日本公益法人制度及其对我国的启示

Research on the System of Public Welfare Legal Person in Japan and the Enlightenment to Our Country

法人是除自然人以外最主要的民事主体,其相关问题受到学界乃至实务界的广泛关注。2017年10月,我国《民法总则》正式施行,对法人的类型作了基础性的重构,基于此,相应的配套制度也将随之发生变化。关于公益法人的概念,与民法总则中体现的非营利法人的概念多有交叉和重合,而非营利法人制度中的捐助法人的创设,也被认为是对公益慈善事业的一种推进。在公益事业蓬勃发展的时代背景下,综观我国公益组织的兴起,与邻国日本多有相似之处,而在制度构建上却有很大的差距。大陆法系的土壤在日本培育较早,其法人制度发轫也较早,公益法人制度在日本经历了几个变迁阶段,每个阶段也存在特有的问题,2008年日本施行了全方位的公益法人制度改革,后续又对一些配套的公益法人制度进行了修正,较为典型的如2016年社会福祉法人制度的改革。这一系列的动作使日本逐步建立了较为完善、稳定的制度,现行制度一方面促进了公益组织的规范化、法人化治理,另一方面也有力推动了公益慈善事业的发展。

Legal persons are the most important civil subjects beside natural persons,and the related issues of them are always a concern theoretically and practically. In October 2017,General Provisions of the Civil Law in China came into effect and made a fundamental reconstruction of the types of legal persons. The correlative matching systems are under the changement accordingly. The concept of public welfare legal person overlaps a lot with non-profit legal person stipulated in General Provisions of the Civil Law,and the establishment of the concept of donation-based legal person is also considered to be a promotion of charity. As the public welfare undertaking continue to thrive,the number of public welfare organizations is on a sharp increase,which has many similarities with our neighboring Japan. However,speaking of the construction of legal system,there is a big gap between us. The civil law system and the legal person system were established earlier in Japan. The system of the public welfare legal persons had undergone several stages in Japan and there were some specific problems in each stage. In 2008,Japan took a comprehensive reform about the public welfare legal persons; thereafter the supporting system about public welfare legal person was also modified.One of the most typical examples is the reform of the social welfare legal person system in 2016.Through the reform,The supply system of the social welfare service was enriched and improved. The actions Japan has taken step by step made a contribution to the establishment of a excellent and stable system. On the one hand,the current system has promoted the legal governance of the public welfare organizations; on the other hand,it has also promoted the development of public service.