Classification of legal persons in civil law system

First, the status quo of legal person classification in China

Generally speaking, legal persons in China are divided into enterprise legal persons and non-enterprise legal persons according to their business activities. One is an enterprise legal person engaged in economic activities for profit. A kind of non-enterprise legal person refers to a legal person engaged in non-economic activities and not for profit. This classification is the classification type of general principles of civil law in China. In 2006, the fifth category of organization classification announced by the state was added: other organizations. Including foundations, private non-enterprise units, places for religious activities, rural villagers' committees and urban residents' committees.

Second, the defects of legal person classification in China

Academic circles have not reached a consensus on the theoretical basis of this quartering, but the defects of its division are obvious. Its main performance is:

(a) There is no clear distinction between public and private.

(B) Affected by the planned economy, highlighting the particularity of enterprise legal persons with different ownership has been unable to adapt to the current economic life.

(3) The types of legal persons in public institutions are too broad, and these legal persons have not abstracted the factors and foundations of the same category according to their own characteristics.

(d) Without the confirmation of the consortium legal person, the existing legal person types in China can't accommodate it, such as foundations, temples, and various organizations that donate property.

Thirdly, the reconstruction of legal person classification.

(a) the comparative study of legal person classification should involve three aspects.

The first is the standard of classification, that is, what to classify according to, which is a question of frame of reference. The adopted classification standard reflects the value orientation and control direction of the classification subject. Secondly, based on this hypothetical standard, what is the difference between the two categories? Finally, the significance of this classification. That is to say, why this classification? Is this classification unreasonable?

1, public and private persons

This is an important classification of civil law countries, and other types of legal person classification are based on this classification. Scholars have different opinions on the standard of this classification, mainly including: (1) taking corporate sponsors as the standard. (2) Take the purpose of establishing a legal person as the standard. (3) Take the legal relationship between legal person and state as the standard. (4) Take whether the legal person exercises or shares state power as the standard. (5) Take the general social concept as the standard. (6) Take the rules for the establishment of legal persons as the standard. Except (5), other divisions are essentially the same, but the angles or purposes are different.

2. Enterprise legal person and consortium legal person

Since the German Civil Code formally distinguished the corporate legal person from the consortium legal person, this legal person classification method was quickly borrowed and absorbed by the legislation of most countries, and then became the most important legal person classification in the civil law system. A corporate body is a collection of people, and its existence is based on people (members, members or shareholders) who participate in the community. Enterprise associations are mostly for profit, but they can also engage in public welfare undertakings. Enterprise as a legal person mainly includes companies,

Banks, cooperatives, trade unions, chambers of commerce and other social organizations. A consortium legal person is a collection of property, and its existence is based on the property collected for a certain purpose. The consortium legal person has no organizational members, only the donated property. The division of legal person and consortium is the re-division of private person, and the standard of division is the basis of legal person.

3. For-profit legal persons and public welfare legal persons

According to the purpose of legal person establishment activities, private individuals can be divided into profit-making legal persons and public welfare legal persons. A legal person, such as a company, aims to obtain economic benefits and distribute them to its members. Public welfare legal person refers to a legal person established for the purpose of social public interest. Such as schools and hospitals. The so-called social public interest refers to the interests of the unspecified majority, generally referring to non-economic interests, but this does not mean that public welfare legal persons do not engage in any profit-making economic activities. On the contrary, for-profit activities are sometimes an important part of some public welfare legal persons, but unlike for-profit legal persons, such profits are not the ultimate goal of legal persons, and the profits obtained are not distributed to their members, but a means or a necessary way to accomplish their goals. In addition to these two kinds of legal persons, there are also corporate legal persons established and existing in real life, which are neither for public welfare nor for members' economic interests. Like social clubs.

(2) The legal person classification system based on the dualism of public and private persons and the dichotomy of companies and consortia as the main body.

As the basic concepts of civil law, associations and consortia are the products of German jurists' abstract thinking, but they are the products of social and economic practice and the results of social development laws. Therefore, although there are some differences in the specific provisions on the classification of legal persons in civil law countries, they can't get rid of the basic classification standards of associations and consortia. China's future civil code should first divide legal persons into public and private persons. On the basis of strictly restricting the entry of public legal persons into the field of private law, private legal persons should be divided into corporate legal persons and consortium legal persons. At the same time, the corporate legal person should be supplemented by the legislative model of profit-making, public welfare and intermediate legal person.

(3) Compared with the classification of legal persons stipulated in the General Principles of Civil Law, the concept of this classification in the civil law system has the following advantages and significance.

1, which helps to clarify the division of public and private persons.

2. Private legal persons are divided into corporate legal persons and consortium legal persons according to the basic elements of establishment, and corporate legal persons are divided into profit-making legal persons, public welfare legal persons and intermediate legal persons.

3. The confirmation of corporate bodies can meet the specific and personalized needs of different interest groups for company types, which is conducive to the formation of an open company system.

4. Confirming the consortium as a legal person is the embodiment of respecting individual rights and humanistic consciousness.

5. The establishment of the above-mentioned legal person classification and system is conducive to the healthy development of non-profit organizations and has important social significance in China.

4. Disadvantages and challenges of legal person classification in civil law countries.

(a) Division of company associations and consortia.

This division is also challenged by contemporary civil law theory, because there is a "one-man company", which is recognized by the company laws of several countries. It is generally believed that a company consortium consists of more than two people. Regarding the corporate nature of one-man company, there are potential company theory, joint-stock company theory and profit-making consortium theory in academic circles.

(two) on the division of public welfare legal persons and profit-making legal persons.

This division is ambiguous because of the intermediate legal person. Judging from the administrative practice of public welfare legal person, the concept of public welfare is moving closer to the concept of non-profit. Therefore, scholars believe that the concept of public welfare in civil law should be revised, which should not be limited to the interests of the whole society and the interests of the unspecified majority, but also include the interests of the specified majority, as long as the interests are open to the general public, that is, the beneficiaries are not fixed. However, another question has arisen: what kind of constraints should be used to coordinate the interests of a specific majority with the interests of the whole society or not to harm the interests of the whole society?

(3) Other social organizations in China.

Such as private non-enterprise units. There are legal person type and unincorporated person type, and unincorporated person type includes individual and partnership, which is an organization form that has never existed in other countries, so the classification of it will inevitably encounter the contradiction that theory and reality cannot be completely coordinated.

(4) Whether the above basic classification of legal persons can accommodate all special types of legal persons.

In addition to one-person companies, there are also cooperative legal persons. Obtaining the legal person status of cooperatives is also a problem worthy of study. Although modern cooperatives have increasingly reflected the tendency of employee management and profit-making, it is better to regulate them by separate legislation before the essential characteristics of cooperatives have fundamentally changed.