私法权利的转型——一个团体法视角的观察

The Transition of Private Right from the Perspective of Private Orgnazition Law

近代私法主要是个人法,随着结社自由原则的社会实践,团体和团体法的现象已注入私法体系,成为改造近代私法、私法人和私法权利的重要力量。私人团体由同质性成员自由结社所组成,以保护成员利益作为它的固有职能。团体主义是对极端个人自由主义的修正。团体在保护成员个人权利和集体权利的同时,也限制了团体成员的权利和自由。在当代社会,团体逐渐承担了多种社会职能,却并未改变团体的私法人属性,团体法也未变为社会法。社会法旨在规定异质性成员相互磋商机制,它对特殊社会成员施以有限度的特别保护,而与团体法分属不同层面上的法律概念。

The modern private law is mainly the law regulating the relationship between individuals. Along with the practices of freedom of association,the phenomenon of organizations have been put into private law,and have became the important forces to transform the modern private law,private personalities and rights. Private organizations are made up of homogeneous members according to the freedom of association,and its inherent functions are to protect its member's interests. Corporatist is a modification to the individualism,thus organizations protect individual and collective rights of its members,and also restrict its members' rights and freedom. The modern organizations and corporations have gradually undertake various social functions,however,these do not change the essential attribute of private legal person,and the law of organization and corporations do not become the so-called 'the social law'. The social law is a mutual consultation mechanism among heterogeneous members,so far it provided a limited and particular protections to the special members of society,but differ from the law of private organization.