试论我国法人主体资格和经营资格之分离性

Discussion on the Separability of Subject Qualification and Business Qualification of Legal Person in China

我国立法中已经存在将法人主体资格和经营资格分开规定的萌芽,但在法人申请设立,尤其是清算阶段,缺乏对不同情形的区别化、详细化规定。自主清算中的法人仍然享有主体资格和经营资格(只是经营范围被限制而已),被动清算中的法人仅享有主体资格,丧失了经营资格。如此的立法与理论和实践是一脉相承的,再辅之以法人主体资格的历史渊源,经营范围的限制学说以及分离主义的现实意义,充分论证了我国法人主体和经营资格的分离性。

There is a bud in legislation of China to separate legal person＇s subject qualification from business qualification,but in the period of applying for establishment,especially liquidation,there is a lack of regulations which are paticular and in detail to different situations. Legal person in active liquidation still has subject qualification and business qualification.（ Its business scope just has been limited） Legal person in passive liquidation only has subject qualification,but no business qualification. Legislation like this remain connected with theory and practice. With the auxiliary help of the historical origin of subject qualification,the theory of limited business scope and the realistic meaning of separatism,the nature of the separation of subject qualification and business qualification of legal person in China can be adequately proved.