《慈善法》中的公益原则及其解释进路

The Principle of Public Welfare in the Charity Law and its Interpretation

慈善法中的公益原则具有特殊意涵:其要求慈善目的积极地让公众受益,即在质上具备有益性,在量上满足公共性。该原则构成慈善法的制度基石,是慈善认定、政府监管与财税优惠的逻辑起点。据此,现行法试图通过否定利害关系人等私益、互益,承认冠名权这一附属私益来解释公益原则。但在公共性上因为过于抽象化而无法有效回应部分群体受益、公私益混合等现象,在有益性上则由于忽视创设基本规则而无法合理判定某目的是否带来慈善法上的利益。为有效应对这些解释困境,应结合公益原则的制度定位系统完善其解释进路:在公共性上,对利害关系人与附属私益加以类型化处理;在有益性上,理顺公序良俗、慈善目的与利益增量的递进式关系。

The principle of public welfare in the Charity Law has special meaning: it requires charitable purposes to actively benefit the public, that is, be beneficial in quality and satisfies the public in quantity. This principle constitutes the cornerstone of the Charity Law, and is the logical starting point for charity recognition, government supervision, and fiscal and tax incentives. Accordingly, the current law attempts to explain the principle of public welfare by denying the private interests and mutual benefits of interested parties, and recognizing the subsidiary private interests of naming rights. However, in terms of publicity, it is too abstract to effectively respond to the phenomenon of the benefits of some groups and the mixture of public and private interests. In terms of benefit, it is impossible to reasonably determine whether a certain purpose brings benefits in the Charity Law because of ignoring the creation of basic rules. In order to effectively deal with these interpretation dilemmas, the interpretation approach should be improved in conjunction with the institutional positioning system of the principle of public welfare;in terms of publicity, the interested parties and subsidiary private interests should be categorized;in terms of benefit, clear the progressive relationship between public order and moral, charitable purposes and profit increments.