The Analysis Of The Legitimacy Of Juristic Person Of State Organ

The status of State Organ as Juristic Person was initially established by the former Soviet Union civil code. Since the rules of Juristic Person of State Organ were stipulated in the General Principles of the Civil Law in 1986, Juristic Person of State Organ became an important type of Juristic Person in the civil law of our country. But more and more theoretical and practical problems appears step by step which directed to the rules of the status of State Organ as Juristic Person, that need we rethink the rationality of the rules of State Organ as Juristic Persons. In the Civil law countries and areas, the Juristic Person of State Organ displays the different theory development trajectory in the public law and the private law. Even though there are two kinds of theory —Organstheorie and Vertretertheorie—in civil law system, in the actual legislation and explanation, the angle of Vertretertheorie gets agreement from more and more Germany scholars and becomes the generally doctrine. In Japan, Taiwan and the Mainland of China, the Vertretertheorie becomes the generally doctrine because in these countries and ditrict the concept of representative and agency is distinguished in theory or legislation. This is the Logic premise in the technology of representive system in the Juristic Person in the Continenal Law system countries that the organ is the ingredient of Juristic Persons, that the organ behavior is corporation self s behavior, that the organ does not have main body position and it is impossible that organ becomes a Juristic Person.That State Organ do not have the status of a Juristic Person in the private law is the common view in the academic circles of public law and civil law. As the ingredient of the state, the civil law status of State Organ is relevant with which of states. At first the state was aworded the status of Juristic Person in the public law system which means that the state is the subject to which the sovereign right belongs, which doesn’t mean that the state is the subject to which the property right belongs. The fiscus was the subject to which the property right belongs. But as the state is governed by its own law, state and fiscus became one. The fiscus became another name of the state when it engages in civil activities. Then the state became a juristic person in civil law. The State Organ in civil law set up as a representative of the state in accordance with the theory about the structure of the juristic person in the civil law. Although since the beginning of the 20th century there has been different opinion of the status of State Organ, the common view is that the subject status of the State Organ exists only in specific areas such as State Organic law. In order to avoid the wrong conclusion of the juristic person which has different mean in public law and civil law, we should assistant that the concept of juristic person refers to the subject only in civil law. Whether the State Organ is subject in public, it is not a juristic person.The rules of juristic person of State Organ was established in the specific historical context of the Soviet’s highly planned economy and law system of making private laws public. Highly planned economy system requires identifying the State Organ as the subject in law because of their status of the dominant of the social resources. While the civil law code gives the power of the public law subjects as the juristic person status. The rule of Juristic Person of State Organ was migrated by Chinese Civil Law because of the similar planned economy and law system. Under the background of reforming the economic system and rebuliding the status of private law, the current legislation of Juristic Person of State Organ has lost its institutional basiss and has been criticized by the Russia’s scholars. Russia’s current legislation of Juristic Person of State Organ and theory of transitional nature of the legal person system that authority. The change of Russia’s legislation and theory of Juristic Person of State Organ indicates the transitional nature of Juristic Person of State Organ system.Under the market economic system framework and the strategy of ruling the country by law, adhering to the status of State Organ as Juristic persons can’t overcome the dilemma of theory and system. In the system of our country, The State Organ as Juristic persons system has great defect on establishing, property rights and responsibility, the scope and restrictions of civil activities of the State Organ of Juristic persons system. The Juristic Person of State Organ system is contradictory with the foundation of juristic person, the civil law order and the principle of the rule of law of our country socialist market economic system. The Juristic Person of State Organ system steps into the insurmountable trouble which caused by the system Juristic Person of State Organ itself. We can get out of the trouble by denying the status or State Organ rather than improving the current system.We should abandon the concept and rules of the State Organ being juristic person in the future civil code decidedly. The scheme of improving under the premise of legal status in the current system is not an advisable option. The so called Legal Personalization of State Organ which has specific connotation in the countries and districts such as Germany, Japan and Taiwan is different from the rules of State Organ juristic person in the Soviet Union (Russian) and our country. The practice of Legal Personalization of State Organ cannot be the reason why we adhering the rule of State Organ juristic person. Denying the status of state donot means dening the state’s activities in civil law, on the contrary, under the background of the rule of law, we need to continue to improve the system of the country’s civil activities such as, stipulating the state juristic person status In the future civil code clearly; Improving the system of institution juristic person by using the experience of the concept and legislation of Legal Personalization of State Organ; carrying out the principle of equality in the state’s civil activities and limiting the state engaged in profit-making behavior in a reasonable manner so as to realize civil action of the state under the rule of law; Clear the property sscope and the enforcement procedures for the responsibility of the state; prescribing the state enjoying the right of personality of private person in the civil legislation, and so on.