Charitable Trust As A Charitable Organization

Since the implementation of the charity law in 2016,the approval system of charitable trust has been changed to the registration system,and the number of registered charitable trusts has increased year by year.However,the proportion of the scale of charitable trust property in charity is still low.According to the data,in 2019,China’s charitable trust property accounts for less than 1%of the total public welfare resources.Moreover,the scale of charitable trust property in 2020 is about 58.2%lower than that in 2019.It can be seen that charitable trust still needs further development,and there are still many obstacles in the process of development.At present,tax preference is an important factor hindering the development of charitable trust,which has become the consensus of the theoretical and practical circles.How to get tax preference for charitable trust is not clearly stipulated in Chinese law,but how to get tax preference for charitable organizations is a comprehensive regulation in China.Therefore,this paper attempts to discuss the essence of charitable trust,demonstrate that charitable trust belongs to an organization,provide a relatively feasible solution to the problem of tax preference of charitable trust in practice,and provide theoretical support for the formulation of tax laws and regulations of charitable trust.This paper is divided into four chapters.The first chapter mainly analyzes the necessity of charitable trust organization theory.This chapter first proposes that in practice,the biggest dilemma in the development of charitable trust in China is that it is difficult to obtain tax incentives.Throughout China’s tax law system,charitable trust from the establishment stage,operation stage to the charitable trust beneficiary receiving stage,there are no relevant tax preferential provisions,only the tax preferential provisions of charitable organizations.Recognizing the status of charitable trust as an organization can make charitable trust refer to the relevant provisions of applicable charitable organizations,quickly change the current situation that charitable trust can not obtain tax preference,and help to clarify the legal status of charitable trust as an important organization engaged in charity.The second chapter mainly based on the legal norms of our country,comparative analysis of charitable trust,charitable donations and charitable organizations,trying to demonstrate the organizational attributes of charitable trust in the norms.The author first introduces the characteristics and modes of charitable donation and charitable trust establishment,and then analyzes the similarities and differences between charitable trust and charitable donation.Charitable donation is similar to the establishment of charitable trust,but charitable trust is essentially different from simple charitable donation.Charitable trust has a complex relationship,independent and stable structure,and plays a similar function with charitable organizations.Then the author discusses the compatibility of charitable trust and charitable organization based on the legal norms of our country.The purpose,establishment procedure,internal governance,termination and liquidation procedure of charitable trust and charitable organization are consistent.The third chapter attempts to analyze the organizational attribute of charitable trust theoretically.Firstly,it introduces the theory of trust essence:contract theory,property theory and law subject theory.Contract theory and property theory can not explain charitable trust reasonably.The theory of subject of law is based on the theory of property.It holds that modern trust has not only property independence,but also personality independence in the process of continuous development.The author agrees that charitable trust has entity status,but thinks that charitable trust does not need to belong to legal person,it should be an organization.Therefore,the author analyzes the concept of organization,elements and the theoretical defects of the current non-profit organization.It is pointed out that charitable trust can not only meet the requirements of elements in the organization,but also make up for the deficiency of non-profit group theory.Finally,this chapter introduces Henry hansman’s "asset partitioning" theory to discuss the organizational attributes of charitable trust.This paper introduces the concept of "asset partitioning" theory,analyzes the organization state and charitable trust under the theory.Under the theory of "asset partitioning",charitable trust has a strong independence,reflecting a strong organizational characteristics.The fourth chapter of this paper mainly analyzes how to choose the legal organization form of charitable trust in China.This paper first introduces the development process of trust organization form in Britain,America and Japan,and then discusses the specific choice of charitable trust legal organization form in China.Both British and American countries tend to regard trust as an independent organization,and Japan also recognizes the legal subject status of trust to some extent in theory and some legislative rules.Combined with the legal practice of our country,the Civil Code divides the organization into legal person organization and non legal person organization.Charitable trust should not be included in legal person organization,nor can it be included in the existing form of non legal person organization.Therefore,the author thinks that charitable trust should be a new independent form of organization which is different from legal person and the existing unincorporated organization in China.It is a special unincorporated organization created by Trust Law and Charity Law.