| Unincorporated organizations, which widely exist in the social life, are extensively studied in our country by civil law research. Now, the following problems still exist in the understanding of the unincorporated organization theory and judicial circles:(1) what is the concept of unincorporated organization, which social organizations included;(2) how the position of the unincorporated organization in the civil substantive law, whether to enjoy the qualification of the subject;(3) how the position of the unincorporated organization in the civil procedure law, whether can be the litigant. There is no provision about the concept of unincorporated organization in our country, only "other organizations" has been defined, and certain social organizations have been identified as “other organizationsâ€. However, this provision is too simple to guide the practice. The theory on this definition is controversial, leading to the confusion of its concept. When it comes to the civil substantive legal status of the unincorporated organization, there are many different opinions in theory. How about the legal regulations? “General principles of civil law" and "contract law", "copyright law" and other laws and regulations have contradiction, making the problem more complex. Status in civil procedural law faces the same problem. Scholars have put forward many theories to prove illegal organizations enjoy civil lawsuit qualification, but the correctness of these theories have yet to be verified.Based on this, this article mainly consists of three chapters, focuses on the analysis of the unincorporated organization’s legal status of civil entity and civil legal status.The first chapter mainly analyzes the concept of unincorporated organization. After comparing about Germany’s "associations without legal capacity", Japan’s "unincorporated associations and consortia" and Chinese traditional theory of the unincorporated organization, I put forward the definition of it: the unincorporated organizations is a kind of social organization, which is composed of a plurality of natural human from the natural view of composition, and it is not belong to a corporation. It has the following characteristics:(1) establish in accordance with the law;(2) has the certain organization, but the organization is flexible, there is no meaning mechanism in a unincorporated organization, and it cannot form its own organizations will;(3) do not have the qualification of a legal person;(4) the unincorporated organization pay more attention to human nature.The second chapter discusses the legal status of civil entity of unincorporated organization on the basis of the first chapter. In the introduction to the continental law system and common law on this issue, different provisions are discussed. At the same time, the analysis of scholar opinions make it clear that the key to clarify the substantive civil legal status of the unincorporated organizations is to raise the accurate judgment standard. Then I proposed that the single will and personal should be the standard. Combined with the analysis on the first chapter on unincorporated organization’s characteristics, we find that the unincorporated organization do not have a single will due to the lack of legal fiction. As a result, it doesn’t enjoy the qualification of the subject. Unincorporated organization is not a single subject, is a combination of all the members. Finally, I analyzed the relationship between the unincorporated organization and its property, liability, name and member: the so-called property belongs to all the members of the unincorporated organization, common debt called its debt actually belongs to its members, its name is actually the name of all its members in order to convenient to referred to as, the relationship between it and certain member is the relationship between all the members and the certain member.The third chapter discusses the status of civil procedural law of the unincorporated organizations on the basis of the second chapter. In brief, unincorporated organization can become a litigant on the consideration of litigation convenience, but in the end, the outcome of litigation is accepted by all its members. Because there is no inevitable connection between the civil litigation subject qualification and the civil litigation subject qualification, the civil procedure law can determine who could be a litigant according to the needs of litigation convenience, and the litigant does not need to have a direct stake with the object of action, unincorporated organization can also participate in the litigation as a litigant in procedure, in order to protect the interests of all the members. |
