第4章 Abstract

Public service unit is a civil subject system of Chinese own. The juridical person of the public service unit is only existing in China. On the background of the formation of public service unit by the country, the paper tries to analyze the public service unit from a vision of civil subject.The author holds that: in the socialism market economy, the legal problem of public service unit system as a main system shall be attached with great importance. The reform and improvement of public service unit shall be standardized, especially when this falls into the category of juridical person.

The first chapter provides background knowledge on the concept and history of public service unit system. For a long time, we actually failed to understand the concept of public service unit very clearly, especially at a level of legal technology. "Public service unit" has been used in China mainland for more than half a century. It has unique fixed understanding, which I think mostly represents the identity specialty of the financial budget and certain kind of workout nature.

It's an outcome of planned economy and the former Soviet Union civil law. As a kind of civil subject, public service unit faces many conceptual problems such as: on one hand, it is lack of necessary legal technology hallmark; on the other hand, it has no counterpart system internationally.The socalled enterprise means the activity of public service unit in the planned economy system. People can know the nature and characteristic of enterprise by the concept of "public service unit" and vice versa. The socalled unit is mostly taken as organization, which is a match word of people. However, "unit" has no accurate connotation and extension as a legal concept. In 1998, the "Temporary Regulation on the Public service unit Registration and Management" defined the public service unit as: the public service unit in this regulation refers to the social service organizations that is set up and managed by the government department or other organizations backed by the state asset for the social benefit in areas as: education, science and technology, culture and health. However, the standard definition of "public service unit" is not consistent. From the definition in the 1960s, which based on the factors like industry nature, the main body of the host and the capital source to the industry nature factor definition in the 1980s, and then the four factors including the public benefit, host (the country), capital source and the nature of industry, the public service unit is obviously taken as a public service institution.

The author holds that: the legal figure of the current public service unit can be divvied into four aspects: commonweal; national host; public service industry and national asset.

This chapter also recalls the development of public service unit in China, especially the changes that public service unit experienced after China established the planned economy system. By the above review, the research on public service unit can have a necessary basis for the fact judgment.

As to the evolution of public service unit system, the paper holds that the evolution of Chinese public service unit system can be divided into three stages.Firstly, the Establishment of Chinese Public service unit (1949－1978): after the founding of New China, it established a highly centralized planned economy system on the reference of the Soviet Union management style. It successively adopted a series of nationalization measures to take over all the institutions of the former Kuomintang government and establish functional intuitions to administrate the public affairs directly. Secondly, the Reform of Chinese Public service unit (1978－1998) the reform of public service unit system was driven by the tide of economic reform and the change on the system level that was influenced by the main theme of "making money", which was not only involved with the affirmation of the decision makers but the impulse of the public service units themselves. The public service unit tends to be commercialized. Thirdly, the Standardizing of the Chinese Public service unit System (1998－), the nation begun to rethink the negative effect brought by the commercialization of the public service unit and conducted reform on the public service unit to make it standardized and establish a new public service system.The second chapter illustrate on the registration management of the public service unit, which is a authorizing of the establishment, change cancel, and the juridical person qualification of the public service unit by the national government. The nature of the registration is to confirm the qualification of the juridical person. The author holds that the registration system for the public service unit is not absolutely necessary. The registration of public service unit is different from the industrial and commercial registration as well as the registration of civilian organization. It only has one main body instead of many. Thus, the public service unit registration system shall be changed as a recording system designated to the public service unit that is defined as juridical person of the public service unit or the community and the juridical person of the enterprise confirmed by the industrial and commercial administration department. This is a phenomenon of "Double Juridical person". With an analysis of the reason and the scope, it can be involved with legal problems such as interest tropism.

The third chapter makes legal analysis on the profit oriented behaviors of the public service unit juridical person, which holds that: the public service unit is a kind of public service juridical person institution and commonweal is the legally prescribed demand of the Chinese Public service unit juridical person. Chinese public service unit shall serve the society and public according to the related regulations. However, as the financial compensation is limited and the staff is requiring an increase of salary, many public service units have to make "the money making policy" as their primary target. They are over commercialized as a result. Consequently, there are many negative effect: the disharmony between economy and society, the damage of the public benefit value, the wrong doing of the main task and the contradiction between the public benefit and commercial profit. The legal outcome is: the nature and function of the public service unit juridical person are distorted, which results a conflict between the commonweal goal and the commercial interest. Thus, the commercialization of the public service unit, which should serve the interest of the public shall be avoided.

Chapter four deals with the type of the public service unit. In an era of planned economy, public service unit is a very clearly defined organization. After the reform and opening, the public service units in China tend to be stratified. Different kinds of public service units have different legal hallmark. There are three categories traditionally in the public service units. Firstly according to the industry, a social organization is judged if it is an public service unit. For a long time, this criterion is used to divide the public service unit. After the reform and opening, only use industry as a criterion to separate the public service unit seems too simple and formalized. Secondly the public service units are divided according to the capital source. It can be divided as: total budget, balance budget, and nonbudget. Thirdly according to the function of the public service units, they can be divided into certain categories. The public benefit category is the mainstream of the public service unit, which matches the function definition and nature; Actually, many public service units plays a role as a government administrator and enterprise manager. The author have analyzed the legal category of Chinese Public service unit and got a conclusion that the current Chinese public service unit can be divided into three categories:the public juridical person who has public right, the public juridical person who serves the public benefit cause, and the private juridical person who serves the commercial interest.

Chapter five illustrates the legal position of the public service unit and the category mode selection of the juridical person. Based on the knowledge of the importance of a research on the category analysis, the chapter reviews several juridical person category mode selections in the world on the basis of the improvement of the current juridical person classification system and compares the different ideas of the juridical person classification in China. The author also holds that the establishment of juridical person classification system mode is the legal representation of the social organization. The different social organization is the specific content of juridical person. Due to the difference of the social system and the difference on the legislation and theory of juridical person in the world, the juridical person has different classification criterion and method.

The book holds that the juridical person classification mode of ancient Rome is still widely used today. The continental legal system countries mostly inherit the Rome mode such as: public juridical person, private juridical person, community and syndicate juridical person, profit and nonprofit juridical person. It is proved that these mature way of juridical person classification are proved by the history that they are very scientific and sophisticated in the legislation technology. What's more important: if the juridical person classification can meet the need of the social and economic development, it can have successful performance. With 20 years of development, our country has witnessed great change in the environment at home and abroad. The juridical person classification mode in the "Civil General Principle" fails to meet the needs of the reality, fails to make the juridical person system function fullfledged. The objective situation needs us reconstruct the juridical person classification mode on the basis of careful thinking. There should be discrimination between community juridical person and syndicate juridical person, commercial juridical person (profit oriented) and noncommercial (commonweal and intermediate) juridical person. To sum up, it is to make the dualism of public and private juridical person as basis, to make the community and syndicate juridical person classification as basic category, make public commonweal, intermediate and profit juridical person under the community juridical person; syndicate juridical person only has commonweal and intermediate. However the public service unit juridical person has lost its meaning of standardize, thus, it shall be abolished. The current public service unit juridical person classification mode shall be integrated to public juridical person, public juridical person syndicate, public juridical person community and commercial juridical person.