英国慈善信托力求近似原则初探
发布时间：2018-12-24 14:20
【摘要】：力求近似原则是英国慈善信托领域最为灵活和重要的制度安排。这一原则是解决慈善信托慈善目的不能按捐赠人目的实现时,法官借助有限的自由裁量权保证寻求与捐赠人最为相近的慈善目的使慈善信托得以存续的机制。力求近似原则在英国慈善信托特殊要件中的"慈善目的"和"公共利益"之间实现了一种动态平衡,实现了公权有限度介入私权、私益兼顾公益的最佳匹配。力求近似原则的起源与宗教社团接受教徒土地捐赠形成的慈善信托极为有关。随着宗教改革和教会的衰落,王室收归了慈善信托以及力求近似原则的管辖权,继后这一原则又被衡平司法承继用来对抗普通法院。衡平法院通过不断对力求近似原则适用条件中的关键因素进行解释和修正来满足个案正义。成文法在对待这一问题上时没有隔断判例法所总结的成果,而是结合社会实践,根据具体情况,对"先例"不断进行细化、解释甚至扩充,形成了判例到立法的良性互动。从"最初慈善目的不可能实现"到"充分考量社会和经济环境"的修改,力求近似原则的适用正在经历一个从严到宽的发展过程。力求近似原则在英国几百年的发展过程中形成了一系列具有可操作性的裁判规则与体系:首先需要判别一个慈善信托的慈善目的是"自始不能实现"还是"嗣后不能实现",在努力寻求捐赠者隐藏在背后的真正慈善目时,法院又创制了"通常的慈善意图"这一概念。力求近似原则在慈善委员会的适用一方面须"遵循先例",尊重英国衡平法院作出的判例和成文立法规则;另一方面,对偏技术性的"方案"的制定使得它从职能上享有了与法院或法官相类似的职权和自由裁量权,其准司法性不容置疑。与此同时,也促使英国慈善监管形成了以专门监管机构——慈善委员会为核心、以高等法院、皇家检察总长、地方政府、遗嘱事务署为特色的目标监管体系。力求近似原则随着英国慈善信托在英美法系和大陆法系的逐步认可而得到发展。受限于各国的具体国情,这一原则在各个国家的发展又有所不同。相较于英国,英美法系对力求近似原则持开放包容态度,大陆法系对力求近似原则则保守与曲折得多。一方面大陆法系一般采用债权保护的方式定义信托与英美法系承认信托双重所有权极为不同。另一方面,力求近似原则的高度灵活性和赋予法院的自由裁量权与大陆法系注重成文法和限缩自由裁量的特性相违背,这使得大陆法系大多没有在成文立法中直接规定"力求近似原则"而是间接承认法院有类似权力。相较于国外,中国公益法缺少对"力求近似原则"的直接清晰表述、对相关适用条件的规定还相当不成熟、也未建立好相关的配套制度等严重制约了这一原则在我国的适用。我国应该尽早在立法中规定和完善属于自己的"力求近似原则"。
[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.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D956.1;DD912.1
本文编号：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.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D956.1;DD912.1
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