Research On Public Law Protection Of Charity As The Third Distribution Mechanism

Along with the continuous development of the national economy,social equity has become an important issue concerning the healthy development and stability of China’s society,especially at the level of income distribution,which is more obvious.Article14 of the 1999 Amendment to the Constitution of China explicitly implements the distribution system of "adhering to the principle of distribution according to labor and the coexistence of various modes of distribution" in Article 6 of the Constitution,making the construction of the distribution system a fundamental task in the political life of the Party and the State,and giving it a strategic height for the development of socialism with Chinese characteristics.The Fourth Plenary Session of the 19 th CPC Central Committee The Fourth Plenary Session of the 19 th CPC Central Committee proposed to "attach importance to the role of the third distribution and the development of charities and other social welfare undertakings".Thus,charity,as the main mechanism of the third distribution,is formally incorporated into the income distribution system of "multiple distribution methods" as stipulated in the Constitution of China.The charitable organizations in the Charity Law are subjects of private law,but the law provides for a large number of cases in which public power intervenes.It is necessary to ask what is the purpose of providing public power,what is the original intention of public power to intervene in the field of charity,and what is the basis of justification,and then to promote the development of charity through public law.This article discusses the public law guarantee of charity as the third distribution mechanism in the following four parts:The first part: the theory of philanthropy as a public law guarantee of the third distribution mechanism.Firstly,the basic concepts of philanthropy and the third distribution are clarified to facilitate the identification of the differences between philanthropy and the third distribution.Secondly,we analyze the necessity of public law to guarantee philanthropy as the third distribution mechanism,specifically including the need for public law to guarantee the identification of charitable organizations,the need for public law to guarantee the correction of unequal relationships in charitable activities,the need for public law to guarantee the incentive of philanthropy,and the need for public law to guarantee the public welfare of philanthropy;finally,we elaborate the basic principles of public law to guarantee philanthropy as the third distribution mechanism.The principle of public law provides abstract guidance to guarantee the development of philanthropy as the third distribution mechanism.The principle of subsidiarity provides the theoretical basis for the coordination and benign interaction between philanthropy and public power;the principle of proportionality clarifies the boundaries of administrative agencies’ involvement in philanthropy;the principle of human rights guarantees responds to philanthropy with the concept of sharing embodied in the "socialism" principle of the Constitution,which is then divided into the right to equality,the right to freedom and the right to sharing.The principle of human rights protection responds to the concept of sharing embodied in the "socialism" principle of the Constitution,which is divided into the right to equality,the right to freedom,and the right to share,giving a new meaning to charity;the principle of legal power runs through the protection of charity in accordance with the law,in order to achieve the purpose of truly protecting the development of charity through legal means.The second part: the reality of charity as the third distribution mechanism of public law protection.According to the Charity Law and its supporting laws and regulations,and combined with the current situation of legal implementation,we analyze the main problems of charity as a public law guarantee of the third distribution mechanism: first,the lack of a sound identification mechanism for charitable organizations.This is reflected in the absence of necessary conditions for public welfare;the obvious inadequacy of procedures for the establishment of charitable organizations;and the absence of entity rights after the establishment of charitable organizations.Second,the lack of a sound mechanism for regulating charities.This is reflected in the frequent occurrence of compulsory fundraising and the lax regulation of the use of charitable donations.Again,the lack of effective incentives for charity.This is reflected in the narrow scope of tax incentives for charitable organizations;the serious lack of tax incentives for private(legal)persons;and the ineffective implementation of charity awards.Finally,the three-dimensional frontier of charity development has not formed a good cycle.This is reflected in the dilemma of business model for charity;the lack of good articulation and interaction between government and charity;and the lack of timely update of charity supply content.The third part: the legal path of philanthropy as the third distribution mechanism of public law guarantee.First,improve the identification mechanism of charitable organizations.This is reflected in the construction of public welfare identification standards;improving the establishment procedures of charitable organizations;and guaranteeing the entity rights of charitable organizations.Secondly,to build a perfect regulatory mechanism for charities.This is reflected in the all-round supervision of charitable fund-raising;strict regulation of the use of charitable donations.Again,establish a comprehensive charity incentive mechanism.This is reflected in the broadening of the tax scope of charitable organizations;increasing the magnitude of tax benefits for private(legal)people;and improving the diversified charity commendation mechanism.Finally,realize the effective connection between the three allocations of charity.This is reflected in the return of beneficiaries to the primary distribution system by skillful charity;improving redistribution to realize the positive interaction between government and charity;and improving the quality of life of recipients in the third field.