Research On The Judicial Determination Of The Validity Of Foundation Loan Contracts In My Countr

At present,the charity law and the regulations on the administration of foundations have not made clear provisions on the loan of foundations,There are only several provisions of regulating the behavior of Foundations(for Trial Implementation)and the Interim Measures for the administration of value preservation and appreciation investment activities of charitable organizations Provisions have been made.The above provisions make it clear that charitable organizations cannot provide loans unrelated to public welfare activities to individuals and enterprises,whether directly or in the name of investment.Because the provisions are relatively general,there are many problems in the specific practice of the provisions.When trying the case of designing the lending activities of the foundation,the local courts do not have unified judicial recognition standards for the lending relationship,which affects the judgment results and leads to the phenomenon.There are many disputes about whether the foundation can carry out loan activities and whether the loan contract is effective in theory and judicial practice.If we can improve the relevant legal norms system and clarify the judicial recognition standards,it will help to reduce the occurrence of non-standard investment of foundations,standardize the investment behavior of foundations and give full play to the social value of foundations,which is of great practical significance.This paper is related to foundation lending and combs the forms of foundation lending contracts in judicial practice.The first section discriminates the concepts of foundation and private lending,and defines the concept of foundation lending discussed in this paper.The second section classifies the various forms of foundation loan contracts in China’s judicial practice.The second chapter explores and evaluates the current situation of judicial recognition of foundation lending in China.Starting from the reality of judicial practice,the first section makes a general investigation,statistics and Analysis on the current situation of judicial recognition of foundation lending in a typed way of thinking.The second section abstracts the prominent problems existing in the judicial determination of foundation lending in China: the conflict between judicial practice and legal norms in the determination of effectiveness,the failure to clarify the difference between foundation lending and private lending,the failure to review the plaintiff’s eligibility of foundation lending contract,and the failure to clarify the application of "mandatory provisions" in Article 153 of the civil code.The third chapter analyzes identification of foundation lending in China.The first section discusses the plaintiff’s eligibility of the foundation in the loan contract,first understand the different manifestations of the plaintiff’s eligibility of the foundation in judicial practice,then explore the different effects caused by the differences,especially the lack of eligibility of the foundation,draw the necessity of the examination of the subject’s qualification,and look for the theoretical basis that can support the plaintiff’s eligibility of the foundation;The second section discusses the determination of the legitimacy of the content of the foundation contract.Firstly,it reflects on the phenomenon that most of the foundation lending cases are determined by the relevant legal norms of private lending.The court did not consider the particularity of the foundation subject,and the principle of value preservation and appreciation was lack of specific norms,resulting in insufficient review of the content of the contract;Because the cases of invalidation of loan contracts are mostly combined with paragraph 1 of Article 153 of the civil code(civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid).Therefore,the third section analyzes this clause in combination with this clause.This clause is only limited to the violation of the content of legal acts,which belongs to incomplete norms in the normative structure,and its constituent elements are other specific mandatory provisions.Therefore,it then discusses the impact of specific mandatory provisions in relevant laws and regulations on foundation lending on contracts Impact of effectiveness.The fourth chapter puts forward some suggestions on the problems existing in the judicial identification of foundation lending in China.The first section defines the evaluation standard of the eligibility of the plaintiff of the foundation,takes the interests of litigation as the theoretical basis of the eligibility of the foundation,and takes the ability to engage in profit-making behavior as the eligibility review standard.The second section refines the operating rules for the legitimacy identification of the content of foundation loan contracts in China,standardizes the identification ideas,unifies the identification basis,and refines the normative requirements of the principle of foundations.The third section makes a systematic legal interpretation of paragraph 1 of Article 153 of the civil code,and adopts the judicial application of purpose interpretation and interest measurement,so as to facilitate the judges to make a conclusion that is logical and consistent with the values of the real society.