足球改革背景下中国足协法律地位之困境及破解

Dilemma and Solution:Reflection on the Legal Status of Chinese Football Association in the Background of Football Reform

在本次足球改革背景下反思中国足协法律地位,可以发现,存在"政社分开、依法自治"的改革目的和行政主体留恋于自我定位之困境,由此也导致《中国足球协会章程》中的"法律授权"条款与排除司法审查条款在法律适用上的冲突。造成中国足协法律地位不明的原因是多方面的,既有足协自身定位上的模糊,也与法律解释存疑、理论回应乏力有关。本质上,中国足协权力来源于成员签订协会章程这一社会契约,将中国足协定位为私法主体符合本次足球改革的目的。由此,中国足协可以获得行政诉讼上的豁免,但不能排除刑事监督、行政监管和民事司法审查。应当积极发挥私法上社团罚的救济机制,解决足协处罚无法得到外部救济的困境。

When reflecting the legal status of Chinese Football Association in the background of current football reform, it is found that there is dilemma between the reform goal of dividing government and society so as to achieve autonomy by law and the self-definition as an administrative subject. This, as a result, leads to the conflict between clause of law-authorizing organization and the clause of excluding the judicial review. Multiple reasons contribute to the unclarification of current legal status of Chinese Football Association, including its vagueness in self-recognition, the failure in legal interpretation and the weakness of theoretical response. Essentially, the power of Chinese Football Association was obtained from the consensus agreement of its members as a social contract. Regarding Chinese Football Association as a private body satisfies the goal of current football reform. Therefore, it is possible for Chinese Football Association to gain the exemption from administrative litigation, but still under the criminal supervision, administrative regulation and judicial review. The remedy system of club penalty in private law should be positively exerted so as to solve the dilemma of not being able to get external remedy for the penalty from Chinese Football Association.