非营利民办高校的理事会治理及其制度完善

Governance and Improvement of the Council in Non-profit Private Colleges and Universities

民办高校理事会从诞生以来的信托实体至今逐步演化为民办学校的内设机构,从世界范围民办高校发展史看,其发挥了不可估量的作用。《民办教育促进法》在未区分非营利民办高校财产权的情况下,将理事会规定为民办高校的中枢决策主体,此种制度设计造成该法与《民法典》设置的法人类型不能完全对应,给非营利民办高校理事会治理造成了困难。在现实中,非营利民办高校理事会存在权力过于集中、校长治理权无法保障、缺乏监督机制等诸多问题。在未来改革中,应当以办学财产的归属和来源是否是捐赠作为区分非营利民办高校法人性质的标准,形成以理事会为核心、校长独立治校、教职工和党委共同监督的共治格局。

The private university council has played an important role in the history of the development of private universities worldwide.The Law on the Promotion of Privately-run Schools,however,fails to distinguish the property rights of non-profit private universities,while regarding the council as the core decision-making body of private colleges and universities.What’s more,the Law is incompatible with the type of legal person system set up in the Civil Code.In reality,some problems arise in the council of non-profit private colleges and universities,such as the council has too much power which weakens the chancellor’s power,and the lack of supervision mechanisms.The nature of non-profit private colleges and universities should be distinguished by whether the schools’properties are donated or not.In the future reform,a co-governance pattern should be formed in which the council is considered as the core,the chancellor runs school independently and the staff and the Communist Party committee jointly supervise other institutions.