The Jurisprudential Research On The Third Sector In China

Democracy and market economy are impact on the civil right and the value of the human which are the fertile soil for the emergence and development of the Third Sector since modern society. The Third Sector with its strong sense of social responsibility and self discipline also provide the impetus and protection for democracy and the rule of law. Power constraints and right protection have become the core of democracy and the rule of law yet. It requires structure the good relationship between the social rights and the state power. Expanding the boundary of the social rights, enhancing the self discipline of the Third Sector and establishing a regulatory of the social rights are also very necessary.The nearly 30 years of Chinese history has proven that the Third Sector was grow out of the reform and open and grow up in the tide of market economy. The Third Sector contributes to the socialist construction with its particular fashions. Learning from historical experience and looking forward to the future, it is not difficult to find that the aim of building a harmonious socialist society makes the development direction of the social rights must be in the accordance with the state power. In other words, the ultimate aim of the government and the Third Sector are the same:serve for the people. The national nature and the ultimate aim decide the development of the Chinese Third Sector must be different of the western way.Actually, the law has universality, at the same time,it is also a kind of local knowledge. The law system is so different in every region because of the different historical culture, social construction and national nature. Therefore, to build the law system of the Third Sector with Chinese characteristics should base on the guiding ideology of the Marxist Theory and the Socialist legal concept. Elaborating the fundamental theory of the Third Sector and the relationship between the Third Sector and the rule of law are the effective way to build the legal system of the Third Sector. Combining the theory with practice and putting the fundamental theory on the guiding role are the basic research method of this article.Firstly, describing the current situation and explaining the particular characteristics of the Chinese Third Sector. Then, elaborating the functions of it. The Third Sector is of great significance to the rule of law.secondly, illustrating the fundamental theory of Chinese Third Sector. The theory of civil society is considered to be the theoretical basis of the Third Sector all the time. Western scholars generally believe that the theoretical basis of the Third Sector made a change from the "civil society-political country" mode to the "economic field- civil society- political country" mode by Habermas, Cohen and Arato. This change was proved by the booming development of the Third Sector since 1960’s in western world. However, it’s easy to see the serious consequences of placing the western theory into Chinese reality. For the sake of making the theoretical basis of the Third Sector cleanly, an inclusive attitude should be taken for the whole research. In addition, comparing the differentia of two power restriction mode and thinking deeply about the mode of China are the groundwork of declaring the relationship between the Third Sector and the power restriction.Thirdly, defining the legal rights and obligations of the Chinese Third Sector are the foundation of deeply analysis and research. On the aspect of legal rights, due to the Chinese Third Sector sinks in the institutional predicament in the reality, some measures should be taken to change this state of affairs. As a result, it’s indispensable to define the legal rights of the Third Sector and build a benign system environment of it. On the aspect of legal obligations, begin with the discussion of the public responsibility of the Third Sector is in favour of defining the legal obligations of it. And then, building the obligatory supervision mechanism to guarantee the normative operation of the Third Sector is indispensable for forming a harmonious legal system of the Third Sector with Chinese Characteristics.To structure a favorable legal system of the Chinese Third Sector should based on the guiding of principle of Marxist and the Socialist legal concept. This is a pivotal way to build harmonious socialist society.