摘要： 受制于《慈善法》的公法优位取向，捐赠人与慈善组织间的民事关系未得到应有关注，捐赠人权利名归而实不至。不仅如此，立基于赠与合同机制厘定捐赠人和慈善组织的法律关系，铸成了切断两者之间持续性关系的制度逻辑，抑制了捐赠人权利的确认和行使。以《民法典》实施为背景，慈善组织治理应当从“权力逻辑”中释放“权利逻辑”，基于捐赠人和慈善组织间捐赠合同的非典型性和不完备性，以信义关系为枢纽对两者间民事关系进行再阐释。未来修改《慈善法》，应采用“权利确认＋行为控制” 双向规范模式，强化捐赠人知情权、重整撤销权、增设变更权、引入归入权。在司法程序中，发挥信义义务的衡平性功能，遏制目前慈善组织治理的乱象，推动慈善事业的健康发展，为第三次分配提供可行的实现机制。

关键词: 慈善组织, 赠与合同, 捐赠合同, 信义义务

Abstract: The public law preference of the Charity Act has led to a neglect of the civil relation between charity and donors, and the donors only have rights in theory but could not fulfill their rights in practice as a result.Furthermore, to determine the legal relationship between the donor and the charitable organization based on the gift contract mechanism has created a system logic that cuts off the continuous relationship between the donor and the charitable organization, which inhibits the recognition and exercise of the rights of the donor.Under the circumstances of the promulgation of the Civil Code, the governance of charitable organization shall release “the logic of right” from “the logic of power”, taking the fiduciary relationship as the pivot to reshape the legal relationship between the charity and the donors based on the incompleteness feature of the contract between them.The future amendments to the Charity Act should adopt a two-way normative model of “right confirmation plus behavior control”, strengthen the donors' right to know, reform their right of revocation and add the right to inclusion.Fiduciary duty should play an equitable role of significantly correcting the current messy situation of charitable organizations in judicial proceedings so as to promote the healthy development of charity and to provide a feasible implementation mechanism for the third-round allocation.

Key words: Charitable Organization, Contract of Gift, Donation Contract, Fiduciary Duty