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中国慈善募捐法制建设研究

蔡科云[著]

慈善法 民政事业管理法 研究 中国

2017-07-01

978-7-5203-0964-6

311

5

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  • 内容简介
  • 书籍目录
  • 作者简介
  • 参考文献
内容简介

本书以良法善治理论为指导,运用法律概念的形式逻辑推演、制度文本的语义解释以及制度规范的导引建构等研究方法,从制度整合与规则体系完善的角度,描述了我国社会募捐、公益募捐、慈善募捐的特质和转型过程,梳理了作为规范事实的慈善募捐的发展脉络,探讨了作为法对象的慈善募捐的核心要素,分析了当前中央与地方、国内与海外涉及慈善募捐关系的制度文本展开方式、框架与内容,厘清了我国慈善募捐自身定位及外部监管中的动态不均衡及制度运行困境,并在整理、归类、评价纵向历史线索和横向国别地区立法线索基础上,探索了我国《慈善法》之下慈善募捐制度立、改、废的学术共识。作者对制度对象历史描述、制度理论演绎、制度问题分析、制度方案形成等,都提出了独到的见解。本书是国內第一部以制度分析为逻辑主线系统研究慈善募捐的著作,选题真实,文献检索充分,结构层次清晰,行交流畅,兼具学术性与可读性。

In today's world, modern philanthropy that "shows the true love between strangers" is on the rise. Charitable fundraising is a general term for charitable organizations that collect funds and property from the society and distribute, use and manage them for public welfare in order to enhance public welfare. The essence of fundraising is the process of "gathering" good wealth to the society and "dispersing" good wealth to the society, involving the three major areas of "gathering wealth - scattering wealth - financial management", which is an important lever for leveraging social welfare and condensing charitable resources, and is also an important supplement to the first and second distribution of social wealth. Under the background of the new era, charitable fundraising is essentially different from government administrative fundraising, enterprise public fundraising and individual private fundraising, and has similarities and similarities with public welfare donations, public welfare fundraising and social fundraising, but also has the core elements of "the statutory nature of the initiating entity", "the public welfare of the purpose and purpose", "the autonomy and voluntariness of internal governance" and "the non-profit non-distribution of organizational operation". The institutional orientation of charitable fundraising is the extension and democratization of people's power and the use of social power in charitable organizations. Based on this, charitable fundraising carried out by social organizations based on social power should be put in a "cage" and included in the scope of the rule of law. Institutionalized charitable fundraising is an important link in establishing public welfare integrity and ensuring the effectiveness of public welfare, and it is also a key area in the construction of China's charitable legal system after the promulgation of the Charity Law of the People's Republic of China. At present, the "knot" of China's charitable fundraising system is that the construction of the legal system for fundraising at the national level lags behind, and the construction of norms at the local level is uneven. The imperfection of pan-morality and strong politics, as well as the ambiguity and trial and error of the new charity itself, have led to standardized charitable fundraising becoming a scarce resource in society. The "solution" to the construction of China's charitable fundraising system needs to be based on the above "knots", strive to make charitable fundraising adhere to the rational and equal modern concept of charity and public welfare, learn from the extraterritorial experience of the United States, Britain, Australia, Japan, Hong Kong and Taiwan, take into account the historical resources of traditional Chinese charitable fundraising, and fully integrate the scattered and fragmented local fundraising rules that have been piloted in recent years in Hunan, Jiangsu, Guangdong and Shanghai. The implementation of China's proposition of "integration of charitable fundraising system and improvement of rule system" can be carried out from three levels: "fair institutional arrangements (especially the 'autonomous and voluntary' positioning of social power relative to government power), appropriate behavioral norms (ensuring the autonomy of social organizations' fundraising while overcoming arbitrariness, and designing and constructing a regulatory system for the design of behavioral boundaries for 'fundraising, donation, and use'), and professional leaders with both ability and integrity (especially the 'tracking, feedback, and closed management of fundraising members) publicity', to implement the duty of loyalty and diligence of senior managers of social organizations)". Among them, appropriate fundraising behavior norms are the focus of discussion. Fundraising behavior is a general term for the fundraising, donation, and use behavior of fundraising organizations, so it can be controlled for the input of fundraising in the organization and the output to the society: first, the input of fundraising in a social organization requires the "formality" of the organization itself as the premise, and the organization has a clear fundraising mission statement in the charter, and there must also be a balance and scientific internal governance structure of the social organization's "power organs, executive agencies, and supervisory bodies" that are independent of each other and mutually restrictive; Secondly, through the export of fundraising to the society through the organization, it is necessary to "no plan and no fundraising", no plan to accept, closed management of fundraising members, and at the same time open fundraising forms, and more importantly, the guarantee of a transparent fundraising process. The system of charitable capital chain under China's Charity Law needs to take "regulating fundraising", "protecting private rights" and "safeguarding public welfare" as the basic purpose, take the "standardization and transparency" of fundraising as the core of system adjustment, and strictly legislate and supervise the "two ends": the fundraising link of social organizations facing the society (gathering money) and the expenditure link of fundraising assets (scattered wealth). While the establishment of the legal system for fundraising, while "public fundraising rights" in social governance innovation that is divorced from political rigidity, it manages the fundraising link of charitable fundraising, and clarifies the rules for fundraising access (civil affairs license and supervision of fundraising organizations and solicitation practitioners), trust and restrictions on the use of fundraising materials (the boundary between public welfare charity and commercial profit), and information disclosure (the subject of information disclosure and the content of information disclosure). In terms of the legislative system, formal laws and regulations at the central and local levels are used to arrange the empowerment and limitation of social power, and implement the "openness" of the fundraising process of social organizations, the purpose of charitable fundraising is "public welfare", and the distribution of charitable resources is "public". In the future, the construction of charitable fundraising systems and groups that implement the principles of openness, public welfare, and public trust (three public) should not only allow charitable fundraising organizations to have clear entity authorization norms and procedural operational guidelines, but also implement fundraising responsibilities while strengthening internal governance and hardening external supervision. Keywords: Charity Law, Social Organizations, Charitable Fundraising, Public Welfare Donations, AbstractCharitable Collection is the summary of behaviors that charity organizations raise funds and property from the society for charitable purpose, and the process of public allocation,exploitation and management to promote the development of commonweal cause. Charitable collection essentially is to raise and allocate charitable assets from/to the society,involving how to raise,allocate and manage assets,as the lever to promote public service and collect the charitable resources,also the important supplement to the first and secondary allocation of social wealth. Nowadays charitable collection has the essential difference from the government Administrative fund -raising,the corporate public offering and individual private charitable donation,and some commonness with charitable donation,charitable solicitation and social donation,but also the central characteristics of legality of initiator,objectives for public benefit,autonomy and voluntariness in internal governance,non-profit and non-distribution in organization operation. Legal orientation of charitable collection is the extension of the people's right and the presence of democratization in application of social power in charitable organization. Therefore,charitable collection of social organization should be included in the rule of law. Institutionalization of charitable collection is of great importance to build up commonweal faith and ensure the effectiveness,and also the key area in charity legal system construction of China.At the present,the crux of charitable collection system construction of China is the backward charity legal system construction at the national level and the irregularity of local regulations. It is the Stereotype of panmorality and power politics,confusion and trial-and-error of new charity itself that makes the regularized charitable collection to be the scarce social resources. As to the solution of China's charitable collection system construction,it is the need of insisting on rational and equal contemporary philanthropy in charitable collection,learning the experience of America,British,Japan and HongKong and Taiwan,retaining traditional historical resources of charitable collection of China,meanwhile comprehensive integration of local regulations of pilot programs such as Hunan,Jiangsu,Guangdong,Shanghai,Beijing and Shenzhen.To implement institutionalization of charitable collection,discussion in three aspects can be done: the just system,especially the social power positioning autonomously and Voluntarily comparing to the government power; appropriate code of conduct ensuring the autonomy of social organization in charitable collection and avoiding the randomness,establishing the behavior boundaries and regulatory system on collection,donation and exploitation; and the professional leading force with both ability and integrity,particularly integration of members of the charitable collection for implementing tracking,feedback and publication of the loyalty,diligence and obligation of senior management of the social organization. The paper will focus on the appropriate behavior regulations of charitable collection. Charitable collection is the summary of collection,donation and exploitation of charity organization,therefore it can be regulated on the key nodes in inflow and outflow of organization.(1)Inflow of charitable collection requires regularization of social organization,and the charter of organization must clearly prescribes the missions of charitable collection,and the scientific and rational internal governance structure with policy-making institution and supervising institution and executive Institution mutual checks and balance; (2)charitable collection requires no program no conduct,no plan no acceptance,closed management to members of charitable collection,and to open the charitable collection form,and more importantly to ensure the transparency of the charitable collection process. In the future,the basic principles of the charity fund chain system under the China Charities Act should be regularization of charitable collection,protection of private rights,and safeguard of commonweal,with the standardization and transparency of charitable collection as the system adjustment core,strict legislation to regulate two ends,viz.,social organization conducts charitable collection(fundraising)from the society and expenditure of charitable collections(fund allocation). Charitable collection legal system construction need to open the right of charitable collection,regulate the segments of charitable collection,establish the regulations of charitable collection admittance,tax system,exploitation of charitable collection assets and information publication. In short,charitable collection needs work out clear-cut operation guidance,while implement strict regulations and punishments to create ethos and the standards of morality. Key words: Charities Act,Social organization,Charitable collection,Charitable donation(AI翻译)

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