基層群眾性自治組織法人制度三論

The Three Main Issues of Legal Person System of Grassroots Autonomous Organizations

"基層群眾性自治組織法人雖在《民法典》中被定位為特別法人,但性質上應屬公法人,一是其成立的主要依據是《憲法》《村民委員會組織法》《城市居民委員會組織法》;二是通過履行一系列管理職能以實現“服務於公益”這一職能目的;三是財產來源的公共性。其章程不同于營利法人和非營利法人,而實際法律化為《村民委員會組織法》《城市居民委員會組織法》,即為法律性章程,主要原因在於《村民委員會組織法》《城市居民委員會組織法》的規定已經涵蓋了村(居)民委員會法人章程所需內容,實質上成了村(居)民委員會法人的章程;同時,法律性章程比一般私法人章程多了“強制力”這一執行力保障,能確保基層群眾性自治組織功能的實現;而且,只有法律性章程才能解決基層群眾性自治組織法人在自治過程中遇到的諸多問題,克服自治性章程的固有弊端。基層群眾性自治組織法人的民事能力受其“職能”的限制,主要體現為財產支配和交換能力、侵權責任能力、勞動合同能力與監護人能力;不能以自己的名義為交易行為,也不宜被賦予破產能力,除依法代行村集體經濟組織職能的村民委員會外,不能為他人提供擔保。"

"Although the legal person of the grassroots autonomous organization is conceptualized as a special legal person in the Civil Code, it is essentially a legal person of public law. Firstly, it is mainly based on the Constitution, the Organic Law of the Village Committee, and the Organic Law of the Resident Committee. Secondly, by performing a series of management functions, it is realizing the functional purpose of ' serving for the public welfare'. Thirdly, its property comes from public source. The regulations are different from for-profit legal persons and non-profit legal persons, and the actual laws are transformed into the Organization Law of Villagers Committees and Organization Law of Residents Committees. The reason is that the provisions of the Law on the Organization of Village Committees and Law on the Organization of Residents Committees have already covered the contents required by the legal person charter of the village (resident) committee, which has essentially become the charter of the legal person of the village (resident) committee. At the same time, the legal charter has more ' compulsory power' than the general private legal person charter, which can ensure the realization of the function of the grassroots autonomous organization; moreover, only the legal charter can solve the problem of the autonomous process of the grassroots autonomous organization legal person, and then overcome the inherent disadvantages of autonomous regulations. The civil capacity of the legal person of the grassroots autonomous organization must be restricted by its 'function', which is mainly reflected in the ability of property control and exchange, the capacity of tort liability, the capacity of the labor contract, and the capacity of guardian’s capacity. They cannot conduct transactions in their name, nor should they be granted bankruptcy capacity. They cannot provide guarantees to others except for the villagers’committee that acts as a village collective economic organization following the law."