Controversy of Body Corporate Revisited: Archeaology of a Concept
Date Issued
2004
Date
2004
Author(s)
Wu, Tzung-Mou
DOI
zh-TW
Abstract
The controversy of body corporate symbolizes the separation of public and private law. This metamorphosis is witnessed by the German Civil Code (BGB) and its followers: the civil codes of Japan and the Republic of China. Taking, therefore, into account the unconsious reception of Japan and China around the end of the 19th century and the beginning of the 20th, we may localize an extremely western institution by reflecting upon existing doctrines-- especially the theory of reality. This article, hence, examines in the first place some common misunderstandings about the theory of fiction and its eclecticism. Through, secondly, the transformation from ancient Roman Law to Hobbes, it tries to demonstrate the Janus-faced character of body corporate: it set its feet on both side of public and private law. Thus the true opposition between the theory of fiction and that of reality can be depicted by underlining the scission of the two dimensions in positive law. After the European version, it turns to the East Asian legal regimes of Japan and the Republic of China for the observation of effects exerted apart from private law by the body corporate , and draws the conclusion at the last part.
Subjects
政黨財產
實在說
合作團體
擬制說
法人
權利主體
寺廟
body corporate
Genossenschaft
property of political party
temple
theory of fiction
Rechtssubjekt
theory of reality
Type
thesis
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