- 英文摘要
- For a long time, there has been considerable controversy over the classification of professional guilds in our country. While some scholars classify them as public law associations, judicial practice, in the absence of explicit legal provisions, tends to categorize them as private law associations. However due to the mandatory membership system adopted by professional guilds, where members sacrifice their freedom of association to achieve public interests, and the exercise of quasi-public powers by these guilds, this article categorizes them as quasi-public law associations.
The historical development of professional guilds in our country closely resembles that of Japan, lacking the trend of continental liberalization movements. Instead, it is constructed on institutional safeguards. Therefore, the legal development in Japan serves as a valuable reference for the development of professional guilds in our country. The legal development of Japan, despite recognizing the legality of the mandatory membership system, explicitly states that professional guilds, unlike corporations, do not fully apply the principle of association autonomy. It emphasizes that general meeting resolutions must not violate legal regulations, or the objectives set out in the articles of association. Furthermore, it prohibits the use of majority decisions to infringe on the members’ freedom of thought and belief. It also deems the involvement of professional guilds in politics as illegal. This perspective is highly noteworthy for our country.
The article argues that the regulations applicable to private law associations cannot be fully applied. In other words, limitations must be imposed on association autonomy. Although professional guilds are private law associations, their organizational structure and operation must adhere to democratic principles and, in certain situations, follow the principles of public law. In other words, they are constructed within the framework of the intertwined application of public law and private law. Additionally, the articles of association and general meeting resolutions of professional guilds should consider restrictions within the scope of legal authorization and should not be arbitrarily stipulated. The obligation of members' cooperation adopts a separate theory, taking into account that it should not, through majority decisions, undermine the basic rights of members under the constitution.
- 目次
- 壹、前言
貳、社團法人
一、社團法人之意義
二、社團法人之章程
三、社團法人之總會決議
四、社團法人社員之權利及義務
參、職業同業公會
一、職業同業公會之成立
二、職業同業公會之性質
三、職業同業公會與思想自由、言論自由之關係
肆、日本法制
一、日本職業同業公會性質
二、司法實務案例
三、日本制度之討論
四、小結
伍、我國職業同業公會應遵循之界線探討
一、職業同業公會並無完全的社團自治權
二、職業同業公會章程之限制
三、職業同業公會總會決議之範圍
四、職業同業公會社員協力義務
陸、結語
