潮流与现实悖反:我国机关法人之定位与重构

Trend against with Reality:The Definition of China's Legal Person of Government Units and Its Reconstruction

虽然国内外主流公私法理论基本认可国家主体性二元结构理论,大陆法传统更是认可国家的法人地位而否定国家机关的法人资格,并在立法上形成了公共机构非法人化的事实,但我国受前苏联国家特殊民事主体理论和国家机关法人理论影响,从20世纪50年代开始,就在立法和理论上认可了国家机关的法人地位并延续至今。我国这种国家机关全面法人化的立法事实不仅与世界范围内存在的非法人化潮流形成逆反,造成公法人向私法的遁入,而且与我国司法实践中普遍存在的国家机关的非法人化形成悖反,使机关法人的独立责任在相当程度上成为虚名。因此,在界分公法与私法的基础上,将国家机关的行为主要限定在公法领域,从而在私法领域中原则上否定其独立法人地位,只令其具有辅助国家私法人格与公共职能实现之作用,只有为实现公共利益与公共职能之必要时,例外地承认其独立法人地位。

Although the dual structure theory of national subjectivity has been almost acknowledged by the dominant theory of public and private laws both at home and abroad,the tradition of continental law prefers to acknowledge the nation＇s legal person status but deny the legal person qualification of state organs,and comes into being the fact of the non-legal personalization of public authorities in legislation.Yet influenced by the former Soviet Union＇s theories of special civil subject and state organ as legal person,China has acknowledged the legal person status of its state organs legislatively and theoretically since the 1950 s and continued until now.The legislative fact of complete legal personalization of state organs in China is conflicted not only with the trend of non-legal personalization all around world,giving rise to the retreat from the legal person of public law into private law,but also with the non-legal personalization of state organs ubiquitous in China＇s juridical practice,resulting in the independent responsibility of official organ as legal person only existing in name only to a considerable degree.Hence,based on the demarcation between public and private laws,the behavior of state organs should be limited mainly in the field of public law,in order to deny their status of independent legal person and make them have the function of assisting to implement the country＇s personality in private law and its public functions.Only when it is necessary to realize the public interests and public functions could the state organs＇ status of independent legal person be acknowledged exceptionally.