机关、机关法人与国家法人说——基于国家组织法的考察

Organs,Organ as Legal Person and State as Legal Person——An Investigation Based on State Organization Law

从我国宪法的规定来看,机关、组织、机构、部门构成了我国国家组织法的基础性概念。在法学上,机关是相对于法人而言的,机关并非法人,而是法人的一部分,机关使法人具有了行为能力。组织更多是描述性的,它源自国家有机体的理论。目前,机关法人说带来的最大问题就是归责上的困难。

From the perspective of the Constitution of PRC,organs,organizations,agency and departments constitute the basic concept of state organization law in China.In jurisprudence,the organ is relative to the legal person.The organ is not a legal person,but a part of a legal person.The organ makes legal person have the capacity to act.Agency is a part of organ.The core difference between organ and agency is that agency does not have independent functions and powers,and the jurisdiction of agency is covered by that of the organ.Organizations are more descriptive,derived from the doctrine of state organisms.Different from the organ relative to legal person,the department is relative to the administrative body.At present,the doctrine of organ as legal person adopted by China is neither in conformity with the nature of private legal person,nor public legal person,and it also brings difficulties in attribution of legal responsibility.We should change the doctrine of organ as legal person to the doctrine of state as legal person.