论捐助法人主管机关撤销权及其制度完善--以《民法典》第94条为切入点

The Revocation Right of Foundations'Regulators and Its Institutional Improvement--Taking Article 94 of the Civil Code as a Entry Point

《民法典》第94条确立捐助法人主管机关撤销权制度,以强化对捐助法人监督力度,维护捐助法人公益目的。但尚存撤销权行使主体冲突、程序不明与责任模糊问题,容易最终损害公益目的。其原因在于,现行法忽视了撤销权行使与利害关系人道德风险、捐助法人自治之间的内在张力,主管机关撤销权行使行为的公法职责与特殊公益诉讼双重属性,以及内部机构成员的慈善受信人特质。据此,应明确利害关系人行使撤销权时主管机关共同参与机制,并适当限缩解释利害关系人范围;明确主管机关行使撤销权的法定职责,并创设撤销权行使行为与公益诉讼衔接机制;规定内部机构信义责任,并赋予主管机关以责任减免权。

Article 94 of the Civil Code establishes the system concerning the revocation right of foundations'regulators,so as to strengthen the supervision of foundations and to safeguard their public welfare purposes.However,there are still some problems in the practice of revocation right,such as conflicts existing between public and private parties,unclear procedures and a vague liability mechanism,which may weaken or damage foundations'public welfare purposes.The reasons lie in that the law ignores the inherent tensions between the exercise of revocation rights,the moral hazard of interested parties and the autonomy of foundations,the dual attributes of regulators'exercise of their revocation rights as a public law duty and a special public interest litigation,and the nature of a foundation'internal organs as charitable fiduciaries.Accordingly,regulators should participate in the lawsuits brought by interested parties who exercise revocation rights,and the scope of interested parties should be interpreted restrictively;the law should clarify the exercise of regulators'revocation rights as a public law duty,and create the cooperative mechanism uniting revocation rights with public interest litigations;and the law should stipulate internal organs'fiduciary duties and authorize regulators to relieve their liabilities.