On the normative content of the term "third category civil law subject" in China
The article examines the legislative term "subject of civil law of the third category" from the point of view of its normative content. The Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code of the People's Republic of China) establishes the type of organization as an unincorporated organization using the term "subject of civil law of the third category", thus introducing it into practice. Based on the analysis of legal texts in which the term "subject of civil law of the third category" occurs, the authors found that the concepts of "unincorporated organization" and "other organizations" are mixed in Chinese legislation. After the publication of the Civil Code of the People's Republic of China, this confusion has not been eliminated, so some laws and regulations still do not comply with the Civil Code of the People's Republic of China in this regard. The content and scope of the concept of "other organizations" are unclear to a certain extent, which does not contribute to understanding the purpose of regulation, clarity of legislative language and accuracy of understanding legislative intent. By analyzing the content and scope of the concepts of "non-corporate organizations" and "other organizations", the authors of the article clarify the relationship between them by comparing the context of the use of these concepts and propose a definition of the concept of "subject of civil law of the third category" in order to further improve the law in order to fully implement the principle of unity of legislative regulation.
Keywords: the subject of civil law of the third category, term, legislative regulation, unincorporated organization.
Introduction
After the implementation of the Policy of Reform and Openness with the rapid development of the Chinese economy, the term "third category civil law subject" has constantly attracted the attention of legal experts in connection with its use in legislation. The terms describing the types of organizations as subjects of civil law that are not directly listed in the law have gone through three stages of development. At each of these stages, the following terms coexisted: "other business organizations", "other organizations", "other organizations and non-corporate organizations", and the structure of subjects of civil law was transformed from binary to ternary.
At the initial stage of the Reform and Openness Policy, the term "other business organizations" was usually used in legislation as a term with the meaning of "subject of civil law", mainly due to the entrepreneurial nature of these persons. For example, the 1979 Law "On Contractual (Cooperative) Joint Ventures of Chinese and Foreign Capital", the 1985 Law "On Foreign Economic Contracts", the 1986 Law "On Enterprises with Foreign Capital" and the 1988 Law "On Contractual (Cooperative) Joint Ventures of Chinese and Foreign Capital" and other laws use the term "other business organizations" as an indication of the status of a subject of civil law. In these normative legal acts, the content of the concept of "other organizations" is limited to the category of "business organizations" and has the meaning of "subject of civil law".
Currently, the scope of the concept of "other business organizations" includes both legal entities and non-corporate organizations. When formulating the "General Provisions of Civil Law", it was discussed whether a third category of subjects of civil law should be consolidated in addition to citizens (individuals) and legal entities, but as a result, the dual composition of subjects of civil law - citizens (individuals) and legal entities was consolidated. It should be noted that a broad interpretation of the norms of the chapter of the Civil Code of the People's Republic of China "General provisions of Civil Law" presupposes the existence of special subjects of civil law, such as: an individual entrepreneur, a contract farm in a village, a personal partnership and joint management within the framework of a dual system of subjects of law (citizens and legal entities). This leaves room for the introduction of the legal concept of "third category civil law subject" in China. During the period of reforming the market economy system, the "subject of civil law of the third category" is usually referred to in legislation by the term "other organizations".
With the deepening of the Policy of Reform and Openness, the socialist market economy developed rapidly. The rigid unified and closed economic model of the past was gradually destroyed and a multi-level economic structure was formed, the categories of civil law subjects involved in market transactions were increasingly diversified, non-corporate organizations were widely involved in various fields of activity <1>. In some legislative acts of civil law, the legal term "other organizations" begins to appear, approving the legislative status of a third category civil law subject <2>. The Administrative Procedure Code of 1989 was the first act that defined the legislative status of the concept of "other organizations". In 1990, the Law "On Copyright" also abandoned the binary subject structure of subjects of civil law, determining that an unincorporated organization is a third-category subject of civil law, enjoying copyright, in addition to citizens (individuals) and legal entities. The 1991 Code of Civil Procedure contrasted "other organizations" with citizens (individuals) and legal entities, and recognized such organizations as subjects of judicial proceedings. In 1992 , in art . 40 "Conclusions of the Supreme People's Court on a number of issues related to the application of the "Civil Procedure Code of the People's Republic of China" (hereinafter - Civil Procedure Opinions) clearly indicate that the meaning of the term "other organizations" refers to organizations established in accordance with the law, having a certain organizational structure and properties, but not being legal entities.
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<1> [Li Kaigo, Zhang Yumin]: [Chinese Civil Law"]. [Law Press], 2002 .
<2> [Chen Zhofeng]: [Analysis of the characteristics and origin of non-corporate organizations] // [Chongqing University of Radio and Television]. .
From the standpoint of procedural law, the status of "other organizations" as subjects of civil law is established. In 2015, in paragraph 52 of the Explanation of the Supreme People's Court on the Application of the Civil Procedure Code of the People's Republic of China (hereinafter referred to as the Civil Procedure Explanation), the provisions on the meaning and specific scope of the concept of "other organizations" were mainly supported. The Law of 1995 "On Surety" and the Law of 1999 "On Contracts" also contain rules on "other organizations". In 2017, the "General Part of Civil Law" changed the dual structure of subjects of civil law in the "General Provisions of Civil Law" and for the first time established the term "subject of civil law of the third category", calling it "non-corporate organizations". The Civil Code follows the "General Part of Civil Law" and uses the term "unincorporated organization" in relation to organizations that do not have the status of a legal entity (Chapter 4 of the "General Part"), and recognizes them as a subject of civil law of the third category along with individuals (Chapter 2) and legal entities (Chapter 3). Thus, a threefold structure of subjects of civil law in China is being introduced.
So far, terms such as "other organizations" and "non-corporate organizations" coexist in the legislation regarding the types of subjects of civil law. This raises some questions, for example: what is the relationship between "other organizations" and "non-corporate organizations"; what should the subject of civil law of the third category be called? These issues have caused some concern in theoretical and practical legal circles, therefore, by analyzing the content and characteristics of the terms "other organizations" and "non-corporate organizations" in this article, the authors try to identify the relationship of these terms based on the analysis of legal texts in order to help specialists understand and apply these concepts, as well as unambiguously determine the content of the concept of "subject civil law of the third category".
1. The content and application of the term "other organizations" in legal texts
Before the concept of "unincorporated organization" appeared in the "General Part of Civil Law" in 2017 as the third category of subjects of civil law, the term "other organizations" was often used in various substantive and procedural normative acts. If you use "other organizations" as a keyword to search for laws and regulations, you can find 76 laws, 84 administrative regulations and 58 judicial clarifications using it. In total, this term is used 469 times in departmental regulations, and 6,191 times in local regulations and rules <3>. As a rule, this applies to two situations.
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<3> The data on the application of legislation in this article was obtained as a result of a full-text search on May 15, 2022 in the database of Peking University for the keywords "other organizations". The data obtained at the level of laws, administrative legal norms and judicial clarifications were additionally analyzed based on the results of a system search to remove duplicate and irrelevant data. The data in terms of departmental and local regulations are only the results of a system search and have not been subjected to meaningful analysis.
In the first case, the term is used in parallel with the concepts of "citizen (individual)" and "legal entity", i.e. it is an indication of the subject of civil law of the third category. For example, Article 2 of the Law "On Charity" establishes that "this Law applies to charitable activities and activities related to charity carried out by individuals, legal entities and other organizations." Another example is art. 19 of the Law "On the Protection of the Position, Rights and Interests of Military Personnel", which states that "in the event that military personnel cause damage to the legitimate rights and interests of citizens, legal entities or other organizations as a result of their task, the State must compensate in accordance with the relevant provisions." "Other organizations" are here contrasted with legal entities and refer to organizations other than legal entities. Article 51 of the CPC of the People's Republic of China also contains the term "other organizations" among the list of persons who act as parties to civil proceedings as an independent entity: "citizens, legal entities and other organizations may be parties to civil proceedings." The concept of "other organizations" is fixed in paragraph 52 of the Civil Procedural Clarification, this term refers to organizations established in accordance with the procedure established by law, having certain organizational structures and properties, but not being legal entities. This paragraph also lists seven specific types of "other organizations". It is clear from the provisions of the CPC of the People's Republic of China that "other organizations" must meet the following conditions: the organization must be established in accordance with the procedure and conditions provided for by law and recognized by it; have a certain organizational structure that allows for the normal operation of the organization, for example, its own name, office premises, responsible person, functional units, etc.; have certain property that can be managed independently and that is commensurate with the scale of business and economic activity; do not have legal personality and do not bear independent responsibility <4>. Based on these criteria, it can be noted that "other organizations" represent a new independent category of subjects of civil law, which can be conditionally divided into two subcategories: one of them includes branches of a legal entity, the other unites independent organizations such as an individual enterprise, partnership, etc. The Supreme People's Court does not provide clear criteria for which organizations should be included in "other organizations" and uses the phrase "other organizations that meet the conditions provided for in this article". However, from the above criteria, it is not possible to accurately determine the content and meaning of the concept of "other organizations" as subjects of civil law.
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<4> [Du Wanhua]: [Practical recommendations on judicial interpretation of civil cases of the Supreme People's Court], .
In the second case, the term is used in parallel with the enumeration of some specific types of organizations. In the normative legal text, "other organizations" are used not in parallel with individuals and legal entities as subjects of legal relations, but simultaneously with specific organizations in order to emphasize that "other organizations" do not refer to other organizations listed in a certain case. For example, art. 61 of the Law "On Charity" distinguishes between charities and other organizations: "The charitable services referred to in this Law relate to voluntary gratuitous services and other non-profit services provided by charitable organizations and other organizations and individuals to society or others for charitable purposes." The term "other organizations" here is applied specifically to non-charitable organizations in order to distinguish them. As another example, we can consider paragraph 3 of art. 140 of the Law "On Food Safety", where the concepts of "other organizations", "social groups" and "individuals" are listed as independent entities and it is provided that if they carry out false advertising and cause harm to someone, they are jointly and severally liable with the manufacturer and operator. "Other organizations" should also be understood here as organizations that do not correspond to the category of a legal entity and public groups. Article 2 of the Law "On Archives" provides that "other organizations" means organizations or groups other than "archives and bodies, groups, enterprises and budgetary institutions." It can be seen that the term "other organizations" has different content and meaning depending on the context of the normative act. However, this concept is most often used in legal texts and is understood as organizations that do not correspond to the category of a legal entity.
In addition, in the process of analyzing the text, it turns out that the term "other organizations" in the same law may have different contents. It refers to organizations that are different from legal entities or from a specific type of legal entity, but are also legal entities, for example, in the Law "On Charity". The uncertainty of the content of the concept leads to difficulties in legislative, judicial and law enforcement activities.
2. Theoretical analysis and definition of the concept of "non-corporate organizations"
With the development of the economy, subjects of civil law became more and more diversified, many organizations appeared that do not have independent legal personality, such as individual enterprises, partnerships, professional services organizations without legal personality, etc. They are still developing dynamically and occupy an important place in the active development of the market, but in practice there are many difficulties. On the one hand, these organizations are registered, have received licenses to conduct business in accordance with the procedure established by law and the right to engage in entrepreneurship. On the other hand, they are not recognized as the subject of the transaction, which has many adverse consequences for economic activity. In reality, organizations involved in civil law life are not limited to legal entities provided for by law, but also include those organizations or groups that are not considered to have legal personality, but their rights and interests must also be protected. The Civil Code of the People's Republic of China has incorporated the results of research on civil legislation, civil procedure and the theory of civil law over the past 40 years of conducting a Policy of reform and openness in China. In addition to individuals and legal entities, the legislation provided for non-corporate organizations, which enriches the categories of subjects of civil law and is an important innovation in the system of subjects of civil law in China <5>. There are seven articles in Chapter 4 of the PRC Civil Code that define the system of non-corporate organizations. According to paragraph 2 of art. 102 of the Civil Code of the People's Republic of China, the so-called unincorporated organization means an organization that does not have the status of a legal entity, but by law has the right to engage in civil law activities on its behalf. There are various discussions in the legislative process regarding the classification of such organizations. Scientists have several classification options that can be conditionally divided into the following models: a subjective model in which the subject of civil law of the third category differs from an individual and a legal entity; the model of a legal entity, implying the inclusion of non-corporate organizations in the system of legal entities; the model of a sub-legal entity, which qualifies an unincorporated organization as a subject of judicial proceedings, but does not have full qualifications of a legal entity in substantive law; the model of special provisions identifies different categories of non-corporate organizations, the status of which is regulated by different special provisions. The first model of a third-category civil law subject has been legislated to regulate the situation of non-corporate organizations. Scientists believe that non-corporate organizations, such as partnerships, are different from legal entities. If such organizations are considered as legal entities or quasi-legal entities, the legal characteristics of economic organizations are easily ignored in both substantive and procedural law, and their legitimate rights and interests cannot be guaranteed. It is clear from the concept of "unincorporated organization" that its meaning is to give the status of a subject to an organization that is not a legal entity. The legislative consolidation of this type of organization corresponds to the inevitable trend of the transition of commodity producers from sole ownership to joint activity and reflects the real situation of participation of various types and forms of organizations in the economy and society. That is why the term "third category civil law entity" was added to the legislation, which is different from individuals and legal entities, and judicial practice gradually recognized the validity of an agreement concluded by an organization without forming a legal entity as a legal agreement.
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<5> See: [Huang Wei]: [Interpretation of the general part of the Civil Code of the People's Republic of China]. [Law Press], 2020.
An unincorporated organization has the following essential characteristics: it does not have the status of a legal entity; it can engage in civil activities on its own behalf; it is a public organization, professional service organizations are also unincorporated. Scientists have tried to explain the content and scope of the concept of "non-corporate organization" from different points of view. Professor Yang Lixin believes that non-corporate organizations have the following distinctive legal characteristics: first, they are public organizations other than legal entities; secondly, they have their own independent names; thirdly, they have their own specifics of civil activity; fourth, non-corporate organizations are independent subjects of civil law <6>. Professor Zhang Xinbao believes that understanding the essence of an unincorporated organization should be analyzed from the point of view of not only laws and regulations, but also the basic theory of the system of subjects of civil law. The term "unincorporated organization" is not clearly defined in the legislation. When considering an organization comprehensively as an unincorporated one, the following five requirements must be met: the presence of a special law defining a specific legal category of the organization; the absence of the status of a legal entity; registration in accordance with the procedure established by law; the presence of a certain degree of organization; independence in the exercise of subjective rights and duties <7>. Professor Guo Rui believes that an unincorporated organization is a public organization other than an individual, it does not have the status of a legal entity, has the appropriate civil legal capacity and legal capacity. Although the doctrine considers the meaning of the term from different points of view, in general it corresponds to the provisions of the Civil Code in relation to an unincorporated organization. According to paragraph 2 of art. 102 of the Civil Code of the People's Republic of China, non-corporate organizations include individual entrepreneurs, partnerships, professional service organizations that are not legal entities, etc. The list of non-corporate organizations in the legislation is open.
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<6> See: [Yang Lixin]: [Status and rules of non-corporate organizations in accordance with the General Part of Civil Law], [Qiushi]. 2017 .
<7> See: [Zhang Xinbao, Wang Yumiao]: [On the main issues of non-corporate organizations in accordance with the General Part of Civil Law], [Comparative Legal Research]. 2018 .
Of course, the problem of unincorporated organizations in China cannot be called unique, since the legislation of foreign countries also has relevant provisions, such as norms applicable to "incapacitated associations" in Germany, "unincorporated associations" in Italy; "non-corporate associations or foundations" in Japan (this includes organizations whose purpose is to consolidate property); The "non-legal society" in Taiwan, etc. But in each country, these concepts have different contents and are used in practice in different ways. Based on the generalization of the existing experience of legislative and judicial practice, the Civil Code of the People's Republic of China allocates non-corporate organizations into a single chapter, recognizes their civil subject status, enriches categories of subjects of civil law and promotes legal regulation of their activities, helps resolve the contradiction between civil substantive law and civil procedural law, as well as stimulating the viability of the market, reflecting the practical needs of Reform Policy and openness in China.
When searching for the keyword "non-corporate organization", it was found that there are 12 laws, 3 administrative regulations and 31 judicial clarifications using this term in existing legal documents; it appears 27 times in departmental regulations; 335 times in local regulations and rules <8>. This category of legal entities is mentioned along with individuals or legal entities and thus acquires the status of a third category civil law entity (as shown in the table). In the current legal texts of China, an unincorporated organization is a subject of civil law equivalent to a legal entity.
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<8> The data on the use of legislation in this article was obtained as a result of a full-text search on May 15, 2022 in the Peking University database for the keywords "non-corporate organizations". Additionally, data was examined at the level of laws, administrative regulations and judicial clarifications based on the results of a system search to remove duplicate and irrelevant data. Data on the use of this concept in departmental regulations, local regulations are only the results of a system search and have not been subjected to meaningful analysis.
The mention of non-corporate organizations in the legislation
N n/a Title Article Specific expression
1 The Law on Futures and Derivatives of the People's Republic of China (2022). 49, 52 Individuals, legal entities and non-corporate organizations have not yet entered into force
2 The Law on Scientific and Technological Progress of the People's Republic of China (2021) 49, 91 Individuals, legal entities and non-corporate organizations
3 Law on the Promotion of Family Education of the People's Republic of China (2021) 12, 36 Individuals, legal entities and non-corporate organizations
4 Hainan Free Trade Ports Act of the People's Republic of China (2021) 22, 23 Individuals, Legal entities and non-corporate organizations
5 Law on the Protection of the Yangtze River of the People's Republic of China (2021) 79 Citizens, legal entities and non-corporate organizations
6 Copyright Law of the People's Republic of China (2020) 2, 12, 18, 21, 23, 24 Citizens, legal entities and non-corporate organizations
7 Export Control Law of the People's Republic of China (2020) 2 Citizens, legal entities and non-corporate organizations
8 Law of the People's Republic of China on Ensuring National Security in the Hong Kong Special Administrative Region of the People's Republic of China (2020) 31, 37 Companies, groups and other legal entities or non-corporate organizations
9 The Civil Code of the People's Republic of China (2020) 2, 102 - 108, 110, 134, 170, 173, 174, 504, 683, 847, 1013, 1016 Individuals, legal entities and non-corporate organizations, legal entities or non-corporate organizations
10 Securities Law of the People's Republic of China (2019) 53 Individuals, Legal entities and non-corporate organizations
Source: author's development.
3. Application of the concepts of "non-corporate organizations" and "other organizations"
Although the status of non-corporate organizations is clarified in the legislation, there is no clear regulation of the relationship between the concepts of "non-corporate organizations" and "other organizations". Due to the lack of clear instructions in laws and by-laws, after the entry into force of the Civil Code of the People's Republic of China, the phenomenon of cross-use of the concepts of "non-corporate organizations" and "other organizations" in relation to the term "third category civil law entity" persists. The legal acts adopted after the promulgation of the Civil Code of the People's Republic of China - 8 laws, 2 administrative regulations and 3 judicial clarifications - use the term "other organizations" along with citizens (individuals) and legal entities. The term "other organizations" is used in 105 departmental regulations. In total, 1,422 cases of using the term "other organizations" are found in local regulations and rules <9>. Using the example of the texts of local acts of charity of each province <10>, 16 local laws on charity and local government resolutions were identified. At the same time, 6 provinces (cities) used the term "non-corporate organizations", 10 - the term "other organizations". Of the six local laws on charity promulgated before and after the entry into force of the Civil Code of the People's Republic of China in 2021, four use the term "unincorporated organization", and the remaining two use "other organizations".
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<9> The data on the use of the term "other organizations" in departmental regulations and local regulations and rules in this article refer to May 15, 2022, when the term "other organizations" was used as a keyword when searching the Peking University database. A full-text search showed that this part of the data represents only the results of a system search, without further analysis. "Other organizations" are used in departmental regulations, such as art. 51 "Detailed rules for the implementation of the Regulations of the People's Republic of China on the Management of registration of market Entities" (published and put into effect on 03/01/2022), according to which legal entities and other organizations affected by false registrations can apply to the registration authority with an application for cancellation of registration. "Other organizations" are used in local regulations, such as art. 2 "Regulations on Population and Family Planning in Yunnan Province" (Amendment 2022), this provision applies to citizens, legal entities and other organizations in the administrative region of this province, as well as to those persons who are registered at their place of residence in this province, regardless of their actual residence.
<10> As a result of a web search, 16 local regulations and local government resolutions on charity issued by various provinces were identified, and a statistical analysis was performed on their basis.
There are different views among scientists on the relationship between these legislative terms. Some people think that the term "non-corporate organizations" is similar to the term "other organizations". Other scientists explain and analyze these concepts from different points of view. For example, Professor Yang Lixin believes that there is no significant difference between "non-corporate organizations" and "other organizations" <11>. Professor Liu Jingwei believes that "non-corporate organizations" are "other organizations." When they are listed next to legal entities, they are simply different terms with exactly the same content, i.e. "non-corporate organizations" are an alternative to "other organizations" <12>. Professor Tan Qiping says that from the point of view of hermeneutics, the term "non-corporate organizations" has the same content and the same scope as the term "other organizations". Using a logical interpretation, he points out that these terms have the same semantic relationships. In this there is continuity and consistency between new and old, general and special, substantive and procedural law <13>. The following statement is used in the legislative process: "In fact, non-corporate organizations are other organizations, and the use of the term "non-corporate organizations" is carried out in order to avoid randomness and popularize other concepts, which gives them the status of a normative term."
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<11> See: [Yang Lixin]. Decree. op.
<12> [Liu Jingwei]: [Other organizations" and issues of their subject status: from the point of view of the formulations of the General part of civil law] // [Legal system and social development]. 2016 .
<13> See: [Tan Qiping]: [The dilemma of relations between non-corporate organizations and other organizations and their solutions]. [Legal Research]. 2020 .
There is also an opinion that the content and scope of "non-corporate organizations" and "other organizations" do not coincide. For example, Professor Yan Renqun believes that the concept of "non-corporate organizations" can cover the concept of "other organizations", for other organizations there is only one criterion - to have certain property, while for non-corporate organizations this requirement is absent, and the definition of other organizations in the CPC of the People's Republic of China is more strict <14>. Professor Zhang Xinbao believes that from the point of view of the specific categories included in the concept of "other organizations" listed in Article 52 of the Civil Procedure Clarification, these two concepts do not coincide and cannot be used interchangeably <15>. Professor Zhang Mingqi believes that non-corporate organizations are defined as a third category subject of civil law in the General Principles of Civil Law in order to distinguish them from the concept of "other organizations" previously used in normative acts <16>. Scientists who hold the opinion that these categories of persons do not coincide with each other present three main arguments. They believe that, firstly, the two regulated objects are different, the rules on non-corporate organizations regulate the procedure for their qualification as subjects of civil law, and the use of the term "other organizations" refers only to the regulation of subjects of litigation; secondly, they have different contents; thirdly, there are differences in the types of these two organizations, for example, branches of other organizations are not included in the category of unincorporated organizations. The analysis of the relations between these points of view is also a necessary part of the regulation of the term "subject of civil law of the third category".
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<14> [Yan Renqun]: [Non-corporate organizations and the legal capacity of the parties], [Jiangsu Administrative Institute], 2018 .
<15> See: [Zhang Xinbao, Wang Yumiao]. Decree. op.
<16> See: [Zhang Mingqi]. [Formulation of the General Part of the Civil Law of the People's Republic of China]. [Chinese Jurisprudence]. 2017. .
From the previous analysis, it can be seen that according to the interpretation of the text, there are certain differences in the content and scope of the terms "non-corporate organizations" and "other organizations". From the point of view of content, the concept of "other organizations" is not fixed and unified, its content, provided for by different laws, is not coordinated and may have different meanings in different laws. The term "other organizations" has a broader scope and can be interpreted as including non-corporate organizations, but it does not coincide with it. Unlike "other organizations", an "unincorporated organization" is a strict civil law concept, the content and scope of which are clearly defined. There are differences between the legal provisions on non-corporate organizations and on other organizations in relation to property issues. The term "unincorporated organization" does not mention ownership issues, and the content of the concept of "other organizations" sets out the requirements for an organizational structure and property as criteria. However, there is an opinion that non-corporate organizations, as subjects of civil law, having the same status as individuals and legal entities, should have independent property, like other subjects of civil law. In addition, Article 104 of the Civil Code of the People's Republic of China uses the expression "property of non-corporate organizations", which indicates that non-corporate organizations can become a subject of civil law with property rights, and the presence of property is called as one of the qualifying features. However, this does not mean that independent ownership of property is a prerequisite for non-corporate organizations. Some non-corporate organizations may not have their own independent property, for example, a homeowners association. Thus, although the provisions on the property of non-corporate organizations and other organizations in the text differ, there is no contradiction between them.
In terms of the scope of these legal concepts, there are differences in relation to branches. Currently, branches of legal entities belong to specific types of other organizations in the Civil Procedural Explanation, and the category of an unincorporated organization does not imply the presence of branches of a legal entity, which leads to a difference in the scope of these two concepts. Regarding the branches of legal entities, the following opinions exist. Some scientists believe <17> that branches of legal entities are unincorporated organizations and have the status of subjects of civil law. Others believe that a branch of a legal entity should not be considered an unincorporated organization for a number of reasons. Firstly, a branch of a legal entity does not have independence from the main governing body, and when the activity of a legal entity is terminated, its branch must also be liquidated. For a partnership and other partners in an unincorporated organization, an individual entrepreneur and his investors, the termination of the activities of one of the parties will not lead to the termination of the activities of the other party. Secondly, the property of a branch of a legal entity cannot be separated as independent when dividing property, when it comes to separating the claims of creditors of members of the organization from the property of the organization, and its property is not independent <18>. Not only legal entities have branches, but also non-corporate organizations. The provisions of Article 74 of the Civil Code of the People's Republic of China on branches of legal entities <19> apply to branches of non-corporate organizations.
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<17> See: [Shen Deyoung]: [Understanding and application of the General Part of the Civil Law of the People's Republic of China (Part 2)]. [People's Court]. 2017 ; [Wang Liming]: [Detailed explanation of the General Part of the Civil Law of the People's Republic of China. Vol. 1], [Chinese Law Publishing House], 2017.
<18> See: [Zhang Xinbao, Wang Yumiao]. Decree. op. Professor Zhang notes: "The claims of creditors of members of the organization are separated from the property of the organization."
<19> See: [Huang Jianfen]: [Analysis of specific types of non-corporate organizations in the General part of civil law] // Times Law, 2019 .
Some scientists have also suggested <20> that it is impossible to generalize the provisions on the regulation of branches, depending on whether we are talking about a branch of a legal entity or an unincorporated organization.
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<20> See ibid.
Branches with strong dependence belong to legal entities and bear civil liability on behalf of legal entities. Branches with strong independence, group character and large size, such as bank branches in various provinces and cities, can operate as independent subjects of civil law. As for the branch of a legal entity, since a legal entity has the status of a subject of civil law, and a branch is an integral part of a legal entity, it is an independent organization without the status of a subject, its form is determined by a legal entity, and the subject of law is only a legal entity. Therefore, even if the legislation does not specify whether a branch is a subject of civil law, this does not affect its participation in the activities of a civilian and in judicial activities.
The general part of civil law provides that non-corporate organizations are a subject of civil law of the third category. The Civil Code of the People's Republic of China continues to follow this theory, singling out non-corporate organizations in the system of persons.
According to the theory of civil procedure law, the subject of procedural law must correspond to the subject of civil law. The discrepancy between them will be shared by subjects of civil law and subjects of civil proceedings <21>. By expanding the range of subjects of civil law, the Civil Code of the People's Republic of China leads to the coincidence of the concepts of a third category civil law subject in substantive law and procedural law, which contributes more to the harmonization and unification of the legal system, better protects the legitimate rights and interests of the parties.
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<21> See: [Zhang Weiping]: [Systematic construction of the theory of Civil Procedure Law in China], [On Law and Business]. 2018 .
4. The choice of the term "subject of civil law of the third category" in the future
After the "General part of Civil Law" and the Civil Code of the People's Republic of China provided for non-corporate organizations, neither legislatively nor in judicial practice there were clear criteria for the correlation of the concepts of "non-corporate organizations" and "other organizations", as a result, a large number of cases of confusion of these terms coexist in the current legislation and judicial clarifications. It is obvious that the legislator has not established a scientific definition of the relationship between them, has not defined the contexts of the normative use of these terms in legislation. The adoption of the Civil Code of the People's Republic of China has not changed this situation, and cases of confusion of these concepts are still observed, which leads to their cross-use in legislation. Some scientists believe that from the point of view of the legislative evolution of a third-category civil law subject in China, an "unincorporated organization" is not a new concept, different from "other organizations", but a legislative modification of the latter, based on the specific conditions of its use. This is the update of the legislative language <22>. The provision of the law as a social norm "must be not only complete and clear, but also consistent and uniform" <23>. We believe that in the future, when developing legislative acts, it is necessary to follow a number of rules.
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<22> See: [Tan Qiping]: [On homogeneous relations between non-corporate organizations and other organizations in the sense of civil subjects], [Sichuan University (Philosophy and Social Sciences Publication)], 2017 .
<23> [Zhou Wangsheng]: [Legislative Studies, Volume 2], [Law Press], 2001 .
The term "other organizations" should be replaced by the term "non-corporate organizations" as a subject of civil law of the third category, along with individuals and legal entities.
The Civil Code of the People's Republic of China is, so to speak, a civil constitution. Therefore, legislation on subjects of civil law must follow the provisions of the Civil Code. Scientists have put forward the following proposals to solve this problem, such as: replace the term "other organizations" in the current law with the phrase "non-corporate organizations and other organizations", and the term "other organizations" should mean only organizations that do not have the status of subjects of civil law <24>.
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<24> See: [Zhang Xinbao, Wang Yumiao]. Decree. op. p. 74.
There is another option: to amend the legislation in the form of "package" amendments, where the term "other organizations" is semantically combined with the term "unincorporated organization". In order to implement the coherence and unity of the concept of "third category civil law subject", such legislative expressions as "other legal entity", "unincorporated organization", "organization without legal capacity" should be introduced into the law enforcement system <25>. All organizations involved in civil relations should belong to the sphere of regulation of civil law, and the term "non-corporate organizations" should be replaced by the term "other organizations" in order to eliminate confusion in legislation, especially in local law.
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<25> See: [Tan Qiping]: [The dilemma of relations between non-corporate organizations and other organizations and their solutions]...
At the same time, it should be borne in mind that there are other organizations that are not legal entities or unincorporated organizations. Due to the broad content and scope of the term "other organizations", it is often used to refer to organizations other than the specific organizations or groups specified in the act with certain functions. When legal regulation is not limited to regulating the activities of specific organizations, the term "other organizations" should be used to refer to organizations other than the specific organizations or groups considered in the norm, when they are prescribed specific actions to be taken by such other organizations.
Conclusion
The dispute about the relationship between the concepts of non-corporate organizations and other organizations at first glance is a comparative analysis of two legal concepts, but essentially reflects the point of view of the organization's qualification as a subject of civil law. The principle of consistency of law requires that the various subsystems of the legal system be interconnected and unified, organically connected into a whole through interaction <26>. Therefore, in the legislative process, it is always necessary to pay attention to the needs of socialist modernization of the rule of law. In the future, it is necessary to use the provisions of the current Civil Code in the legislative process as a basis for standardizing the use of the term "subject of civil law". The legislative process should comply with the spirit of legislation, eliminate the confusion of the two concepts, strengthen the relationship with the Civil Code of the People's Republic of China, successfully work on the creation of normative legal acts that comply with laws and codes, as well as unify local legislation in order to better ensure the unity of the legal system.
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<26> See: [Yang Hui]: [A study of the formation of a socialist legal system with Chinese characteristics]. [Hebei People's Publishing House], 2017 .