The law on charity, adopted on 16 march 2016 by the fourth general assembly of the twelfth national people's congress, is the basic law for the innovative management of society in the country. Chapter vi of the law focuses on “charitable property”. The legal nature of charitable property, which directly affects the legal status of such property and the legal rules surrounding its establishment, has a bearing on the security of charitable property and the responsibilities of those who administer it. This paper provides a theoretical overview of the issue, taking into account the relevant provisions of the law and the doctrine of trust, to argue that charitable property is an independent social property and that charitable law is a social law。
The normative basis for the nature of charitable property
The principal normative element of the charitable act on “charitable property” is “property of charitable organizations” (art. 51), while trusted property administered by trustees of charitable trusts is charitable property without objection. Charitable property is that of a donor, charitable organization (or trustee of a charitable trust) or beneficiary, private property, public property, public property or social property, which is not clearly defined by law and which is at the heart of this discussion。
Article 7 of the law on donations of public interest (1999): “property granted to public associations of public interest and its value added shall be public property, protected by state law, and no unit or individual may be appropriated, misappropriated or destroyed”. The concept of “social public property” has emerged, but its specific legal nature is not clear. Indeed, a similar concept of “socialist public property” emerged in the constitution of the people's republic of china, article 12, paragraphs 1 and 2, of which states: “socialist public property is sacred. The state protects socialist public property”. The second paragraph then goes on to state that “it is prohibited for any organization or individual to appropriate or destroy by any means the property of the state or of the collective community”, and it seems logical to regard “socialist public property” as the property of the state and the collective (public)。
The concept of “public property” is further interpreted in our criminal code. According to article 91 of the penal code, public property is defined in the criminal code as property: “(i) property owned by the state; (ii) property owned by the collective labour force; (iii) property used for social contributions or special funds to alleviate poverty and other public goods. Private property in the administration, use or transport of state bodies, state-owned companies, enterprises, collective enterprises and popular groups corresponds to the private property provided for in article 92 of the same law; the logic is that it is either private property or public property, reinforcing the notion that public social property is a public property, according to which charitable property should be public property. However, even in the context of the provisions of the penal code, it can be seen, at least, that “social public property” is a broader concept than “public property”, which, in addition to “public property” such as state property, collective property or other “public property”, includes (i) “property for the purpose of poverty alleviation and other public goods or special funds” and (ii) “property for private property in the administration, use or transport of state bodies, state-owned companies, enterprises, collective enterprises and people's groups”, in which (ii) the criminal code does not deny its intrinsic nature as private property, but it is not disputed that private property is regarded as public property (in terms of public property) from the point of view of strengthening the protection of criminal law; and (i) is precisely the point of concern here, namely, “property for the purpose of poverty alleviation and other public goods”, which is directly included in the scope of public property, but which is not directly equated by the criminal code with public property. So how does the nature of “social donations or special funds for poverty alleviation and other public goods” go further to understand the nature of property for philanthropy
Ii. Charitable property independent of the donor's property
Charities are carried out in at least the following ways: first, direct donations and gifts to individuals or groups in need of financing (contributions to contracts, legal acts of both parties); second, introduction of property to establish legal persons or foundations of public interest (unilateral legal acts); [1] third, donations to organizations of public interest, public benefit funds, etc., [2] earmarked; and fourth, establishment of trustes of public interest. In either way, charitable property is no longer the property of the donor。
First, in the case of a gift contract, property rights are transferred to the grantee after delivery of the property to the grantee. In this legal relationship, the grantee is a specific, identifiable natural or legal person. Except in exceptional circumstances provided for by law (sections 192 and 193 of the contract act), the grantee cannot revoke the gift. Moreover, although the gift contract is a promise, and the grantee can withdraw the gift prior to transferring the property, the grant contract is even enforceable “in the form of disaster relief, poverty alleviation, etc.” (section 41 charitable act, section 188 contract act). As a result, the attribution of property is clear and cannot become the property of the donor. Since a simple one-to-one direct gift does not create sustainable and efficient mechanisms of public benefit and makes it difficult to achieve the effectiveness of “caught-for-fish” the charities act does not regulate such acts as charitable acts。
Secondly, in the case of public-interest legal persons, such as charitable foundations, the donated property becomes the property of a legal person and is no longer the property of the donor. When charitable organizations such as foundations are established, the property donated becomes the initial property of the foundation (art. 51, subpara. 1, of the charitable act). In comparative law, in order to preserve the personality and the long-term viability of the foundation's legal person, it is theoretically similar to the “capital maintenance principle” of the corporate legal person, who generally cannot use the foundation's principal。
Thirdly, in cases where property is donated to established charitable organizations (art. 51, subpara. 2, of the charitable act), or where a charitable trust scheme (project) is set up to join an established charitable trust scheme, it is obvious that such property does not belong to the donor。
Fourthly, when the purposes of charitable organizations and trusts are or cannot be achieved and the charitable property has no right to belong to the person, the property is used for other charitable organizations or charitable trusts for the most recent public good purposes in accordance with the approximation principle (cy 瞤res doctrine) and is not allowed to give rise to the return of the donor unless the donor agrees. The reasons for this are at least as follows: first, the large number of donors makes it economically or de facto impossible to return them. Second, donors may have received tax and other privileges for donation of property, and therefore the return of the original donation may lack legitimacy. Finally, and perhaps most fundamentally, by the very nature of the law, donated property has transferred title to property other than that of the donor and can no longer be returned to the donor。
Charitable property independently of the beneficiary's property
According to the principles of charitable law, beneficiaries of charitable property generally do not have the right to enforce the charitable property, i. E., it is not the property of the beneficiary until it is specifically distributed to the beneficiary. The provisions of the charitable act do not grant beneficiaries the right to enforce charitable property. For example, the question of who can enforce a charitable trust has always been a matter for exploration。
In broad terms, charitable (public goods) trusts are also purpose trusts, as are non-public goods trusts, which do not require specific beneficiaries to enforce such trusts. Natural or legal persons or other organizations that have the opportunity to benefit from public trust generally do not have the right to enforce such trust (hauxwell v barton-on-humber udc [1974] ch. 432; charities act 1993,s. 33). [3] in the united kingdom, the public service trust was previously enforced primarily by the attorney-general in the name of the king (queen), while its general administration was supervised by the public service act 1993,s. 1. In the united states, the attorney general (attorney general) or other officials are authorized to enforce the trust on behalf of society. When a trustee or other person with a special interest initiates proceedings to enforce the trust, the attorney-general is usually required to become a party. [4]
In general, there are no beneficiaries in charitable (public goods) trusts; even when it is in the beneficiary's position to exist, since the beneficiary is an unspecified majority, it is in order to ensure the balance and fairness of the trust mechanism that there is a need for a fiduciary watchdog. Thus, those who receive benefits from charitable property are not property owners of charitable property, and the benefits they derive are regarded as reflections of the public interest, not as beneficiaries. The true “beneficiary” is the whole of society. No one who can benefit from the operation of the trust is the beneficiary of the trust. The purpose of trust operations should be those who directly benefit them. If the trust benefits an individual or a legal person by accident, the natural or legal person who profits is not the beneficiary, nor can they enforce the trust (rest. 3d §48). For example, if the trustee is instructed to invest a portion of the trust property in the form of a bond to a particular company, the company is naturally not a beneficiary and the trustee cannot be compelled by litigation to comply with the directive. The beneficiaries of the trust, on the other hand, may be subject to additional liability for damages caused by the trustee's failure to comply with a breach of a valid trust clause. [5] similarly, those who benefit from a charitable trust are not beneficiaries, nor are “beneficiaries” of a charitable trust. It is generally accepted that society does not have the right to enforce trust for those who benefit from it。
Although modern trust laws are moving in the direction of recognizing the rights of potential beneficiaries of charitable trusts (more precisely referred to as “recipient”) to enforce trusts, it is still not possible to consider charitable property as the property of those potential beneficiaries。
Iv. Charitable property is independent of charitable organizations and charitable trusts ' own property
The trust act establishes the legal status of trust property as special property independent of the property inherent in the individual of the trustee (in particular chapter iii of the trust act). The fact that the trust property of a charitable trust is naturally not an inherent property of the trustee does not require further elaboration. It needs to be briefly explained here that in charitable foundations, charitable property is also a trust independent of the inherent property of charitable organizations. Where property is donated with a purpose to a charitable organization, as in the case of the establishment of a public trust, the donated property becomes independent of the charitable organization's own inherent property, and the charitable organization itself becomes a “trustee” for the charitable property. This is often overlooked and needs to be explained。
The majority of charitable organizations in our country are corporate entities of civil society with official or semi-official backgrounds, whose creation is financed by financial allocations, donations from established institutions and individuals, which constitute the property of the legal persons themselves (the term used in the relevant legislation is “funds”). During the lifetime of charitable organizations, property donated by individuals and institutions in society, which is generally conditional and for specific purposes, may in many cases be set up separately as “funds”, which may be distinguished from the assets of the foundations themselves after they have been “coloured”,[6] although under the umbrella of the charitable organization, it is not the property of the charitable organization itself. This can be confirmed by publicly available information on the websites of charitable foundations. Charitable foundations regularly publish accounts in two categories, those of legal persons themselves and those of separate funds. The purpose of these practices is to determine the independence of these funds. Article 53, paragraph 1, of the charitable act also provides that “charitable organizations shall register, strictly regulate and earmark collected property” and specifies the independence of charitable property collected by charitable organizations. In this sense, charitable organizations become trustees of these charitable funds and are subject to obligations and responsibilities similar to those of trustees under trust law. Thus, the doctrine of trust permeates the jurisprudence of legal persons. [7]
Thus, three situations arise in the management of charitable property by charitable organizations such as foundations. First, the founders of a charitable organization establish a charitable legal person, the original part of which is property forming the personality of a charitable legal person (art. 51, para. 1, of the charities act), which may be described as the charitable legal person's own property (inherent property), and the directors and boards of charitable legal persons, for the management of which the management of the property of the company is the responsibility of the director of a similar company; second, the charitable legal person receives donated property, which is independent of its own property, is the subject of a similar fiduciary responsibility; third, under the charities act, the charitable legal person is the trustee of a charitable trust directly (art. 46 of the charities act), and the charitable organization is the subject to the related management function in accordance with the provisions of the charities act concerning charitable trust and trustees in the trust act. The second and third situations should apply the doctrine of trust either directly or indirectly, but the distinction between the two was an issue that merited further study。
V. Charitable property is not public property, let alone government property
(i) case analysis: contribution “aftershock” for the yuk tree earthquake
On 27 may, following the 2010 yuk tree earthquake, the state council issued its opinion on policy measures to support the recovery and reconstruction of the yuk tree earthquake (document 16). The document requires the central authorities and institutions such as the red cross and the general association of charities to “directly allocate” the donated funds received to qinghai province and to integrate them into the disaster recovery and reconstruction plan, “with qinghai province as an integrated arrangement for rehabilitation”。
In addition, as early as 18 april 2010, the ministry of civil affairs issued a circular on the preparation of a “4. 14” earthquake relief donation for the yuen tree, which launched the first step towards the official collection of civic charity funds. The most important elements of this document are the following: the first is the civil service at all levels; the second is the 15 social organizations with official backgrounds and the public fund. According to the document, in the case of other organizations that have undertaken disaster relief fund-raising activities, the contributions collected are transmitted to the above-mentioned institutions. This has given rise to a wide range of comments from society. [8]
(ii) independence of charitable property from government property
According to scholars, the government's practice of restricting collection organizations is essentially a disguised administrative authorization. It limits, on the one hand, the legitimate right of public interest organizations to collect funds, and, on the other hand, the right of citizens to choose.[6] the most serious inaccuracies of this practice are that the good money donated by the population belongs to “society” rather than to the government, which is two different concepts. In the absence of a suitable subject, the government may be the trustee for these good moneys, but the executive power in hand may not be used to compel the government or its appointed body to be the sole trustee. Moreover, charities, upon receipt of a favour, become trustees of the favour and have no right (and no obligation under whose direction or order) to “remit” to the government the property they administer, which constitutes a breach of their fiduciary obligations。
Take trust as an example. The trust mechanism creates independent property, which is neither the property of the donor (client), nor that of the recipient (beneficiary) until it is actually distributed to the person in need of assistance, much less that of the trustee (although nominally his property) and of the state. Such independent property and independent operational mechanisms should be nurtured to counter the almost ubiquitous residual rights of the state — for example, under the rules of property law and inheritance law, such property was ultimately owned by the state or by a group of persons who did not have such property. All contributions collected by public service institutions are administered by the government in a unified manner, not only against the wishes of donors, but also on suspicion of encroachment on private property rights by public authorities. In interpretation, public benefit funds, legal persons of public interest and even property in public trust cannot be considered public property, otherwise the government, as trustee of public affairs, can decide for itself how and for what purposes the funds are used, etc., which is a serious violation of charitable and fiduciary jurisprudence。
The number of charitable trusts currently in existence in the country is very small, but many charitable funds are based on the model of legal persons of public interest (philanthropy). As mentioned earlier, the fact that the legal personality of a foundation after its establishment is in fact in the position of trustee when it receives donations on a daily basis is often ignored. At that point, the principles of trust law, in particular public trust law, should apply。
Philanthropy is one of the four pillars of the social security system, in accordance with the decision of the central committee of the communist republic of china on a number of major issues in building a socialist harmonious society. If the three pillars of social security, social assistance and social welfare are primarily government-driven, then the power of charity comes mainly from civil society. With china's growing civil society and the strong need to build a harmonious society, charity has its own space and can make its own difference. This is an important context that charitable legislation cannot ignore。
Vi. Conclusion: the nature of charitable property and social law
As a result of this argument, it can be seen that charitable property is not the property of the donor, nor of the potential beneficiary, and is therefore not private property; public goods are not public property, much less government property, and therefore the government is not entitled to dispose of them in its capacity as an owner or as a representative or agent of the common property. The pro bono property is attributed only nominally to the recipient institution or trustee, but the institutions or trustees are also mere nominal title holders and do not enjoy benefits from them (of course, fixed operating costs and funds and even fixed administrative remuneration and management costs do not amount to benefits from pro bono property, article 60 of the charities act) and are therefore not substantive property owners. Ultimately, pro bono property should be interpreted as independent property for purposes. This is similar to the characterization of trust property, i. E. Trust property is property that does not belong to anyone. This would remove the interference of donors and public power and ensure the fulfilment of charitable purposes。
Charitable trusts and charitable organizations cannot avoid using the independent jurisprudence and mechanisms of trust property to create independent property for charitable purposes that separates such property from the risks of donors, administrators, beneficiaries and other subjects and avoids interference by those subjects in the operation and realization of the property. Independent property contributes to the creation of an intermediate force in society. The charitable system is of great relevance in promoting philanthropy, fostering the formation of social organizations and diversifying social management. In other words, the independence of ngos and charitable organizations should be based on a material basis that is not private, much less public, and that is relatively independent. The false and non-characterization of property rights by trust is meeting this requirement. [9] the administration of trust property for this purpose solves the problem of mechanisms and it can be said that trust and non-profit organizations have natural links。
The research perspective on the concept of “social law” is varied. In the view of the authors, a useful attempt is to understand the concept of social law from the point of view of adjustment. We should think about the purpose of the adjustments that such an area as “social law” seeks to achieve. A major adjustment of social law should be aimed at forging the unity of social forces. Such solidarity of social forces may include, at a minimum, the solidarity of rural villagers, urban residents, industrial workers, consumers and industry. This solidarity is different from that which is combined through administrative mechanisms, in the sense that village organizations, population organizations, trade unions, consumer protection and industry self-government are not purely private or purely public law, but rather have the attributes of social law, which in turn cannot be understood as a simple combination and mixture of public and private law. The value objective of social law should be to strengthen the autonomy and self-organization of various non-governmental social organizations and to create a third sphere independent of private and government, so as to fill the gaps in social regulation by the executive branch of government; so as to overcome the shortcomings of private atomization, so that private individuals can jointly handle public affairs and so that organized individuals, on the one hand, have the capacity to confront powerful private subjects - - commercial enterprises, on the other hand, have the capacity to counter the improper exercise and abuse of public power。
