英國慈善信托力求近似原則初探
發(fā)布時間：2018-12-24 14:20
【摘要】：力求近似原則是英國慈善信托領域最為靈活和重要的制度安排。這一原則是解決慈善信托慈善目的不能按捐贈人目的實現(xiàn)時,法官借助有限的自由裁量權保證尋求與捐贈人最為相近的慈善目的使慈善信托得以存續(xù)的機制。力求近似原則在英國慈善信托特殊要件中的"慈善目的"和"公共利益"之間實現(xiàn)了一種動態(tài)平衡,實現(xiàn)了公權有限度介入私權、私益兼顧公益的最佳匹配。力求近似原則的起源與宗教社團接受教徒土地捐贈形成的慈善信托極為有關。隨著宗教改革和教會的衰落,王室收歸了慈善信托以及力求近似原則的管轄權,繼后這一原則又被衡平司法承繼用來對抗普通法院。衡平法院通過不斷對力求近似原則適用條件中的關鍵因素進行解釋和修正來滿足個案正義。成文法在對待這一問題上時沒有隔斷判例法所總結的成果,而是結合社會實踐,根據(jù)具體情況,對"先例"不斷進行細化、解釋甚至擴充,形成了判例到立法的良性互動。從"最初慈善目的不可能實現(xiàn)"到"充分考量社會和經(jīng)濟環(huán)境"的修改,力求近似原則的適用正在經(jīng)歷一個從嚴到寬的發(fā)展過程。力求近似原則在英國幾百年的發(fā)展過程中形成了一系列具有可操作性的裁判規(guī)則與體系:首先需要判別一個慈善信托的慈善目的是"自始不能實現(xiàn)"還是"嗣后不能實現(xiàn)",在努力尋求捐贈者隱藏在背后的真正慈善目時,法院又創(chuàng)制了"通常的慈善意圖"這一概念。力求近似原則在慈善委員會的適用一方面須"遵循先例",尊重英國衡平法院作出的判例和成文立法規(guī)則;另一方面,對偏技術性的"方案"的制定使得它從職能上享有了與法院或法官相類似的職權和自由裁量權,其準司法性不容置疑。與此同時,也促使英國慈善監(jiān)管形成了以專門監(jiān)管機構——慈善委員會為核心、以高等法院、皇家檢察總長、地方政府、遺囑事務署為特色的目標監(jiān)管體系。力求近似原則隨著英國慈善信托在英美法系和大陸法系的逐步認可而得到發(fā)展。受限于各國的具體國情,這一原則在各個國家的發(fā)展又有所不同。相較于英國,英美法系對力求近似原則持開放包容態(tài)度,大陸法系對力求近似原則則保守與曲折得多。一方面大陸法系一般采用債權保護的方式定義信托與英美法系承認信托雙重所有權極為不同。另一方面,力求近似原則的高度靈活性和賦予法院的自由裁量權與大陸法系注重成文法和限縮自由裁量的特性相違背,這使得大陸法系大多沒有在成文立法中直接規(guī)定"力求近似原則"而是間接承認法院有類似權力。相較于國外,中國公益法缺少對"力求近似原則"的直接清晰表述、對相關適用條件的規(guī)定還相當不成熟、也未建立好相關的配套制度等嚴重制約了這一原則在我國的適用。我國應該盡早在立法中規(guī)定和完善屬于自己的"力求近似原則"。
[Abstract]:Seeking approximation principle is the most flexible and important institutional arrangement in the field of British charitable trust. This principle is to solve the charitable trust can not be achieved according to the purpose of the donor, the judge with the help of limited discretion to ensure the most similar to the donor's charitable purpose to make the charitable trust to survive the mechanism. The principle of approximation achieves a dynamic balance between "charitable purpose" and "public interest" in the special elements of British charitable trust, and realizes the best matching of public rights in private rights and private interests. The origins of seeking approximation are closely related to charitable trusts formed by religious communities receiving land donations from religious communities. With religious reform and the decline of the church, the royal family relegated to charitable trusts and jurisdiction seeking to approximate the principle, which was subsequently equalized against the ordinary courts. The Court constantly interprets and modifies the key factors in the application of the principle of approximation to satisfy the case justice. In dealing with this issue, statutory law does not separate the results summarized by the case law, but combines social practice, according to the specific situation, "precedent" is constantly refined, interpreted or even expanded, forming a positive interaction between the case law and the legislation. From the modification of "the original charitable purpose is impossible to be realized" to "fully considering the social and economic environment", the application of seeking to approximate principle is going through a strict to wide development process. The principle of seeking approximation has formed a series of operational adjudication rules and systems in the development of Britain for hundreds of years: first of all, it is necessary to judge whether the charitable purpose of a charitable trust "cannot be realized from the beginning" or "cannot be realized later". In an effort to find true philanthropy hidden behind donors, the court created the concept of "normal charitable intent." On the one hand, the application of the principle of approximation in charitable committees must "follow the precedent" and respect the precedents and written legislative rules made by the British Equalization Court; On the other hand, the formulation of the partial technical "scheme" makes it enjoy the same power and discretion as the court or judge, and its quasi-judicial nature is beyond doubt. At the same time, the British charity supervision has formed the target supervision system with the special supervision organization-the charity committee as the core, the high court, the royal prosecutor general, the local government, the will office as the target supervision system. The principle of approximation was developed with the gradual recognition of British Charitable Trust in Anglo-American and Continental legal systems. Limited by the specific conditions of each country, the development of this principle varies from country to country. Compared with the United Kingdom, the common law system is open and tolerant to strive for the principle of approximation, while the civil law system is much more conservative and tortuous to strive for the principle of approximation. On the one hand, the continental law system generally defines trust by the way of creditor's rights protection and the common law system recognizes the dual ownership of trust. On the other hand, the pursuit of a high degree of flexibility in the principle of approximation and the discretion conferred on the Court are contrary to the emphasis placed on statutory law and the character of limited discretion in the civil law system, As a result, most civil law systems do not directly stipulate "seeking to approximate principle" in the written legislation, but indirectly recognize that the court has similar powers. Compared with foreign countries, China's public welfare law lacks the direct and clear expression of "striving to approximate principle", the provisions on relevant applicable conditions are still quite immature, and the relevant supporting system has not been established, which seriously restricts the application of this principle in our country. Our country should stipulate and perfect "strive for approximation principle" in legislation as soon as possible.
【學位授予單位】：武漢大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D956.1;DD912.1
本文編號：2390737
[Abstract]:Seeking approximation principle is the most flexible and important institutional arrangement in the field of British charitable trust. This principle is to solve the charitable trust can not be achieved according to the purpose of the donor, the judge with the help of limited discretion to ensure the most similar to the donor's charitable purpose to make the charitable trust to survive the mechanism. The principle of approximation achieves a dynamic balance between "charitable purpose" and "public interest" in the special elements of British charitable trust, and realizes the best matching of public rights in private rights and private interests. The origins of seeking approximation are closely related to charitable trusts formed by religious communities receiving land donations from religious communities. With religious reform and the decline of the church, the royal family relegated to charitable trusts and jurisdiction seeking to approximate the principle, which was subsequently equalized against the ordinary courts. The Court constantly interprets and modifies the key factors in the application of the principle of approximation to satisfy the case justice. In dealing with this issue, statutory law does not separate the results summarized by the case law, but combines social practice, according to the specific situation, "precedent" is constantly refined, interpreted or even expanded, forming a positive interaction between the case law and the legislation. From the modification of "the original charitable purpose is impossible to be realized" to "fully considering the social and economic environment", the application of seeking to approximate principle is going through a strict to wide development process. The principle of seeking approximation has formed a series of operational adjudication rules and systems in the development of Britain for hundreds of years: first of all, it is necessary to judge whether the charitable purpose of a charitable trust "cannot be realized from the beginning" or "cannot be realized later". In an effort to find true philanthropy hidden behind donors, the court created the concept of "normal charitable intent." On the one hand, the application of the principle of approximation in charitable committees must "follow the precedent" and respect the precedents and written legislative rules made by the British Equalization Court; On the other hand, the formulation of the partial technical "scheme" makes it enjoy the same power and discretion as the court or judge, and its quasi-judicial nature is beyond doubt. At the same time, the British charity supervision has formed the target supervision system with the special supervision organization-the charity committee as the core, the high court, the royal prosecutor general, the local government, the will office as the target supervision system. The principle of approximation was developed with the gradual recognition of British Charitable Trust in Anglo-American and Continental legal systems. Limited by the specific conditions of each country, the development of this principle varies from country to country. Compared with the United Kingdom, the common law system is open and tolerant to strive for the principle of approximation, while the civil law system is much more conservative and tortuous to strive for the principle of approximation. On the one hand, the continental law system generally defines trust by the way of creditor's rights protection and the common law system recognizes the dual ownership of trust. On the other hand, the pursuit of a high degree of flexibility in the principle of approximation and the discretion conferred on the Court are contrary to the emphasis placed on statutory law and the character of limited discretion in the civil law system, As a result, most civil law systems do not directly stipulate "seeking to approximate principle" in the written legislation, but indirectly recognize that the court has similar powers. Compared with foreign countries, China's public welfare law lacks the direct and clear expression of "striving to approximate principle", the provisions on relevant applicable conditions are still quite immature, and the relevant supporting system has not been established, which seriously restricts the application of this principle in our country. Our country should stipulate and perfect "strive for approximation principle" in legislation as soon as possible.
【學位授予單位】：武漢大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D956.1;DD912.1
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