为特定受助人募捐剩余财产归属问题研究
发布时间：2018-11-19 16:28
【摘要】：我国正处于社会主义初级阶段,贫富差距的扩大和弱势群体的存在给社会稳定带来了潜在威胁,为特定受助人募捐作为社会保障制度的重要组成部分,在困难救济和促进科教文卫事业以及社会公共事业和福利事业的发展等方面发挥了积极的作用,在现实生活中被广泛应用,并以其灵活性、自发性和高效率等优势为特定困难群众解决实际困难,从而成为慈善事业的有益补充。但是由于我国缺少慈善领域的法律法规,从而使为特定受助人募捐缺乏有效的监管,导致近年来为特定受助人募捐活动中出现了很多不尽人意的情况,如募捐财物被侵吞、募集人受到质疑和责难、受助人得不到有效救助等问题,特别是出现多起募捐剩余财产纠纷,这些问题使得此类针对特定受助人募捐日渐低迷,影响到慈善事业的健康有序发展。目前司法实践中一般都借助公益事业捐赠法的相应规定和民法及合同法的一般原则规定来规范为特定受助人募捐活动,尽管起到了一定作用,但没有统一的适用标准导致案件结果差异很大,因此作为一个极具前瞻性、复杂性和价值性的课题,研究为特定受助人募捐具有重要的现实意义。 本文第一部分以司法实践中的三个为特定受助人募捐纠纷的典型案例为出发点,结合目前为特定受助人募捐活动开展过程的实际问题,对我国为特定受助人募捐存在的诸多问题进行分析,引出本文所要论述的针对特定对象的社会募捐并分析了为特定受助人募捐的法律特征,为接下来深入分析社会募捐的法律性质作铺垫。 第二部分对于为特定受助人募捐法律关系进行了系统分析。本部分将为特定受助人募捐与赠与、无因管理、代理、信托等相关理论进行比较分析,把理论和案例相结合,确定了为特定受助人募捐的法律性质,将其定性为附条件的第三人利益合同,并确定了为特定受助人募捐剩余财产归属标准。 第三部分,在上述问题解决的基础上,对当前为特定受助人募捐中存在的问题的提出了处理建议：一方面,在我国目前相关法律法规缺失的情况下,司法实务中如何裁判类似案件；另一方面,指出为更好地解决社会募捐过程中产生的纠纷,需要对社会募捐活动进行专门规范,建立社会募捐准入制度和完善社会募捐信息披露制度。
[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.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
本文编号：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.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
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