13.4 合作社
13.4 Co-operative Societies
合作社是股份制公司的一种。即便名称叫做"合作社",它依然是一家公司。它指的是一群人之间的合伙参与,他们相互约定,依据各自的经营活动结合在一起。
A Co-operative is one kind of share stock company. It is a company even if called a Co-operative. It means participation between a group of people who agree amongst themselves to associate according to their individual activities.
合作社起源于以帮助其成员或保障其既定经济利益为目的的通常商业形式。因此,合作社作为一个在权利和义务方面的法人团体,与那些并非以经济为导向的其他合作社有所不同。合作社致力于增加其成员的利益,而非他人的利益,这一点要求其经济活动与每位成员的经济活动(即商业活动)之间建立紧密的联系。
The Co-operative originates in the usual trading form aiming to help its members or to secure their defined economical interests. Thus the Cooperative is a corporate body regarding rights and duties, although it differs from the other Co-operatives which are not economically oriented. The Co-operative works to increase the profit of its members, not the interests of others, a matter that requires establishing a strong linkage between its economic activity and the economic activity (i.e. business) of each of its members.
合作社由至少三名、至多七名或更多成员组成,人数不得少于三人。合作社可分为两种类型:一种是设有确定股份的公司,公司中的任何人只要认购股份,即可被视为合伙人;另一种是不设确定股份的公司,加入该公司须通过缴纳在年度大会上决定的年费来实现。
A Co-operative is formed between as many as seven or more members or as few as three, but cannot be less than that. Co-operatives may be of two types: One is a company with established shares where any person in the company may be considered a partner by virtue of acquiring shares. The second is a company with no established shares, where joining the company is achieved through paying an annual fee decided at the annual general meeting.
合作社中必须满足五个条件:
Five conditions must be fulfilled in the Co-operative:
第一:加入合作社的自由。认购对所有人开放,条件与此前成员所适用的条件相同。 合作社的法规、限制和保留条款同样适用于新成员,无论这些法规是地方性的(例如适用于某村庄居民的规定),还是职业性的(例如适用于理发师的规定,以此为例)。
Firstly: Freedom of joining the Co-operative. Subscription stays open for everybody, according to the same conditions that applied for preceding members.Where the Co-operative laws, limits and reservations are applied on the new members, whether these laws were of a local nature like those for the people of a village, or they were of professional nature like those for Barbers (Hairdressers) as an example.
其次:合作社成员享有平等的权利,尤其是投票权,因此每位成员各有一票。
Secondly: Co-operative members have equal rights, particularly the right of voting, thus every member is given one vote.
第三:股份享有约定的利润。合作社向其常任股东支付一定的利润,前提是公司的利润允许。
Thirdly: A specified profit is assigned for the shares. The Co-operative pays to its permanent shareholders a certain profit, provided the profits of the company allow.
第四:投资的盈余利润应予返还,即将净利润按照成员在合作社所进行的交易比例进行分配,例如购买商品或使用合作社的设施与服务。
Fourthly: The surplus profits of the investment are repaid, where the net profits are distributed amongst the members in proportion to the transactions they carried out with the Co-operative, such as purchases or use of the utilities and facilities of the Co-operative.
第五:必须通过计入储备金来设立一项合作基金。
Fifthly: A Co-operative fund must be formed by crediting the reserve funds.
合作社的管理权力机构,负责运营合作社并开展其活动,是在年度股东大会上选出、由股东组成的董事会。每位股东不论持有多少股份,都拥有一票表决权。因此,持有一百股的股东与持有一股的股东并无区别,二者在选举董事时各投一票。
The authority which runs the Co-operative through its management and carries out its activity is the board of directors elected at the annual general meeting and formed from the shareholders, where every shareholder has a vote irrespective of the number of his shares. So one with one hundred shares is no different from a shareholder with one share, and each of them has one vote in electing the directors.
合作社有多种类型,例如职业合作社、消费合作社、农业合作社和生产合作社。总体而言,这些合作社要么是消费合作社,利润按购买量分配;要么是生产合作社,利润按产量分配。
Co-operatives are of many kinds, like professional Co-operatives, the consumer Co-operatives, agricultural Co-operatives, and production Cooperatives. These Co-operatives, as a whole, are either consumer Cooperatives, where profits are divided according to purchases, or production Co-operatives, where the profit is divided according to the production.
这段内容描述的是合作社(Co-operatives),根据以下理由,它们是无效的,并且与伊斯兰教的规定相矛盾:
This describes the Co-operatives, which are invalid and contradict the rules of Islam according to the following:
1. 合作社是一家公司,因此,要使其有效,它必须满足伊斯兰教法(Shar'a)规定的公司条件。在伊斯兰教中,公司是两个或两个以上的人之间的一种契约,他们约定经营一个经济项目,以获取利润。因此,必须有一个主体,使公司的经营活动由合伙人来进行。换言之,公司要合法,就必须包含一个主体(合伙人),此人在公司中拥有股份。因此,如果公司中不存在既持有股份又实际执行公司所设立之业务的合伙人,那么就不存在公司。若将这些条件应用于合作社,我们会发现它们并非合法有效的公司,因为它们仅建立在财产(资本)之上。它们并不以从事工作的契约为基础;其契约是提供资本并设立一个管理机构来运营其活动(工作)。因此,认购公司的人仅仅通过他们的财产(资本)相互结合;于是,公司并不具有一个主体。据此,合作社并不构成合法的公司,因为它不包含主体。从根本上说,它应被视为不存在,因为公司是一种管理资本的契约,而这一行为需要一个主体。当一家公司没有主体时,从伊斯兰教法的观点看,它便不能成为公司。
1. The Co-operative is a company, so it should fulfil the conditions of a company as stated by the Shar’a in order to be valid. The company in Islam is a contract between two or more persons, in which they agree to run an economic project for the purpose of achieving a profit. Therefore, there must be a body so that the activity of the company is carried out by partners. In other words, the company should include a body (partner) who has a share in the company to be legal. Thus if there did not exist a partner in the company who has shares in it and additionally runs the work which the company was established for, then no company exists. If we apply these conditions to Co-operatives we find that they are not legally valid companies, because they are built upon property (capital) only. They are not based on an agreement to carry out work; the agreement is to provide capital and establish a management that will run its activities (work). Therefore, the people who subscribed to the company only associate together via their properties (capital); thus the company does not have a body. Accordingly, the Co-operative does not represent a legal company, as it does not include a body. It is considered non-existent in the first instance as the company is a contract to manage capital, and this action requires a body. When a company has no body, it fails to be a company from the Shar’a point of view.
2. 此外,按购买量或按产量分配利润,而不是按资本或按工作量分配,是不允许的。如果公司是以资本为基础订立的,那么利润应当由资本决定;如果是以工作为基础订立的,利润也应当由工作决定。因此,利润要么依从资本,要么依从工作,或者两者兼而有之。但约定按购买量或按产量分配利润是不允许的,因为在沙里尔(Shar'a)看来,这与合约的要求相矛盾。凡与合约所要求的内容相抵触、或不符合合约利益的任何条件,都是无效条件(Fasid)。按购买量或按产量分配利润,与合约的要求相抵触,因为在沙里尔看来,合约是针对财产(资本)或工作而订立的,所以利润应当与资本或工作成比例。如果约定按购买量或按产量分配,那便是无效条件(Fasid)。
2. Furthermore, distributing profits proportional to purchases or according to production, rather than relative to the capital or relative to the work is not allowed. If the company was concluded on the basis of capital then the profit should be determined by the capital, and if it was concluded on the basis of work it should also be determined by work. So the profit follows either the capital or the work, or both of them. But to stipulate the distribution of the profit according to purchases or according to production is not allowed, because this contradicts the contract in the opinion of the Shar’a. And every condition that contradicts what is required by the contract or it is not for the interest of the contract, is an invalid condition (Fasid). Distributing the profit according to purchases or according to the production contradicts what is required by the contract, because the contract in the view of the Shar’a, applies upon the property (capital) or the work, so the profit should be in proportion with the capital or the work. If it is stipulated according to purchases, or the production, it would be an invalid (Fasid) condition.