【作者】 刘天舒；

【导师】 邹世允；

【作者基本信息】 东北财经大学 ， 经济法学， 2010， 硕士

【摘要】 2010年4月14日的玉树地震以及2008年5月12日的汶川地震让13亿同胞为之痛心,中国人赤忱的爱国之心和中华民族强大的民族凝聚力在那个时刻得到淋漓尽致彰显,全球华人众志成诚,每份爱心凝聚成源源不断的捐款捐物的善举。这种一方有难八方支援、同舟共济、同甘共苦的精神,受到世界的尊重同时也让每个国人感到无比骄傲和自豪。我们国家是个灾害较多的国家,但国人愿意慷慨解囊,所以近些年来慈善事业问题成为人们持续关注的热点,如何管理好这些源于人们慈善、仁爱之心募集而来的善款,物尽其用,善始善终是慈善捐赠者关心的问题,是慈善受赠者得到救助的保障,同时也是我国慈善事业公信力的有力鉴证。慈善事业是指众多的社会成员建立在志愿基础上所从事的一种无偿的、对不幸无助人群的救助行为。它通过合法的社会中介组织,以社会捐献的方式,按特定的需要,把可汇聚的财富集中起来,再通过合法途径,帮助无力自行摆脱危难的受助者。慈善事业的价值基础是人权理论和人道主义,是基于人道和同情去开展工作,它主要通过募捐、救济和志愿行为去帮助他人。慈善事业是我国社会稳定和经济发展的有利后盾,能从一个新的角度缓解经济转型带给国家和政府的压力,因此慈善事业在解决公平和效率的矛盾方面发挥独特的作用。目前我国慈善事业发展的比较落后,亟需解决的问题也很多。首先,慈善捐赠水平占国民收入总值的比重较低。其次,慈善公益机构发展刚起步,主体地位不明确,数量少而且动员社会资源的能力弱,多数尚没得到足够的社会公信力。再次,慈善观念落后,慈善普及率也很低。这些问题的出现与我国的现行慈善事业法律法规不健全有必然的关系,原本这些问题都是可以通过法律规定予以解决或制止的,但是我国有关慈善事业的法律规定却存在很多弊端,不能恰到好处的解决慈善事业出现的问题。我国慈善事业健康发展必须要有法律制度作保障,为慈善事业发展提供规范蓝本和管理制度。但是,目前我国慈善事业的相关法律、法规滞后并且相关理论研究非常欠缺。所以,把慈善事业问题与当前我国社会实际相结合进行法律制度完善和创新研究,是非常必要的新课题。本文主要从我国慈善事业法律制度完善这一角度为慈善事业发展提出一些建议,希望为我国慈善事业早日走上健康、成熟的发展道路尽绵薄之力。本文主要分为四部分对慈善事业法律制度完善进行论述：第一部分,慈善事业基本理论分析。首先,考证慈善词源及我国慈善事业发展的基本脉络,并在此基础上辨析慈善事业的定义。其次,具体分析发展我国慈善事业的基本法理依据。第三,划分慈善事业相关法律的部门法归属。第二部分,其他国家慈善法律保障评析。首先,介绍英国、美国、加拿大先进的慈善事业法律制度。其次,对这些国家相关的法律制度进行评析,并对以上国家法律制度进行归纳总结。第三部分,在归纳和总结完我国慈善事业状况的基础上,对我国慈善事业存在的问题进行分析,这样做的目的是为了找到我国慈善事业发展相对落后的症结,认清我国慈善事业亟需解决的问题,做到对症下药。第四部分,将针对我国慈善事业的弊端进行慈善立法理论分析同时提出具体的完善措施和立法设想。我国慈善事业发展相对比较落后的最主要原因是我国缺少完整的慈善事业法律理论研究和完善的慈善立法体系,本文的核心观点将会是研究我国慈善事业的法学理论体系和慈善立法。在综合分析我国慈善事业的基本状况和我国的综合国情基础之上,深入的探讨我国慈善事业法学理论和慈善立法。具体内容如下：法学理论研究的重点应该是我国慈善事业的含义、性质、调整对象、适用范围、部门归属、法律体系等问题；慈善立法研究的重点是具体的立法设想,包括建立独立的《慈善法》、建立慈善事业的专门机构慈善委员会、建立完善的慈善事业监管机构。如果我国能拥有一套健全的慈善事业法学理论和慈善法体系,我国慈善事业必然会更加飞速、蓬勃的发展。法律保障是形成一个透明、公开、拥有良好公信力的慈善事业的基础和前提,希望本文的研究能从法律的角度和视野去构建我国的慈善事业发展体制。更多还原

【Abstract】 The Yushu earthquake at April 14th, 2010 and the Wenchuan earthquake at May 12th,2008 made 1.3 billion people grieve. The sincere patriotism of Chinese people and the strong cohesiveness of China as a nation had been competely expressed at those moments. The strength of Chinese people all over the world have come together to form a steady flow of donation. Help comes from all eight points of the compass for the one place in need-this spirit of China has earned respect from the rest of the world, and made every Chinese people feel extremely proud at the same time. Lots of disasters happened in our country lately, yet our people are generous enough to donate their money to help people in need. As a result, the issue of charities has become a focus that people pay attention to in recent years. How to manage and make the best use of the donations that are from people’s kindness and benevolence, is the major question that donators concern about, the guarantee that donees will receive help, and also a powerful proof of the credit of charities in our country.Charities, conducted by a large number of social members, is a voluntarily social activity that aims to help unfortunate and helpless people for free. Based on special needs, it first converges available wealth in the way of social donation through legal social agencies. It then, in legitimate ways, aids people who are unable to get rid of difficult situations themselves. The core value of charity is based on theory of human rights and humanitarianism. It functions on the basis of humanism and sympathy. It helps people mainly in means of donation, remedy, and volunteer work. Charities works as "Safety Valve" and "Shock Absorber" for our social stability and economic development, thus it has its unique usefulness in solving controversial issues involving justice and efficiency.To date, the development of charities in our country is comparatively slow, and there are a lot of problems waiting to be solved. First of all, the percentage of charitable donation in GDP is relatively low. Second, the establishment of charitable organizations have just started, and there are only a few such organizations. The principal role of such organizations has been made clear, and the ability of mobilizing social recourses is low. Most of them have not gained enough social credit. Third, people’s conception of charities is fall behind, and the popularity rate of charities is low as well. All of those problems have something to do with the underdevelopment of the current laws of regulations of charities in our country. Those problems were supposed to be solved or prohibited by by laws. However, due to the many drawbacks that exist in current laws and regulations of charities in our country, it failed to deal with such problems. The system of law is needed to secure a healthy development of charities in our country, since it is able to provide the standard blueprint and regulatory system for such development. Whereas, the present laws and regulations of charities is fall behind and relevant theory studies is deficient. Therefore, integratting the issue of charities and the actual social environment in our country to complete the system of laws and innovate theory studies, is a necessary new subject. With a goal of completing the system of laws of charities in our country, this paper will provide some suggestions, hoping to assist the development of charities to progress to a healthy and mature direction.This paper aims to investigate and analyse how to consummate the legal system of charities in our country, and there are four major sections. The first section is analysis of basic theories of charities. It will first study the origin of the word "charity", provide a general review of the developmental history of charities in our country, and present a definition for the word. Secondly, it will examine the legal basis of charities in our country with great details. Thirdly, it will divide department law vest of relevant laws in charities. The second section is investigation of the legal protection for charities in some developed countries, including the United Kingdom, the United States, and Canada. It will first introduce the legal systems of charities in these countries, analyse some relevant legal systems, and finally generalize and summarize those legal systems. In the third section, in order to find out the reasons that have caused the relatively slow development of charities as well as identify the problems that are needed to be solved to complete charities in our country, this paper will analyse existing problems according to above summary and generalization for the current situation of charities of our country. Lastly, in the fourth section, based on the drawbacks of charities in our country, this paper will conduct an analysis of the theory of charity legislation, as well as present specific measures for consummation and assumption for legislation.The main reason that attributes to the underdevelopment of charities in our country is our lacking of integrated studies on legal theory of charities and legislative system of charities. Therefore, the central theme of this paper will be focused on studying the system of legal theory of charities as well as legislation of charities in our country. Based on a comprehensive analysis of the basic situation of charities and integrated conditions of our country, it will probe into the legal theory of charities and legislation of charities in depth. The study of legal theory should be concentrate on the meaning, character, object of adjustment, scope of applications, department law vest, system of law, etc., in regard of charities in our country. The focus of the study of charitable legislation lies in providing specific supposition for legislation, such as establishing independent "Law of Charities," building committee of charities, and founding regulatory authority of charities. If our country owns a complete set of legal theory of charities and system of charitable law, the development of charities will be greatly improved. Legal protection is the foundation and precondition for establishing a transparent, open, and credible charitable enterprise. Hopefully, the research in this paper will look at consummating the developmental system of charities in our country from the angle of law.更多还原