The legal person system is an important part of the civil subject system. Comparing the General Principles of Civil Law with the General Principles of Civil Law of People's Republic of China (PRC) promulgated by 1986 (hereinafter referred to as the General Principles of Civil Law), we can find that the legal person system is one of the most revised and changed parts, which can be said to be a major breakthrough in the General Principles of Civil Law.
In the past, according to the business activities of legal persons, China's General Principles of Civil Law divided legal persons into four categories: enterprise legal persons, organ legal persons, institutions legal persons and social organizations legal persons, or into two categories: enterprise legal persons and non-enterprise legal persons. The newly promulgated General Principles of Civil Law adopts the basic classification methods of profit-making legal persons and non-profit legal persons. Non-profit legal persons are further divided into institutions, social organizations and donated legal persons, and special legal persons are also stipulated. This classification fully reflects the rational consideration of codified legislation, abandons the classification methods of corporate legal persons and consortium legal persons in western countries, and adopts the classification of for-profit legal persons and non-profit legal persons instead. It not only meets the requirements of China's civil and commercial law practice, but also realizes the innovation and breakthrough of legal person types in the General Principles of Civil Law, and at the same time maintains the continuity of China's legal person system in legislation. Among them, the second paragraph of Article 92 of the General Principles of Civil Law establishes the legal person qualification of religious activity places, which is of great significance for strengthening the legal protection of religious property and promoting the legalization of religious affairs.
Before the promulgation of the General Principles of the Civil Law, the provisions on the qualifications of religious legal persons in Chinese laws and regulations were not perfect. Only in Article 77 of the General Principles of the Civil Law: "The lawful property of social organizations, including religious organizations, is protected by law." Although the content of this clause mainly involves the legal protection of religious property, we can infer that religious groups may become social groups as legal persons after going through the examination and registration procedures according to law. In 2004, Article 6 of the Regulations on Religious Affairs promulgated by the State Council stipulates: "The establishment, alteration and cancellation of religious groups shall be registered in accordance with the Regulations on the Administration of Registration of Social Organizations. The articles of association of religious organizations shall comply with the relevant provisions of the Regulations on the Registration and Administration of Social Organizations. " It can be seen that the Regulations on Religious Affairs further clarifies that religious organizations should follow the legal person status of social groups.
However, due to various restrictions, neither the General Principles of the Civil Law, the Property Law nor the Regulations on Religious Affairs can give the places of religious activities legal person status. Places for religious activities do not have the qualifications of civil subjects and have no "legal status" to carry out civil activities, and their rights and obligations are very vague. This has caused many problems in practice and seriously hindered the benign development of religious affairs. These negative situations can be summarized as follows: First, the ownership of religious property lacks the clear provisions and protection of basic laws. Religious property is not limited to the property of religious groups, and the property of religious activities places is not included in the scope of protection. Many activity places have become "illegal" places without any legal protection because they have no real estate license, land certificate and other related documents. Second, the subject of religious property ownership is unclear. Due to the lack of clear regulations on the ownership of various religious properties, the standards for determining the ownership of properties in different periods and religions are different, and there are different regulations such as "owned by religious groups", "owned by local religious associations", "owned by China churches", "owned by society", "owned by the state" and "owned by religious people collectively", which has formed a realistic chaos of diversified ownership of religious properties. Third, places for religious activities do not have the qualifications of civil subjects. As a result, places of religious activities do not have the "legal status" to carry out civil activities, which often leads to problems such as illegal occupation of property, inability to open a unit bank settlement account to deposit donations, inability to conclude labor or economic contracts in the name of places of religious activities, inability to become the subject of qualifications and rights of movable and immovable property, and inability to become the subject of litigation rights protection, which affects the normal development of spiritual activities and charitable activities. Fourth, the phenomenon of "religion sets the stage, economic singing opera" is common. The unclear status of legal person also makes the supervision of property use and income distribution irregular, which leads to various commercial operations such as developing real estate and collecting high-priced tickets in the name of expanding temples, and undermines the image of religion in the public mind.
Facing the practical problems brought about by the imperfect legal provisions in the past, the General Principles of Civil Law has made the following two innovations and improvements to the legal person system:
1, on the legal person qualification of religious groups. Article 3 of the Regulations on the Registration and Management of Social Organizations, which was revised in February 20 16, stipulates: "Social organizations shall have the status of legal persons." Articles 90, 9 1 and 95 of the General Principles of Civil Law make specific provisions on the basic legal conditions of the legal person system of social organizations. Although there is no direct reference to the concept of legal personality of religious groups, Li Jianguo, vice chairman of the National People's Congress Standing Committee (NPCSC), made a special statement on the draft general principles of civil law at the Fifth Session of the 12th National People's Congress: "After the draft general principles of civil law are adopted, the general principles of civil law will not be abolished for the time being." Therefore, the legal status of religious groups should be determined according to the provisions of Article 77 of the General Principles of Civil Law, and the establishment system, organizational structure and property management and distribution system of religious groups can be systematically adjusted according to the relevant contents of the General Principles of Civil Law, the Regulations on the Registration of Social Organizations and the Regulations on Religious Affairs.
2. About the legal person qualification of religious activity places. Article 92 of the General Principles of the Civil Law stipulates: "Foundations and social service institutions that meet the requirements of legal persons and set up for public welfare with donated property have been registered and established in accordance with the law and obtained the qualification of legal persons for donation. A legally established venue for religious activities that meets the requirements of a legal person may apply for registration as a legal person and obtain the qualification of a donated legal person. Where laws and administrative regulations provide for places for religious activities, such provisions shall prevail. " Articles 93 and 94 further clarify the organization and property management rules of the donated legal person.
In the era of General Principles of Civil Law, how to further improve the three types of legal persons of religious subjects has become a new topic of legalization of religious affairs.
Based on the above comprehensive analysis of General Principles of Civil Law, General Principles of Civil Law (Effective), Regulations on Religious Affairs and Regulations on the Administration of Registration of Social Organizations, the legislature has established two types of religious legal person systems, so that legal persons in religious organizations and places of religious activities can enjoy different rights and obligations and manage and dispose of different types of religious property according to their own nature and tasks. This innovative idea will certainly provide basic legal guidance for the revision of the Regulations on Religious Affairs and the formulation of the Detailed Rules for the Implementation of the General Principles of Civil Law.
First, the dual legal person system of "group+place" is set up, which provides a clear and effective legal basis for religious organizations to clarify their rights and obligations and protect their property according to law.
Religious groups at all levels (commonly known as "large groups"), as legal persons of social groups, usually do not directly carry out religious spiritual activities. As an association that unites religious people, its main duties are to ensure religious people to engage in religious activities according to law, safeguard the legitimate rights and interests of religious people, summarize and exchange religious work experience, organize religious professional education and training, seriously supervise teaching style and related discipline education, carry out internal and external exchanges, mediate internal religious disputes, engage in religious charity activities, and so on. In order to accomplish the above duties, its funds should mainly come from the membership fees of participating institutions (or individuals) and the appropriate allocation of state finance, and only the real estate as its workplace and other properties that maintain its operation (special donation income and self-operated income, etc.) enjoy ownership and use rights. ).
Places for religious activities mainly refer to temples, temples, churches, temples and other specific places for religious activities (commonly known as "small groups"), which are at the forefront of religious activities and have the closest relationship with religious believers. Believers' religious beliefs and donations mostly occur in religious places, and the donors in the willingness to donate are also temples and gods. The amount of property it holds directly affects the development of religious activities and becomes the actual owner and user of religious subjective property. The religious property managed by religious activity places includes not only religious immovable property such as temples, temples, churches and other buildings and structures, but also many religious movable property, such as Buddha statues, utensils, scriptures, livestock, income of religious self-employed, donations and intellectual property rights. In practice, there are also corresponding personnel and organizations to specifically manage, use and operate religious property. In view of this, it is more in line with the actual situation of this kind of organization to set the religious activity place as a donation legal person according to law.
In fact, judging from the nature of the subject of civil legal relations, the places of religious activities are legal persons whose main characteristics are property collection, such as temples, temples and churches. According to the theory of European continental law system, they belong to the nature of consortium legal person. Although the concept of consortium legal person is not adopted in the General Principles of Civil Law, the meanings of donation legal person (including foundation legal person and social service agency legal person) are basically the same. Based on convention and convenience for the public to understand and apply the legal person system, it is not only in line with the national conditions of China, but also a more desirable and realistic choice to continue to use the concepts of donor legal person and foundation instead of consortium legal person.
Before the promulgation of the General Principles of the Civil Law, the Legislative Affairs Office of the State Council considered setting up a legal person in a religious place in the Revised Draft of the Regulations on Religious Affairs (Draft for Review): Article 23 of the Revised Draft of the Regulations on Religious Affairs stipulates: "If a religious activity place meets the requirements of a legal person, it can be registered as a legal person with the consent of a religious group and after being reported to the religious affairs department of the people's government at or above the county level for examination and approval." Article 25 stipulates: "Management organizations shall be established and democratic management shall be practiced in places for religious activities." Compared with the provisions of the general principles of civil law on legal persons in places of religious activities, the basic spirit is completely consistent.
Second, the establishment of legal persons in religious activities places has many advantages, such as protecting the ownership of religious property, improving the management level of religious places and promoting religious charity.
Giving the donation legal person status to the religious activity place: (1) is beneficial for it to enjoy rights, perform obligations and assume responsibilities as an independent civil subject, strengthen the protection of religious property and safeguard its legitimate rights and interests. Places for religious activities can protect their own property rights, creditor's rights, intellectual property rights and other rights according to law, resolve all kinds of civil and commercial disputes involving religion, and enjoy preferential policies of tax exemption or reduction by the state. (2) It helps to clarify the relationship with religious groups and solve the contradictions arising from the overlapping of related interests and affairs. Liberate religious groups from the affairs of managing places, put more energy into doing educational guidance, training teachers, strengthening self-construction and running religious colleges, and give full play to their role as bridges and ties. (3) It is helpful to improve the self-management level of religious activity places, optimize and strengthen government supervision and social supervision. One of the necessary conditions for the establishment of a donor legal person is to have standardized articles of association and sound management institutions (including decision-making bodies, executive bodies and supervision institutions). By endowing religious venues with the status of donation legal persons, it can promote the establishment and improvement of management organizations and improve the execution of management systems. (4) Charitable activities contribute to religious activities. After becoming a legal person, it is more convenient to register charitable organizations in places of religious activities, such as issuing tax-free invoices, opening up fundraising channels, fully mobilizing the enthusiasm of charitable activities, and then gradually embarking on a professional and standardized development path. (5) It is helpful to solve the problem of "putting up a stage by religion and singing opera by economy". In the General Principles of Civil Law and General Principles of Civil Law, the provisions on the right of name and reputation of legal persons are also applicable to religious sites, which also has a positive impact on solving the problems of tourism development and religious fraud and donation in the name of religious venues. According to relevant laws and regulations, the regulatory authorities can punish, revoke or ban chaos such as "being contracted" and "being listed" on the grounds of "violating the purpose of public welfare" to standardize and promote the development of religious undertakings.
Third, whether and how to set up a dual legal person system in practice still needs to respect religious traditions and existing regulations.
In particular, it should be pointed out that for Catholicism, which implements the parish management system (which was deliberated and adopted by the Standing Committee of the Chinese Catholic Patriotic Association and the joint meeting of the Episcopal College in 2003), due to the special educational administrative tradition of this religion, the above-mentioned "dual legal person system" cannot be simply applied to the implementation of the general principles of civil law. On the contrary, we should respect the effective parish/group management system of this religion. The diocese shall register social organizations as legal persons in the civil affairs departments of the governments of provinces, autonomous regions and municipalities directly under the Central Government (Article 5 of the Management System of Catholic Dioceses in China), and the diocese management committee shall assist the bishops in spiritual cultivation and daily management of clergy and nuns, as well as the economic and financial management of the diocese and the development of diocese work (Article 3 1 of the Management System of Catholic Dioceses in China). Churches and clubs engaged in daily parish work under the guidance of bishops should be registered as legal persons with the approval of the religious affairs department of the government, but whether they have the right to control and manage religious property requires consulting and respecting the opinions of the Catholic Patriotic Association.
Fourthly, it opens up a legal space for religious colleges to explore and implement the legal person system.
In addition to the above two types of legal persons, according to Article 14 of the Revised Draft Regulations on Religious Affairs (Draft for Review), religious institutions can also apply for legal person registration.
In short, in the era of general principles of civil law, how to further improve the three types of legal persons of religious subjects has become a new topic of legalization of religious affairs.
(The author Yujun Feng is the director of the Law and Religion Center of Renmin University of China and a researcher at the National Development and Strategy Institute of Renmin University of China)