对我国民法上非法人组织概念的质疑

我国民法典第102—107条对非法人组织的规范重点没有放在其"社团性"和"团体性"上,而是将其放在"不具有法人资格,但是能够依法以自己的名义从事民事活动"、"其出资人或者设立人承担无限责任"上,没有能够反映出非法人组织的本质特征。更为严重的是:(1)不区分经营性与非经营性非法人组织,一律让其成员承担无限连带责任。这不符合很多非经营性,甚至公益性非法人组织存在的宗旨,对其存在和发展不利,也不符合中国国情和比较法上的一般理论与实践。例如,中国法学会下属的许多学会都是典型的非经营性非法人组织,会员如何能够对学会的债务承担连带责任?无论从会员加入学会的愿意和内心、人们对学会的期望,还是习惯,都是不可能的。(2)明确把合伙企业纳入到非法人组织中去。这样一来,就彻底抹杀了非法人组织与合伙的基本区别,从而也就无从把非法人组织与我国法上的"两户"区分开来。另外,业主大会与业主委员会关系及主体性问题也应当在非法人组织的框架内得到妥善的解决。

Questioning the Concept of Unincorporated Organizations in the Civil Code of China

The provisions in Articles 102-107 of the Civil Code of China fail to focus on the "corporate" and "group" nature, the essential characteristics of the unincorporated organization, and instead highlight that "which does not have the legal person status but may engage in civil activities in its own name in accordance with law, and its members shall assume unlimited liability for the debts of the organization." What’s worse is that no distinction is made between business and non-busines unincorporated organizations, and all the members shall bear unlimited joint liability. Such provisions do not tally with the objectives of the non-business or non-profit organizations, and are unfavorable to the existence and development of such organizations. Such provisions also go against the general legal theory and practice at home and abroad and against Chinese context too. For example, many societies affiliated to the China Law Society(e.g., the Civil Law Research Society) are typical non-business unincorporated organizations. How can members bear joint liability for such societies’ debts? It is impossible for them to bear the liability, judging from their will, their heart, their expectation and habitual practice to join such societies. In the second place, the partnership is explicitly incorporated into the unincorporated organization. In this way, the basic difference between the two is obliterated so completely that there is no way to distinguish the unincorporated organization from the individually-run businesses and leaseholding farmhouseholds in Chinese law. In addition, how the home owners’ assembly relates to the home owners’ committee and which one is the legal subject shall be properly resolved, within the framework of unincorporated organizations too.