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我国《慈善法》认为慈善信托属于公益信托,但这一观点却不能解决理论上的疑问与现实中的困惑。因此,应当考虑构建私益性慈善信托。其原因在于:从理论的层面上进行多角度的考察,发现慈善与公益的关系并非属于与被属于,而应当是一种交叉关系;既存在着与公益交叉而有的公益性慈善,也当存在着不与公益交叉而有的私益性慈善;从解决现实问题的角度出发,善款余额归属在传统民法下无法得到有效的解决,其归属纠纷也可以适用私益性慈善信托得到解决。
China’s “Charity Law” that charitable trusts belong to charitable trust, but this view can not solve the theoretical doubt and the reality of confusion. Therefore, we should consider building a private charitable trust. The reason is that: from a theoretical perspective, it is found that the relationship between charity and public welfare does not belong to and belongs to but should be a kind of cross-cutting relationship. There exist not only charitable charities that intersect with public welfare but also There are some private charities that do not cross the public interest. From the perspective of solving practical problems, the ownership of the charity payment can not be effectively solved under the traditional civil law. The ownership dispute can also be solved by the private charity trust.