《民法总则》法人分类制度反思及四分法进路建议

The Reflections on the Classification of Legal Entities in General Provisions of Civil Law and Suggestions on the Quartering Approach

传统的"企业与非企业法人"二分法,其内涵并不明晰,且具强烈的国家本位色彩,与现代经济社会和民法本质品格不相适应,构成中国法人制度之变革的内在动因。而此次《民法总则》中的三分法实属创举,然"营利和非营利法人"的分野存在逻辑结构、法律移植和区分实益上的局限性,特殊法人的设计亦疑窦重重。考察域外主流路径,德国法例体系的上层设计界限模糊,"一人公司"挑战"团体性"概念。是以,在立法论层面,我们应坚持公私法人的初始分类,同时以私主体利益需求之目的为导向,实现"共益法人、准公益法人、公益法人、营利法人"的四分法构造,期使民法回归私域功能属性。

The traditional " enterprise and non-enterprise" dichotomy has strong national standard color which is not suitable for the basic character of modern economy and civil law. In addition, it lacks the clarity of connotation. Those above are the driving forces of the change of Chinese legal entities system. The three-point act in the general provisions of civil law is an invention. However, it also subjects to the limitation of logical structure, legal transplantation and the practical benefits in the field of "profit-making and not-for-profit",the design of special entity is also problematic. On the other hand, In the main approach of foreign countries, the upper level design and the second boundary of the German legal system are ambiguous. The concept of oneperson corporation challenges the concept of group. Therefore, on the basis of original classification of public and private corporations, this paper puts forward the suggestion of the quartering approach, including public benefit corporation, quasi-public benefit corporation, profit-making corporation, common benefit corporation. It takes interests of private parties as its main purpose, and makes the civil law get the private function properly.