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慈善组织的准入制度即是国家准许具有特定慈善目的,符合慈善组织资格的民间组织设立所设置的标准与程序规则的制度规范,也即产生各种慈善组织的制度。[1]目前慈善组织的准入制度主要有两种,一种是慈善属性与法人登记合二为一的捆绑制,另一种是慈善属性与法人登记相互分离的认定制。而《慈善法》刚刚出台,三条例中也对慈善组织的准入进行了界定,即确立了以实行认定制为主,直接登记为例外的双轨并行体制。对于此问题,以日本为代表的大陆法系国家已经完成了从审批制到认定制的转变,以台湾、香港为代表的英美法系则更偏向于直接登记制,甚至还有一定条件下的豁免登记制。如前所述,目前我国实行两者并用的双轨制度,法人资格的取得及慈善属性的认定大大提高了我国慈善组织准入的门槛,因此,改变我国的双重管理体制,既是迫切的现实需要,也是慈善法颁布的应有之义。
The access system of charitable organizations is the system of standards and procedural rules set up by the state to allow non-governmental organizations with specific charitable purposes and in line with the qualifications of charitable organizations, that is, the system of producing various charitable organizations. [1] At present, there are mainly two kinds of access systems for charitable organizations. One is the binding system in which charitable properties and corporate registration are combined, and the other is the recognition system in which charitable properties and corporate registration are separated from each other. The “Charity Law” has just been promulgated. The three ordinances have also defined the access of charitable organizations, that is, the establishment of a dual-track parallel system with the exception of the system of accreditation and direct registration as the exception. For this issue, the civil law countries represented by Japan have already completed the transition from the examination and approval system to the accreditation system. The common law system represented by Taiwan and Hong Kong is even more inclined to the direct registration system, and even under certain conditions Exemption from registration system. As mentioned above, at present, China has implemented the dual-track system of combining the two. The acquisition of legal personality and recognition of charitable attributes have greatly increased the threshold for the access of charities in our country. Therefore, changing our dual management system is an urgent and immediate need. It is also the proper meaning promulgated by the Charity Law.