论捐助法人决策机构的正当性
On the Justification of the Decision-Making Body of the Donation-Based Juridical Person

《民法典》第93条第二款规定了捐助法人的决策机构。本文首先通过概念辨析并结合法律规定和基金会实务，对捐助法人决策机构进行概念界定。其次，从理论研究现状、法律法规规定等角度分析捐助法人决策机构存在合理性欠缺、具体规定不完善等问题。再次，为探究捐助法人决策机构的合理性，首先通过与财团法人作对比，得出捐助法人和财团法人具有本质区别，以此为前提研究我国基金会发展历史，总结出决策机构实为基金会摆脱政府过度限制，回归私主体性的有力工具，从历史解释的角度可以得出捐助法人决策机构的存在具有一定的合理性。最后，就捐助法人决策机构具体规定不完善等问题，借鉴财团法人近年变革的经验，将“决策机构”解释为独立于执行机构和权力机构的特殊机构，并提出区分官办与民办、尊重捐助人意愿、强化内外监督的法律建议。
Article 93 (2) of the “Civil Code” stipulates the decision-making body of a donation-based Juridical person. This paper firstly defines the concept of the decision-making body of the donation-based juridical person through conceptual analysis and combines the legal provisions and foundation prac-tice. Secondly, from the perspectives of theoretical research status, laws and regulations, it analyses that there are issues such as lack of reasonableness and imperfect specific regulations in the decision-making bodies of donation-based juridical person. Once again, in order to explore the rationality of the decision-making body of the donation-based juridical person, first of all, by comparing it with the consortium legal person, it is concluded that the donation-based Juridical person and the consortium legal person have essential differences. Based on this premise, the development history of foundations in China is studied, and it is concluded that the decision-making body is actually a powerful instrument for foundations to get rid of the government’s excessive restriction and return to private subjectivity. From the perspective of historical interpretation, it can be concluded that the existence of the donation-based juridical person decision-making body has certain rationality. Finally, regarding issues such as incomplete specific regulations for the decision-making body of donor legal entities, drawing on the experience of recent changes in consortium legal entities, the term “decision-making body” is interpreted as a special institution independent of the executing agency and power organization, and put forward the legal suggestions of distinguishing between government-run and privately-run, respecting the will of the donors, and strengthening the internal and external supervision.