慈善法的公法化嬗变——于《慈善法》制定前

Development of Charitable Law into Public Law:Before the Promulgation of Charitable Law

晚近以来,慈善组织之定位脱离既有之社团路径,成为国家行政职能制之延伸。故而,慈善组织之专业性有所加强,而其私法特性却受到限制。与之相对应,监管机构和慈善立法亦皆出现了诸多之前未有之新特性,包含慈善团体、监管部门以及慈善立法等三个方面。其中,在组织治理上,市民社会之基本原则受到限制,组织法人面纱亦受到刺穿,组织专业化趋势明显;在监管机构方面,监管机构人员配置日渐专家化,监管机构内部分工专业化;在慈善立法方面,慈善法之专业类型细分化,行政化味道日渐浓厚。这些新特性共同佐证了慈善法之公法化转向。此种转向在两大法系同时出现,并有汇流之趋势。

Recently, many charitable organizations have discarded their characters as associations and taken the duty of public administration which should have been undertaken by the government. Therefore, the professional skills of these organizations have been strengthened, while the civil law characters have been restricted. With respect to these changes, some other changes also occurred in the regulatory authority and the legislation of charitable law. These changes mentioned before have demonstrated that the charitable law is turning into public law. This redirection has appeared in both law systems, and is going to flow together.