公立高校法人制度的双界性：法源、问题与治理

The Dual Character of Legal Person System in Public HEIs: Source%2C Problems and Governance

建立和完善中国特色的现代大学制度必须确立和坚持法人化治理结构。法人化既使我公立高校获得了公权主体身份，也使其具有了相对独立的私权主体资格。公立高校法人明显地具有机关法人色彩，同时也具有我国《民法通则》所规定的民事法人特质。高校法人的双界性导致了法人治理结构内外部的制衡与保障机制并未得到建立与遵守，公立高校的公益性没有得到准确、有效的发挥。因此，我们需要秉持“良法”与“善治”的精神，建立以学术权力和教育权力为主体的高校法人治理结构。

In China， the legal person status of a public higher education institution is based on the Education Law of the People's Republic of China， the Higher Education Law of the People's Republic of China and other administrative statutes. It is also based on civil law， especially the General Principles of the Civil Law. It's difficult to find the corresponding position with ＂institutional legal person＂ according to the civil law of traditional classification system. To establish and enhance the modern university system with Chinese characteristics，it is imperative to establish and adhere to the ＂corporatization＂ of modern university system. ＂Corporatization＂ not only entitles public higher education institutions with public rights，but also with relatively independent private rights. The legal person status of a public higher education institution is featured by both civil legal person and institutional legal person. In the spirit of benign law and good governance， the establishment of the legal person system in public higher education institutions should be centered upon academic power and educational right.