Groups Registration Regulations modify certain legal issues the thinking
Date :2009-05-26 Source: the Internet
famous French thinker Alexis de Tocqueville pointed out sharply: Freedom of association is second only to their own activities the freedom of the most natural freedom. [1] the freedom of association in the worldwide right to become a constitutional recognition of national legislation. is no exception, the country’s fundamental law of the mm Constitution explicitly provides for freedom of association is a citizen one of the fundamental rights of social groups legislation is to be fixed and implemented ways to freedom of association concept through legislation. on the legal level is still a lack of basic laws on associations, but the level of administrative regulations and relevant regulations of the current economic development and the national association of enhanced awareness, some provisions of the Ordinance has been unable to adjust the reality of the situation need legislators to respond to. This article will discuss several issues of concern in the amendments to the legislation process, whatever the discussion, in order to benefit of legislation, unincorporated associations (a) the legality of unincorporated associations unincorporated community refers to societies that do not have legal status in 1989, the corresponding provisions of the Ordinance 14 provides that: issued the registration certificate of social groups. societies exist, and without their legitimacy and status to demonstrate whether they have legal personality by the organization registration and approval of the department in charge of the registered society may, depending on whether they meet the legal conditions [4] According to the 1989 Ordinance, whether corporate qualifications, social groups, a year passed the annual examination in order to maintain its legal status, the administration of government departments, social organizations not because of whether the legal personality different. In addition, in accordance with the relevant provisions, unincorporated community groups can not be to register directly for the legal community groups, you must first cancel the registration of legal person, to re-apply for a corporate type of Registration of Social Organizations. [5] However in 1998 a new department in charge of registration of the possibility, although the Ordinance does not explicitly illegal societies belonging to an illegal organization, but promulgated by the Ministry of Civil Affairs in April 10, 2000 to ban illegal Interim Measures of the civil society organizations provisions for the illegal non-governmental organizations, social organizations or private non-enterprise units, name of activity, ,],[including the selection of a form of freedom of the unincorporated community. Secondly, is not conducive to the registration of the management of the department in charge of a large number of existing form of unincorporated associations, can not be registered to be excluded from the sight of the Government in fact the government some interest in the organization of the private sector Folk Fair, temple, book clubs, salons, forums, and grass-roots grass-roots organizations have adopted a laissez-faire attitude, often optimistic eye, close one eye. Furthermore, these organizations is not conducive to healthy development of the instability of the legal status has been suspended in these unincorporated associations head the sword of Damocles, the unincorporated community development activities to generate short-term behavior. social some do not stability factors, these illegal people is likely to be banned, and the persons may be punished, whether the theory of community practice, there is no dispute on the recognition of the legality of the unincorporated community. question is: how to clear their legal status? its what kind of management? respectively described below. (b) an unincorporated community in the legal status of: never admit that their main qualifications to the recognition of certain natural and legal persons of the main qualifications in the law with two categories of legal subjects of separate legal personality. legal subject qualification means that you can own name independent enjoyment of rights and obligations. unincorporated community organization is different from the natural person does not have an independent personality, do not to legal persons. on the legal status of the unincorporated community similar to the individual partner. unincorporated associations can have their own names, engage in activities in their own name; can set up their own account; within its members the name of the protocol agreement matters, including the principle of its activities, the person in charge of the rules of procedure, but it should be noted that the unincorporated community is not the property of independence of its members, and therefore can not be independently responsible for, but this is fully applicable to the legislation of the partnership rules The idea also caused difficulties, national legislation gradually given to the unincorporated communities to the main qualification. For example, the German civil law, no legal capacity of societies (unincorporated community called legal capacity Societies in Germany and France) in principle applicable provisions on partnership, which means: First, no legal capacity of societies, can not become the main body of the property, the property of societies belonging to all members of the Total. Second, the associations without legal capacity, can not become a debtor in his own name. Furthermore, as partner does not have the independent capacity of civil rights, partnership debt is the debt of the partner, partner of the debts of the partnership shall bear unlimited joint and several liability quicken for mac, this rule also applies to the legal capacity communities. In addition, a third party on behalf of this community as the legal act, the perpetrator bears personal responsibility, if the perpetrator several people, all actors jointly and severally liable. German legislators are taking this legislative policy designed to encourage the societies through the registration of Societies register go obtain legal capacity. on the official review of all such societies for the purpose of political, social, political and religious. [7] However, no legal capacity of a member of the community and implementation of community affairs of societies debt with unlimited liability, violation of the original intention of the community members to join the community if the members really unlimited liability societies debt, then it is to be set up without legal capacity of communities to absorb new members an insurmountable obstacle. the possibility of judicial decisions and doctrine to find all kinds of will be the responsibility of the members of societies, limited in the Societies property within the judicial decisions has been widely acknowledged, partnership law in conflict with the legal capacity of community structure in the form, has been replaced in addition to those is the capacity for rights conditions, the judicial decisions on the analogy applies to the German Civil Code provisions on legal capacity of societies. [8] Another example is the United States, the original, according to the American common law relevant provisions, a non-profit unincorporated associations, not a separate legal entity it is just a collection of individual members in many ways, it is business partners with common characteristics such laws and rules also caused problems: first, because they do not admit non- subject qualification of the legal community, lead to other people (including natural and legal persons) to gift the property of the unincorporated community becomes invalid. [9] In order to compensate for this unreasonable result, some courts have this gift behavior interpreted as the non- granted to the executives of the legal community after the grant by the competent land held on behalf of community members to manage. Subsequently, some state legislatures to provide a more thorough solution that allows non-profit legal person in such circumstances Societies as a separate legal entity. Second, the unincorporated community of standing to sue suffered questioned due to unincorporated associations is not a separate legal entity, filed by the unincorporated community, or the proceedings against unincorporated associations, it each member must participate in the proceedings as a plaintiff or defendant. can be applied to a joint action to solve this problem, but some state legislatures Litigation Qualification of the legal community. Furthermore, not an independent body of law, unincorporated associations can not be infringement, breach of contract and other illegal acts on behalf of the unincorporated community responsibility. the other hand, an unincorporated non-profit societies the members should take responsibility, in practice, the Court once again draws on the concept of partnership law that members of the unincorporated community each other agent, an agent similar to each other with a partner as each other’s agent, unincorporated associations members have to bear legal responsibility. later in the jurisprudence, the Court believes that the large membership of unincorporated nonprofit associations, some members of the decision-making process there is no full control over or right to participate, so they recognized as other members of the The agent is unreasonable and unjust. then related to the legislature to take measures over the past decade many states enacted laws eliminating the part of eligible unincorporated community managers, directors, members and volunteers simple negligence In addition, a problem and liability for the judgment coercive power of the members of unincorporated associations, unincorporated associations and property. If only some members of the unincorporated community to bear tort or contractual liability, then, in the division responsible for members and members of the former no responsibility for the judgment of the unincorporated community of property can not be executed because the property is by all members of all some of the members have no responsibility or judgment can not be for the court re-use of create a practical solution to the rules of the debtor a separate legal entity, as a legal entity that is due to the development of the judicial practice and legislation, the Uniform unincorporated non-profit Societies Act (UUNAA) [10] in the three basic and important aspects of reform of the common law : the acquisition, possession and transfer of property (especially real estate) permissions; as independent legal subjects permission to sue and be sued; head and members of the contractual liability and tort liability. [11] intended by its provisions, unincorporated non-profit societies become a separate legal entity under certain conditions. [12] Of course, this is not to say, an unincorporated non-profit societies in any case has a separate legal entity qualifications. legislative proposals: ’s the main two categories and legal persons, including citizens of the chapter also includes the individual businesses, rural contracting business households and individuals to partner, an associate of the partnership between legal persons on the legal chapter. type after, also promulgated the Societies Registration carry out business activities, the establishment of the enterprise legal person or unincorporated business organizations, unincorporated community groups can not engage in business activities is not enough to only those provisions, which requires legislation, especially the Civil Code law of unincorporated associations status and basic rights and obligations to make clear that I should first make clear the legal status of the unincorporated community, the presence of its legitimacy. this point before, have been described, not repeat them in the area of civil law should be given some of the main qualifications These qualifications include: first, unincorporated associations the right to grant limited legal capacity. unincorporated community property issues. unincorporated associations can have their own property and the account can accept others donation. unincorporated associations standing to sue in accordance with the provisions of Article 49 of the current organization judicial interpretation, the Supreme Court has explicitly believe that unregistered social groups can not be used as a litigant, only to identity to participate in the proceedings. Fourth, unincorporated associations legal responsibility should first foreign unincorporated community of property responsibility. If you are still not sufficient to repay the community members supplementary liability Fifth clear unincorporated associations can not be have the qualifications. Perhaps someone will point out: such policy choices, resulting in a large number of societies do not want to obtain legal personality? [15] which requires national non-profit societies have legal status to certain preferential policies to be interference. cents No doubt, do not have the legal personality to unincorporated associations can not enjoy the country’s tax policy and other preferential treatment. (c) an unincorporated community management model. unincorporated associations need to register? from the perspective of freedom of association, registration should the conditions of non-corporate bodies established in national legislation so provides. For example, in Germany, the establishment of associations of non-legal capacity required to register the establishment of no legal capacity of societies requires only an informal form of the establishment of behavior and developed by the establishment of the charter. Therefore, the registration process to obtain legal personality of the way in Germany, rather than a necessary condition for formation of societies in the United States, common law courts originally borrowed the concept of partnership, and that the non-profit unincorporated community members of the society is the cause of tenant, such as partner is co-owner of the partnership cause, the personal responsibility of societies career. the establishment of the partnership need not be registered. When two or more persons for the purpose of profit as a cause of the co-owner, general partner (the following are referred to as So, this joint is a partner. In this sense, partnership is engaged in the cause of the supplementary form. unincorporated nonprofit associations, and partnerships required to register was established. The author believes that the registration should not conditions established by the unincorporated community, in particular, should not directly have not been registered society classified as qualification of civil subject, considered from the point of view of transaction security and social order, set up the necessary procedures to verify that such organizations have a certain degree of rationality. This relates to the second question, namely how to unincorporated associations to carry out the necessary management? record-keeping system: the proper way to resolve? If unincorporated community to be established without going through registration, then whether it will lead to these unincorporated associations displaced in the sight of the Government can not control its purpose and activities, danger and harm society and the public. ? these unincorporated community what the attitude of, not management? and how to manage? Although the U.S. does not require registration process, but its unified non-profit unincorporated associations law of unincorporated associations have identified the Standard: joint leasing, by Total lease (tenancy in common) or jointly, the total lease and not naturally set up non-profit societies. [18] Of course, this finding is an ex post verification methods, so some scholars have proposed for the unincorporated management of societies can take the idea of record-keeping system. [19] in many places such as , Shandong, Anhui, Xinjiang, some counties and cities in the practice have been some attempts to these institutional innovation on the one hand reflects the practical needs, on the other hand also shows that the system of innovation and there was no legal space. filing system is still not able to fundamentally solve the problem of unincorporated associations, but it does to some extent, eased the tension in the association between demand and too harsh to the current legal environment. If you allow the unincorporated community to obtain legal status in the legal filing system, although still not exceeded the scope of ? a few details need to be addressed: (1) the filing of the application of object from the current practice, try to look at, record-keeping system for the county level civil affairs departments of civil organization and management agencies, community non-governmental organizations, the Rural Professional Technology Association professional community and other economic cooperation and joint organization shall be applicable. I believe that, on the management level, county, municipality-level civil affairs departments of civil organization and management authorities to implement the filing system is more appropriate, take into account both the civil affairs departments at all levels the permissions division of labor, but also taking into account the unincorporated community convenience and economy of the record, of course, for some rural grass-roots level and in remote areas can be further authorized the filing of civil authority at the township level, but applicable to the scope of the object is too narrow legal personality, it might be extended to any do not want to, but trying to use the associations activities in the name of the unincorporated community (2) the record whether you need to set the conditions? this issue is directly related to the filing of unincorporated associations the existence of not clearly defined threshold Ordinance of 1998 clearly defined social groups should have legal status, while clear conditions for the establishment of social groups. [20] from the provisions of point of view really is not low, set the threshold in terms of the number of members, activities, capital requirements and other aspects of set to the establishment of social groups, barriers to legal principles, for the record just illegal human societies of the relevant circumstances in the registration authorities recorded in the register of behavior if after filing of the illegal human societies did not obtain certain qualifications, then so do not be set any conditions. Conversely, if the record unincorporated community has achieved a certain legal status, then set the necessary conditions are still reasonable here may wish to draw the legislative ideas of partnership for-profit field: For the general partner’s personal need to register for the establishment of a partnership enterprise, you need to have certain conditions. Therefore, the author believes that the partnership of a few people engaged in non-profit business, is allowed; To the name of the organization and forms of activities, they have to have certain conditions (3) whether continue to apply the outside, another major factor to be an obstacle to the formation of societies. unincorporated community outside of the many separated from the management system because they can not find the business unit in charge of registration of nowhere in the record-keeping system to continue to follow the system of dual control their plight is still difficult to solve. So for the record of the unincorporated community, try to cancel the dual management system. (4) prior review or after the record? This issue relates to the record is a prerequisite for the establishment of an unincorporated community. I think, for the record should not be a prerequisite for the establishment of unincorporated associations, but the legislation can be after the filing of the unincorporated community by granting legal status of unincorporated associations to encourage the filing or registration. Second, industry associations (a) Industry Association, the applicability of the Organizations Registration and Management Regulations characteristics of non-governmental, non-profit, industry representation, unlike the social organizations of the political thought and culture and sports entertainment, but also different from the theory of management research organization from the organizational form, industry associations also belong to the corporation aggregate is a collection of people’s social groups with political, academic legal person, with the more obvious features, mainly reflected in the following areas: First, the unique nature of the organizational form: the form of organization of the industry associations generally legal persons is appropriate. other social groups can exist in the unincorporated communities; Second, the members of uniqueness; Industry Association member units of the enterprises engaged in the same industry, members are generally legal persons or unincorporated organizations, natural persons can not become members of industry associations; other social organizations, natural persons can become a member; Industry Association’s purpose is generally to promote the common interests of industry, safeguard the legitimate rights and interests of members; Fourth, the functions of trade associations is a service member, industry self-governance has become the communication national a bridge between the industry., industry associations have a greater autonomous powers of the formation, registration, supervision and management aspects of the industry associations are applicable to the Registration of Social Organizations Ordinance, the Ordinance from the administrative organ of social groups standardized registration and management point of view. departure from the general universality of the law enacted legal documents, it is difficult to have anything targeted industry associations, industry associations, as the links between the Government and the enterprise economy, industry-social groups, and other political, academic social groups with essentially different, even some of its provisions do not meet the nature of the industry associations, hindering the healthy development of the industry associations, such as social organization may set up regional branches of the strict dual management system for the industry association, the dual management system can gradually fade out, build new trade association management system, namely: the reform of the industry associations competent authorities according to the industry owned by the provisions of the various government departments, clearly defined business department in charge of the industry association for the state Commerce Department or the local Bureau of Commerce; change prior review [21] approval system for post-supervision system; at the same time weakening the department in charge of the administrative control of the industry associations, transaction control over, and increase self-governance and regulation of the industry associations should allow industry associations to carry out the necessary moderate competition, not to rigidly abide by the so-called number of sponsors and members, and the number of enterprises and organizations in the industry accounted for a certain percentage of sales should account for a certain percentage of the sales in the same industry; sponsor should be the operators of continuous operation to reach a certain period of time in the industry, and more in-depth understanding of the industry, higher prestige in the industry to ensure that the ability to develop a realistic industry development plan, line regulation and industry standards; other aspects can be specified: must have a charter, a certain number of professionals, the necessary property or funds, and can guarantee a certain source of funding. building industry associations exit mechanism, through an annual inspection system, the evaluation system led to the loss of industry representative industry associations to exit, taking into account the trade associations has characteristics and promote the development of special needs, it might be from the social groups separate, specialized legislation. (b) if the legislative power of the industry associations and trade associations separate legislation, then by the central legislation or by the provinces, provinces, autonomous regions and municipalities directly under the Central Government to local laws and regulations in the form of legislation? our current special legislation on the industry associations messy, scattered, mainly reflected in the administrative regulations and rules, as well as the introduction of some provinces and cities on the management of the industry associations of local laws and regulations. Central relevant normative documents of government agencies including the State Economic and Trade Commission in 1997 on the program to select a number of cities in the pilot of the industry associations, and 1999 to speed up the cultivation and development of a number of views of the Association of Industrial and Commercial Sectors (Trial) standardize the management of the Association and nurture the development of work notice City to promote the Development of Trade Association, Shantou Municipal Industry Association Interim Measures, Foshan City, industry social group regulations and the Municipal Bureau of Commerce guidance on the promotion of the construction and development of the field of foreign trade industry associations within the city compatible level of development of the present imbalance, the situation is not balanced on the development of industry associations. the harmonization of legislation by the central legislature, it is inevitable in the industry representation on the issue difficult to establish uniform standards, it is better to pay with the provinces, autonomous regions and municipalities to provide, community charter questions (a) the associations constitution and laws of the relationship between several situations mm statute reading policy-makers need to strike a balance between community autonomy and its social responsibility, even though the law can societies make some regulation, but this regulation should be limited. these provisions may appear in the face of the mandatory rules, such as the highest decision making body of clear associations to determine the roles and functions of the associations managers, and establish operational procedures and other matters then the remaining issues to the Associations charter to the provisions under the premise to meet the requirements of mandatory provisions of law, the Articles of Association of Societies can be worked out in accordance with its purpose and form a relatively flexible rules to comply with the community. a law would be a these matters to retain the provisions, these matters can only be prescribed by law, areas rather than as stipulated in the constitution. even if the articles of association have different records, should also be subject to legal requirements such as the German Civil Code 25 regulations, have the right to a society organizations, in addition to the following provisions, the constitution of societies to be provided. 63, 2 of the Civil Code stipulates that must comply with the law and the community may not charter change. these can not be changed in the constitution the provisions is the provisions of its internal governance issues, the general minimum requirements will still societies charter. overview of national law will normally require the nonprofit corporation’s articles of association shall contain at least certain provisions known as the absolute provisions shall record the matters. [22] For example, must set out the purpose and basic management structure of a society; such as the composition of the supreme governing body (General Assembly or the Board) and must meet on a regular basis; such as the requirement in the charter appropriate to retain the supreme governing body to modify the Articles of Association, decisions and other groups to merge or terminate the right to organize any set of societies, legal restrictions, such as the prohibition of the distribution of profits, it should be declared in the charter. [23] absolutely should be the content of the items recorded in the articles of association analysis will be specifically addressed below, this is no longer repeat them. law certain matters as the scope of societies stipulated in the constitution, but under the charter provisions, does not affect the establishment of a society, but should apply to the relevant provisions of the law, called the relative record necessary matters such as Switzerland, and France 63, 1 of the Code provides that: the charter does not provide for the organization of societies and the relationship of society and its members, to apply the following provisions (here, the following provisions on members of the General Assembly, the Board of Directors, members eligible to requirements). after 4. any items recorded on the provisions of law related matters of the specific provisions or articles of association of the requirements should absolutely be recorded items, there is often a larger free space for the associations articles of association to AND RELATED GRAPHICS, INCLUDING ALL provisions such as South Africa, 1997-for-profit 12, paragraph 3, of the Organic Law of following Paragraph 2 specifies the non-profit organizations should definitely be recorded items, but also specific provisions of the Constitution of the internal affairs of handling non-commercial organizations of the Republic of section 10, paragraph 3, in addition to the absolute should be recorded as provided for in Paragraph 2 things, the charter may provide that other provisions of the law does not violate the provisions of the Constitution in violation of the provisions of applicable provisions of this Law. [24] Therefore, any items recorded should definitely matters prescribed by the Articles of Association of the Societies in addition to the items recorded, of course, these matters or does not violate the mandatory provisions of the law as a limit (two ) the contents of the articles of association necessary items recorded [25], the civil code generally will require charter should be recorded, but the rules generally relatively simple, according to the relevant provisions of the civil code, the Societies constitution need to recorded items generally include: [26]. legal the purpose. [27] The purpose of societies things off purpose and therefore falls to be recorded items; name. [28] German Civil Code also provides that the names of societies and at the same location or the name of the society registration in the same township distinction; internal organization, such as the number of directors, term of office, appointment and removal; a supervisor of the supervisors of the number for a term of appointment and dismissal; [29]. Associations convened by the conditions, procedures and resolutions to prove the methods; member’s contribution; of membership obtained and loss; [30] members of the company entrance and retirement community [31] 5. residence or office; made by the [32] 6. articles of association; [33] also have national provisions agency dissolution and property attributable to matters which are necessary to record matters, such as the Italian Civil Code section 16, but the special law, the provisions of the articles of association shall record the matters detailed. such as The charter should be recorded in 15 subjects turbotax for mac, including: name, purpose, purview, the internal management organizational structure and working mechanism, on the rules to convene and hold a meeting, make a resolution, the organization terminated by the Financial degree, Chapter. ..
