On the Constitutional Protection of Foundation and Its Supervisory Institution� —also comment related Legal Institution of Foundation in Our Country

• Main Authors: Hsi-ching Yen, 顏錫卿
• Other Authors: Chien-Liang Lee
• Format: Others
• Language: zh-TW
• Published: 2005
• Online Access: http://ndltd.ncl.edu.tw/handle/m9e2fe

碩士 === 東吳大學 === 法律學系 === 93 === Foundation system, which has existed since the Ancient Rome age, mainly represented sacrifice and memory to the dead in the beginning, and gradually extended to the charity purpose afterward. However, the concept of the foundation system in modern times is different from that in the past. Take Germany for example, in the 19th century traditional knowledge of the foundation system was rejected either in theory or in practice. Alternatively, German scholars developed it into a legal person that is distinct from an association. In Germany, ‘foundation’ is defined as a concrete form of the founder’s particular purpose. This indicates that the foundation establishment may relate to the implementation of specific constitutional rights of the founder. Consequently, some German scholars believe that the establishment of the foundation is likely to involve the protection of different constitutional rights in different cases. In this thesis, I agree that the objective of the foundation is crucial. Yet, when the topic is examined with the aspect of “to form the foundation through donating property”, it can be found that the establishment of the foundation is to ensure the freedom of the founder’s general behavior as well as the property right. Such constitutional right is called “Stifterfreiheit” in German. Owing to the definition of the foundation, “the founder’s will” is naturally regarded as the supreme principle to set up, to apply and to interpret the foundation law in some German theory and practice. This opinion shall be taken notice of. Although the establishment of the foundation relies on the founder’s donation, the foundation owns its individual legal personality which is separated from the founder. Moreover, the foundation possesses a certain extent of autonomy, on account of being a legal principal part in private-law society. For the above reasons, during the supervision, the supervising organization has to respect the autonomy and independence of the foundation based on its generally behavioral freedom. Likewise, the government has to ensure the autonomous territory of the foundation and to prevent it being deprived in case “the founder’s will” and “the foundation autonomy” are in conflict. The supervision to the foundation can be explained as a broad sense as well as a narrow sense. The former is adopted in this thesis. There is a section discussing the foundation institution with the dimensions of establishment and enforcement. In the first part, it emphasizes primarily the constitutional-right restriction over the period the foundation law was legislated. In the second part, the claims concerning “the protection for the implementation of the founder’s will” and “the protection for the autonomy of the foundation” are raised. By reviewing the supervisory institution of the foundation, this thesis considers that the current regulation and supervision regarding the domestic foundation are obviously insufficient. The reason is that the regulation in the civil law is far too simple and without explicit authority in supervision. Generally, within the jurisdiction, most of the instructions given by the supervising organizations are related to the constitutional rights of the founder. Hence, under the circumstance of lacking the legal authority, the above instructions are against the requirement of the preservation principle of law. As for the draft of the foundation law, the restrictions about the minimum amount of property donations (§9-I) and the qualifications of the foundation members (§16) are also against the percentage principle of law. It is in violation of the Constitution and to invade the constitutional right of the founder.