| As a newly created concept by the General Rules of the Civil Law, unincorporated organizations are endowed with civil subject status, but not with legal capacity as natural persons and legal persons have been, which violates the principle of equal status of all civil subjects and constitutes a defect in legislation. Legal capacity was originally applied to make all natural persons civil subjects and then to unite natural persons and legal persons as civil subjects in the German Civil Code. Therefore, legal capacity is technically granted to someone to entitle him/her to be civil subject, and subject status is its sole attribute. There are two mistakes relating to the application of legal capacity in the study of civil law in China, one is to equate legal capacity with the scope of rights enjoyed by a civil subject, and the other is to employ the concept of partial legal capacity to protect the fetus, the deceased and other non-statutory subjects. To preserve the abstract theory of legal capacity, the scope of rights should be treated as a separate study completely different from legal capacity, and the concept of partial legal capacity should be abandoned to keep legal capacity indivisible. The complete independence of an organization from its members, especially in the aspect of property, is not a prerequisite for granting it legal capacity, because the doctrine of the nature of legal person is not based on separate property liabilities. The German Civil Code has granted legal capacity to certain partnerships of no separate property liabilities, and legal positivism plays a crucial role in acquiring legal capacity through registration. Consequently, unincorporated organizations registered in legal types, despite having no separate property liability, should be granted legal capacity by the legislature as statutory civil subjects. |
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