It may be a way to discuss the nature of school legal person from the classification of legal person. In the civil law system, legal persons are divided into public legal persons and private legal persons. Public (national) schools are public legal persons. Private schools are generally public welfare legal persons among private people, and their purpose of establishment is to seek public interests, which is different from that of for-profit legal persons seeking property interests. In the Anglo-American legal system, legal persons are divided into collective legal persons and individual legal persons. Generally speaking, the school belongs to the public welfare legal person in the collective legal person, which is different from the one established for profit. However, it must be stated in the declaration that it is generally treated as an enterprise legal person, donations are not allowed, and the so-called "business" tax must be paid.
In China, according to the general principles of civil law, whether a legal person is for profit can be divided into an enterprise legal person and a non-enterprise legal person. An enterprise legal person is a legal person engaged in economic activities for the purpose of making profits. A non-enterprise legal person is a legal person engaged in non-economic activities for the purpose of making profits. Including legal institutions, institutions and social organizations. The school legal person in our country belongs to the legal person of public institution. Institutions mainly rely on state financial allocations to carry out their activities. The state allocates funds to public institutions as legal persons according to the budgetary expenditure items. Institutions as legal persons must use funds in accordance with the principle of earmarking, and must use funds in accordance with the prescribed expenditure scope and monetary quota. In some cases, these units may get some income through their own activities. Part of this income is compensatory, such as charging students a subsidy for choosing a school; Some are productive, such as setting up school-run enterprises; Some are service-oriented, such as charging educational consulting fees. These fees must be charged according to the government's auditing standards. According to the provisions of budget management, except for the state, the rest are used by institutions as budgetary or extra-budgetary funds, thus forming their own funds or property. However, the main purpose of these activities is not to make profits, but to provide various services to the society, meet the people's growing material and cultural needs, and at the same time assist the state to realize its function of managing social undertakings.
It can be seen that whether it is a foreign public welfare legal person or a domestic public institution legal person, a common feature of schools is public welfare, not for profit. Article 8 of China's Education Law stipulates that "educational activities must conform to the public interests of the state and society", and the principle of public welfare of education requires that educational activities implemented in China must be responsible to the state and people, not to individuals or small groups, and not to harm the public interests of the state, people and society because of the interests of individuals or small groups. Requirements are not for profit, that is, not to engage in economic activities as the main purpose, to obtain value-added property. The key to deciding whether to make a profit is whether the income is used for the construction and development of the school itself. If the proceeds are owned by the organizers or distributed among organizers or even members, it is a profit-making school and violates the education law.
Autonomy in running a school
There are two different views on this issue: the school legal person is only a legal person who enjoys property rights and participates in the circulation of civil legal relations, or a legal person who also has the meaning of "power". One view is that a school legal person is a general legal person in civil law, and accordingly only has the civil rights of a general legal person. Another view is that the school legal person has gone beyond the scope of civil law. It is just a civil legal system. If we only understand the school legal person from the perspective of civil property rights, it is impossible to correctly understand the social significance of the school legal person.
Is the school legal person only involved in the exercise of property rights and the legal relationship of civil circulation stipulated by the civil law, or is it a legal person with independent property rights and independent school management rights? To answer this question, we must return to the question of why the education law stipulates the school legal person. Is there a difference between the "school legal person" in the education law and the "school legal person" in the civil law?
The Outline of Education Reform and Development in China seems to answer this question. Under the eye-catching title of "gradually establishing a system of macro-management by the government and running schools independently for the society", it is pointed out that "in the relationship between the government and schools, according to the principle of separating government from enterprises, the rights and obligations of institutions of higher learning should be clarified through legislation, so that institutions of higher learning can truly become legal entities running schools independently for the society." Although this refers to institutions of higher learning, it has been extended to all schools of basic education in the Education Law.
It is not difficult to see that the legislative intention of legislators to establish the school legal person system is to adjust the relationship between the government and the school and ensure the autonomy of the school. It stipulates not only the property rights and obligations, but also the comprehensive rights and obligations of running an independent school in the sense of "power". Therefore, a school legal person not only has the general rights of a legal person in civil law, but also has the right to run a school independently.
(3) Property independence
The possession of independent property by a legal person is the basis and premise of its legal personality, and it is the material basis for a legal person to independently enjoy civil rights and assume civil obligations. The independent property of a legal person refers to the property owned by a legal person and independent of its founder or members. The independence of school legal person property does not seem to have caused much discussion in the educational theory circle, but there are a lot of puzzles in practice, especially in primary and secondary schools. Mainly the property of public schools (except some assets owned by schools) is facing the separation of property ownership, management right and use right. The ownership of school property belongs to the state, no matter whether the school was an "accessory" in the past or has legal personality now. Its right to use was and is available. However, the property management right has changed. In the past, schools did not or did not have the right to manage their own property, and the government could allocate their land, houses, facilities, equipment and even school funds at will. However, schools with legal personality now have the right to "manage and use their own facilities and funds" according to the Education Law. It can be said that the establishment of the school legal person system has increased the management right of the school to its property.
Therefore, in practice, we must pay attention to the following issues: First, the school assets are separated from the property of the organizers and donors. Whether it is an educational institution run by the state or social forces, the property and funds used for running the school should be separated from other property and funds of the organizers. During the existence of the school, the sponsor shall not withdraw the property and funds used for running the school or use them for other purposes. Second, during the existence of the school, no one may damage the assets of the school except the normal operation of the school, and the independence of the school property is protected by law. Third, the school legal person should manage the school-run industry well. According to the relevant provisions of the Education Law, the school-run industry bears civil liability independently with its independent legal person status, and the school does not bear joint liability for the behavior of the school-run industry, nor does it provide guarantee for the school-run industry with the property used by the school for teaching and scientific research.
(4) Independently bear civil liability.
Article 3 1 of China's Education Law stipulates: "Schools and other educational institutions shall enjoy civil rights and bear civil responsibilities in civil activities according to law." Independent liability of legal person is one of the two basic pillars of independent personality of legal person, and independent liability is the ultimate embodiment of independent property. The competent education department does not bear the debts incurred by the school legal person in civil activities; At the same time, school members (teachers and students) are not responsible for their debts; And in general, principals and school administrators do not bear debts. The independent liability of school legal person is determined by its independent civil subject status. As a civil subject, school legal person is independent of its members, as well as its leading institutions and subordinate institutions. Although they are inextricably linked, they are independent in civil legal status. The school legal person has its own legal personality, independent property and the right to self-management, and the responsibility is of course borne by itself.
However, there is a very puzzling problem in the scope of independent liability of school legal persons. At present, there is no clear legal provision on whether a school legal person is liable for its debts with its actual assets (including state-owned assets) or its own assets.
The treatment of these problems, this paper believes, should depend on the specific situation. If the school undertakes civil liability other than education and teaching activities, the school shall be responsible for its own assets and can only recover and compensate for the part of the school assets; If a school bears civil liability in the process of education and teaching activities, it should participate in Article 48 of the General Principles of Civil Law: "An enterprise owned by the whole people as a legal person shall bear civil liability with all the property it manages". When creditors recover debts, the school should bear the liability with its own assets and should not be limited by expenditure items. The reason is that the purpose of the school is to organize and implement education and teaching activities. In a sense, it is guaranteed or mortgaged by state-owned assets. If the school carries out things other than education and teaching activities, state-owned assets do not provide guarantee for its behavior, and of course it cannot be responsible for its debts with state-owned assets. If debt occurs in education and teaching activities, it can be considered as a guarantee with the assets of the school, so all assets must be used to be responsible for its debt.