Research On Charity Law In The UK

In the UK and other common law jurisdictions,charities are independent organisations which are different from government and for-profit sector, and are aimed at realising the charitable purpose and benefiting the public. Accordingly, as private organisations, charities should be independent from government and comply with the principle of private law autonomy; meanwhile, different from for-profit enterprises, charities should be limited by the principles of charitable purposes and public benefit and other legal rules. In this context, the thesis argues that as the basic legal mechanism governing charities, charity law should balance the relationship between private law autonomy and public benefit, protecting the independence of charities on the one hand and ensuring the realisation of the charitable purposes and public benefit pursued by charities on the other. This idea, the thesis argues, lays the foundation for the existence and development of English charity law system. This argument forms the basic logic of the discussion by the thesis on charity law in the UK. On this basis, the thesis explores the basic theories and systems of charity law and the relevant experience and lessons in the UK to support the theoretical and practical development of charity law in China.In the Introduction, the thesis analyses the background, research question, research methods and research structures and has a literature review relating to charity law in the UK. The research background is made up of the significant role of the charity undertakings in modern society, the existing problems of the charity undertakings in China and the advanced level of charity law in the UK. Accordingly, the thesis examines the basic theories,principles and systems of charity law in the UK from the historical, comparative and empirical perspectives.In terms of the research structure, the thesis is divided into six chapters,which discuss an introduction to charity law, charitable purposes, charity governance,funding for charities,charity regulation and the enlightenment of charity law in the UK.Thereinto,Chapter 1 is concerned with an introduction to charity law. The thought in Chapter 1 is developed in Chapters 2-5 comprehensively, where the most fundamental legal mechanisms of charity law in the UK and their respective reforms are evaluated systematically from the four core aspects (i.e., charitable purposes, charity governance, funding for charities, charity regulation). In Chapter 6, taking China’s conditions into account, the thesis summaries the guiding significance of charity law in the UK in developing China’s charity law and practice.Chapter 1 provides an introduction to charity law. This chapter examines the fundamental theories of charity law in the UK (the theoretical framework of charity law), and creates a range of theoretical problems respecting charity law (including but not limited to charity law in the UK). In particular, the thesis focuses on charity and charity law and has a careful analysis of the definition of charity, charitable activities and charities; and the definition and nature of charity law, its political, economic, societal and cultural foundations, legal sources, core principles and systems, which can provide a theoretical framework for and background knowledge of the further exploration in the following chapters. This chapter argues that the legal definition of charity may have some similarities to its daily understanding, but it still has its own characteristics and thus should be provided by law in a strict manner. Charity could be interpreted by analysing charitable activities and charities. Charity law is the legal rules relating to charitable activities and charities and belongs to social legislation. Charity law is based on democratic politics, market economy, civil society and charity culture. The legal sources of charity law include statutory law, case law, etc. In the UK, the trend of the codification of charity law is gradually emerging. The core principles of charity law in the UK comprise charitable purposes, public benefit, exclusively charitable, non-profit distributing, non-political, independent, non-governmental, etc. The basic systems of charity law cover the identification mechanisms of charitable purposes, charity governance, funding for charities, charity regulation, charity taxation and so forth.Chapter 2 examines charitable purposes. This chapter outlines the role and history of charitable purposes. Then, taking Charities Act 2011, other statutory law and case law into account, it evaluates the identification mechanism of charitable purposes by analysing the types of charitable purposes and the public benefit requirement. This chapter argues that charitable purposes form the basis of charity law in the UK. With the development of English case law and the guidance on public benefit published by the Charity Commission, the identification criteria of charitable purposes, public benefit and other abstract legal definitions have been made more specific. This approach is of great value to distinguish charities from other organisations, to further build the relevant privileges of charitable status and regulatory systems, and to promote the development of the charity undertakings.Chapter 3 accesses charity governance. Firstly, this chapter has an analysis of economics of charity governance, its main features and legal framework. On this basis, this chapter points out that the charity trustees and their fiduciary duties lay the foundation for charity governance in the UK charity law; and examines the definition, capacity, rights, duties and enforcement mechanisms of charity trustees. Meanwhile, to ensure the efficiency of charity governance, the UK charity law builds the related systems concerning reports, accounts, audits and publicity. This chapter argues that the core of charity governance in the UK charity law is the fiduciary duties and other duties of charity trustees and their performance. The law should further improve the mechanisms with respect to charity governance which is based on the fiduciary duties of charity trustees on the one hand, and enhance the systems governing accounts, reports, audits and publicity on the other, so as to maintain the independence of charities and to efficiently realise the charitable purpose and public benefit.Chapter 4 evaluates funding for charities. First, this chapter explores the definition of funding for charities, its significance and the related legal framework. Accordingly, this chapter has a more detailed analysis of the main methods of funding for charities, i.e., public charitable collections, professional fund-raisers, business participators, financial assistance, trade and investment. By evaluating the law and practice in the UK, this chapter supports that the general trend of funding for charities is diversification, which not only provides a more solid financial protection for charities to achieve their charitable purposes and public benefit, but also becomes an important tool to protect the independence of charities. During this process, the law should protect the right of donors and the general public to know and the public confidence and trust of charities without imposing an excessive burden on funding for charities. In addition, in terms of some innovative funding methods, charity law should respond positively so as to promote the diversification of funding for charities and to protect the legal rights and interests of the relevant stakeholders.Chapter 5 explores charity regulation. First, this chapter has an overview of the significance, justifications, principles and models of charity regulation. On this basis, the chapter carries out a comprehensive examination of the Charity Commission, as an independent regulator, by assessing its history, nature, functions, duties, internal governance mechanisms and major regulatory systems. In addition, this chapter examines other regulatory bodies such as courts, the Attorney General and local authorities, by dealing with their roles and the recent changes. After examining English law in this area, this chapter argues that a modern regulatory system should be shaped to protect the independence of charities and to assist in the realisation of charitable purposes and public benefit. With regard to the traditional regulation, the regulators should develop an efficient, proportional and targeted regulatory mechanism. And they should also play a supportive role to take a range of measures encouraging the development of charity. Furthermore, the regulators themselves should build the relevant publicity, transparency and accountability mechanisms.Chapter 6 analyses the guiding significance of charity law in the UK. The chapter summaries the enlightenment of the reform of charity law in the UK and argues that China should draw on its meaningful experience to tackle the related problems and to establish and improve the charity law in China. First, this chapter explores how to draw on the principles of charity law in the UK to transform the ideas and systems of China’s charity law. Second, this chapter argues that China should learn from the UK charity law to enhance its charity law systems, such as designing reasonable identification mechanisms of charitable purposes, building governance and accountability mechanisms with the focus on charity trustees, improving the supportive mechanisms adapting to the diversified methods of funding for charities, and shaping a modern charity regulatory system.