為特定受助人募捐剩余財產(chǎn)歸屬問題研究
發(fā)布時間：2018-11-19 16:28
【摘要】：我國正處于社會主義初級階段,貧富差距的擴大和弱勢群體的存在給社會穩(wěn)定帶來了潛在威脅,為特定受助人募捐作為社會保障制度的重要組成部分,在困難救濟和促進科教文衛(wèi)事業(yè)以及社會公共事業(yè)和福利事業(yè)的發(fā)展等方面發(fā)揮了積極的作用,在現(xiàn)實生活中被廣泛應用,并以其靈活性、自發(fā)性和高效率等優(yōu)勢為特定困難群眾解決實際困難,從而成為慈善事業(yè)的有益補充。但是由于我國缺少慈善領(lǐng)域的法律法規(guī),從而使為特定受助人募捐缺乏有效的監(jiān)管,導致近年來為特定受助人募捐活動中出現(xiàn)了很多不盡人意的情況,如募捐財物被侵吞、募集人受到質(zhì)疑和責難、受助人得不到有效救助等問題,特別是出現(xiàn)多起募捐剩余財產(chǎn)糾紛,這些問題使得此類針對特定受助人募捐日漸低迷,影響到慈善事業(yè)的健康有序發(fā)展。目前司法實踐中一般都借助公益事業(yè)捐贈法的相應規(guī)定和民法及合同法的一般原則規(guī)定來規(guī)范為特定受助人募捐活動,盡管起到了一定作用,但沒有統(tǒng)一的適用標準導致案件結(jié)果差異很大,因此作為一個極具前瞻性、復雜性和價值性的課題,研究為特定受助人募捐具有重要的現(xiàn)實意義。 本文第一部分以司法實踐中的三個為特定受助人募捐糾紛的典型案例為出發(fā)點,結(jié)合目前為特定受助人募捐活動開展過程的實際問題,對我國為特定受助人募捐存在的諸多問題進行分析,引出本文所要論述的針對特定對象的社會募捐并分析了為特定受助人募捐的法律特征,為接下來深入分析社會募捐的法律性質(zhì)作鋪墊。 第二部分對于為特定受助人募捐法律關(guān)系進行了系統(tǒng)分析。本部分將為特定受助人募捐與贈與、無因管理、代理、信托等相關(guān)理論進行比較分析,把理論和案例相結(jié)合,確定了為特定受助人募捐的法律性質(zhì),將其定性為附條件的第三人利益合同,并確定了為特定受助人募捐剩余財產(chǎn)歸屬標準。 第三部分,在上述問題解決的基礎(chǔ)上,對當前為特定受助人募捐中存在的問題的提出了處理建議：一方面,在我國目前相關(guān)法律法規(guī)缺失的情況下,司法實務中如何裁判類似案件；另一方面,指出為更好地解決社會募捐過程中產(chǎn)生的糾紛,需要對社會募捐活動進行專門規(guī)范,建立社會募捐準入制度和完善社會募捐信息披露制度。
[Abstract]:China is in the primary stage of socialism. The widening gap between the rich and the poor and the existence of the disadvantaged groups have brought a potential threat to social stability. Raising funds for specific recipients is an important part of the social security system. Having played an active role in the relief of difficulties and in promoting the development of science, education, culture and health, as well as social and public services and welfare services, which have been widely used in real life and have been used with flexibility, The advantages of spontaneity and high efficiency solve practical difficulties for the people with specific difficulties, thus becoming a beneficial supplement to charity. However, due to the lack of laws and regulations in the field of charity in our country, the lack of effective supervision over the collection of donations for specific recipients has led to a lot of unsatisfactory situations in the fund-raising activities for specific recipients in recent years, such as the embezzlement of donations. Such problems as the questioning and censure of the collectors and the lack of effective assistance to the recipients, especially the emergence of many disputes over the collection of surplus property, have led to a gradual downturn in the collection of donations for specific recipients. Affect the healthy and orderly development of charity. At present, in judicial practice, the corresponding provisions of the Law on donations for Public Welfare and the general principles of civil law and contract law are generally used to regulate fund-raising activities for specific recipients, although they have played a certain role. However, the lack of uniform applicable standards leads to great differences in the outcome of cases. Therefore, as a forward-looking, complex and valuable subject, it is of great practical significance to study fundraising for specific recipients. The first part of this paper starts with three typical cases of fund-raising disputes for specific recipients in judicial practice, combining with the practical problems in the process of raising donations for specific recipients. This paper analyzes the problems existing in the collection of donations for specific recipients in our country, leads to the social collection aimed at specific objects and analyzes the legal characteristics of collecting donations for specific recipients. For the next in-depth analysis of the legal nature of social fundraising to pave the way. The second part makes a systematic analysis on the legal relationship of fundraising for specific recipients. This part will make a comparative analysis of the relevant theories of raising and donating for specific recipients, management without cause, agency, trust and so on. Combining the theory with cases, we will determine the legal nature of fundraising for specific recipients. It is characterized as a conditional third party benefit contract, and the criteria for collecting surplus property for a specific recipient are determined. The third part, on the basis of solving the above problems, puts forward some suggestions to deal with the problems existing in the collection of donations for specific recipients: on the one hand, in the absence of relevant laws and regulations at present in our country, How to judge similar cases in judicial practice; On the other hand, it is pointed out that in order to better solve the disputes arising in the process of social fund-raising, it is necessary to regulate the social fund-raising activities, establish the admission system of social fund-raising and perfect the disclosure system of social fund-raising information.
【學位授予單位】：浙江大學
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D923
本文編號：2342830
[Abstract]:China is in the primary stage of socialism. The widening gap between the rich and the poor and the existence of the disadvantaged groups have brought a potential threat to social stability. Raising funds for specific recipients is an important part of the social security system. Having played an active role in the relief of difficulties and in promoting the development of science, education, culture and health, as well as social and public services and welfare services, which have been widely used in real life and have been used with flexibility, The advantages of spontaneity and high efficiency solve practical difficulties for the people with specific difficulties, thus becoming a beneficial supplement to charity. However, due to the lack of laws and regulations in the field of charity in our country, the lack of effective supervision over the collection of donations for specific recipients has led to a lot of unsatisfactory situations in the fund-raising activities for specific recipients in recent years, such as the embezzlement of donations. Such problems as the questioning and censure of the collectors and the lack of effective assistance to the recipients, especially the emergence of many disputes over the collection of surplus property, have led to a gradual downturn in the collection of donations for specific recipients. Affect the healthy and orderly development of charity. At present, in judicial practice, the corresponding provisions of the Law on donations for Public Welfare and the general principles of civil law and contract law are generally used to regulate fund-raising activities for specific recipients, although they have played a certain role. However, the lack of uniform applicable standards leads to great differences in the outcome of cases. Therefore, as a forward-looking, complex and valuable subject, it is of great practical significance to study fundraising for specific recipients. The first part of this paper starts with three typical cases of fund-raising disputes for specific recipients in judicial practice, combining with the practical problems in the process of raising donations for specific recipients. This paper analyzes the problems existing in the collection of donations for specific recipients in our country, leads to the social collection aimed at specific objects and analyzes the legal characteristics of collecting donations for specific recipients. For the next in-depth analysis of the legal nature of social fundraising to pave the way. The second part makes a systematic analysis on the legal relationship of fundraising for specific recipients. This part will make a comparative analysis of the relevant theories of raising and donating for specific recipients, management without cause, agency, trust and so on. Combining the theory with cases, we will determine the legal nature of fundraising for specific recipients. It is characterized as a conditional third party benefit contract, and the criteria for collecting surplus property for a specific recipient are determined. The third part, on the basis of solving the above problems, puts forward some suggestions to deal with the problems existing in the collection of donations for specific recipients: on the one hand, in the absence of relevant laws and regulations at present in our country, How to judge similar cases in judicial practice; On the other hand, it is pointed out that in order to better solve the disputes arising in the process of social fund-raising, it is necessary to regulate the social fund-raising activities, establish the admission system of social fund-raising and perfect the disclosure system of social fund-raising information.
【學位授予單位】：浙江大學
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D923
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