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当慈善财产无法按照捐赠人意愿得以使用时,如何既不违背捐赠人意愿,又能充分发挥慈善财产的公益效用是慈善立法必须考量并解决的问题。慈善信托近似原则在美国经历了被拒绝、被认可、进一步拓展的不同阶段,其在美国的新发展表现出相关立法日益融合、捐赠人意愿优先保障、尽可能发挥慈善财产公益效用等特点。事实表明,解决此类问题的关键是实现捐赠人意愿与公共利益之间的动态平衡。而我国当前立法尚存在近似原则界定不明、相关规定不够全面周延、适用程序不够中立灵活等问题。我国应该利用慈善事业基本法制定的契机,辩证地吸收美国经验,以达到落实捐赠人意愿与发挥慈善财产的公益效用之间平衡的最佳效果。
When the charity property can not be used according to the wishes of the donor, how to give full play to the public welfare utility of the charity property is a problem which the charity legislation must consider and solve without violating the wishes of the donor. The approximate principle of charitable trust has experienced different stages of denial, recognition and further expansion in the United States. Its new developments in the United States show that the relevant legislation is increasingly integrated, the donor’s will is given priority to protection, and the charity’s public benefit is utilized as much as possible. Facts show that the key to solving such problems is to achieve a dynamic balance between donor wishes and the public interest. However, the current legislation in our country still has some problems such as the unclear definition of the approximate principle, the lack of comprehensive and comprehensive application of the relevant provisions and the lack of neutrality and adaptability of the application procedures. China should make use of the opportunity set by the Basic Law of Charities and dialectically absorb the experience of the United States in order to achieve the best balance between the fulfillment of the wishes of donors and the public welfare utility of charity property.