论“第三部门”法对传统公法与私法之分的突破

The Challenge of Third Sector's Law to the Theory about Public Law and Private Law

20世纪70年代以来,"第三部门"运动席卷全球。如今,第三部门不仅在活动内容上不断增多,而且在活动范围上也日益国际化。本文从界定"第三部门"的涵义入手,在第一部分分析了第三部门在发达国家和我国的现状。第二部分评析了区分传统公法与私法的几个理论。第三部分从不同角度分析"第三部门"法突破传统公法与私法之分的理论基础。第四部分分析了"第三部门"法在我国的困境,包括立法层次低、门槛过高、法律内容的缺陷、法律技术的缺陷等,最后提出几个建议,如制定《民间组织法》、改革政府管理体制、完善第三部门的内部管理、明确政府对第三部门的扶持、社会责任的承担、公益诉讼等。

Third Sector has developed all over the world since 1970s, Nowadays, Third Sector is prosperous and becomes internationalized, This article starts with defining ＇ Third Sector＇ and the first part analyzes the sit- uation about Third Sector in the developed countries and in our countries. The second part discusses some theo- ries about differences between public law and private law. The third part analyzes some theories that Third Sector＇s Law has been challenging with the theory about public law and private law. The forth part shows theproblems about Third Sector＇s Law, such as legislative level is low, the requirement is hard to satisfy, the regu- lations are absent, the legal techniques have problems, and so on. At last, some suggestions are given to develop the Third Sector＇s Law, such as making the Civil Organization Law, reforming the system on governmental management, reforming the interior management of Third Sector , encouraging the support of government to Third Sector, taking on the Social Responsibility, and so on.