries,so unincorporated organization can also be different.Specifically speaking,partnership enterprise,as one typical unincorporated organization in our legal system,it actually has legal person status in German,Japan and Taiwan area.However,it doesn't have both legal person status and civil subj ect status.With the development of society and economy,granting unincorporated organization civil subject status becomes an significant requirement.Theoretical circle have two claims on this matter.The first one is to break traditional binary civil subject system and establish ternary civil subject system.In this system,legal person,natural person and unincorporated organization are three civil subject.The other one insists on using binary civil subject because it suggests that the legal person system itself in China is not reasonable.And independent responsibility which is the core of legal person should be changed.The concept of legal person should be reconstructed and registration should be taken as a necessary condition of legal person.Therefore,unincorporated organization which has both civil rights capacity and registration can obtain the status of civil subj ect.This paper argues that the independent responsibility is the core of legal person in China,and it is related to the policy of the reform of stated-owned enterprises at that time.In the meantime,the independent responsibility has been deeply rooted in people's mind and there is no need in reconstructing the concept of legal person.Although the concept of legal person in traditional civil law system is broader and nothing like independent responsibility is required,but there is still a corresponding classification within legal person which is based on liability factor as well.In this way,it does have some similarities with China's legal person system.Some other scholars believe that not granting unincorporated organization legal person status has no good for the application of legal person system.This paper holds the belief that for the development of unincorporated organization,we should protect and pay attention to them after the General Principles of Civil Law endows unincorporated organization the status of civil subject.At the same time,since the organization is different from legal person,unincorporated organization should be as an significant supplement of legal person and play a unique role.For another thing,there are many unfeasible factors in the reconstruction of the concept of legal person such as the cost of legislation and the cost of popularizing law.Some scholars even suggest that insisting on the independent responsibility is helpful to build a typical social organization.In order to give other groups or organizations a reference,it is necessary to show the differences between them.Then people can make comparison and selection.To sum up,the statutory principle of group personality indicates that the decisive factor of group personality is the will of state.Different countries' law have different stipulations.We have to know every legislation has its unique background.And we can not talk about the right and wrong of theory without considering social requirements.The stipulations of the General Principles of Civil Law on unincorporated organizations must also follow this principle and can not copy systems outside China without consideration.The last part of this paper attempts to discuss the specific types of unincorporated organization.In the long legislative practice of Chinese organizations and customary law,the concept of "other organizations" has been widely used and vaguely extended.And it is a law term that is closely related to the concept of unincorporated organizations.The unincorporated organizations in the General Principles of Civil Law are only part of "other organizations" which have capacity for civil rights and have been registered as civil subject.Therefore,the internal category of "other organizations" is still complex,and the General Principles of Civil Law has to use save closure to stipulate specific types of unincorporated organizations.I have to say that with the development of market economy,the requirement for market subject will be more diversified.We should keep a positive attitude towards on the issue of "what kind of specific 'other organizations' could get civil subject status".