有限合伙中债权人权益保护研究
发布时间：2018-08-09 12:25
【摘要】： 有限合伙作为国外先进的法律制度引入我国,我国新的《合伙企业法》虽然在立法上将这个制度固定下来,但是却忽略了有限合伙制度中对合伙企业外部债权人的保护。要找到有限合伙企业和债权人权益的衡平点,我们在制度构建完善上的道路还任重而道远。本文就是针对我国新的《合伙企业法》中,对合伙企业外部债权人保护的不足,提出些许建议,以完善有限合伙制度。 本文分为四个部分: 第一部分以有限合伙的起源、概念以及法律特征等基础理论为铺垫,主要论述了有限合伙债权人保护的必要性。有限合伙起源于欧洲中世纪的康曼达(commenda)组织,后来,又逐渐演变为一种新型的商业经营方式,即康孟达契约。大约在15、16世纪,资金的提供者(Commendator)向管理者投资,不参与经营,并且他不对投资以外的债务承担任何责任,而管理者((Commendatarii)则从事经营,并以个人财产对经营所欠债务承担无限连带责任,实质为今天的有限合伙。有限合伙的概念可以表述为:有限合伙是指二人以上以合伙协议为基础,经依法核准登记注册、至少一人对合伙的债务承担无限责任与至少一人对合伙的债务承担有限责任的营利性组织。其中,仅以出资为限对合伙债务负责的人为有限合伙人,对合伙债务负无限责任的人为普通合伙人。其主要法律特征表现为:设立、变更程序的严格性;主体范围的广泛性;责任承担形式的二元性;合伙兼具人合性与资合性,且偏重于人合性;对普通合伙而言,有限合伙更具有实体特征。 第二部分则是横向比较,简要介绍了国外有限合伙债权人保护的立法规制情况。在法国,有限合伙的制度为1673年法国商业法所承认,有限合伙的制度在两合公司中出现。《法国商事公司法》第23条规定:“两合公司的无限责任股东具有合股公司股东的地位。有限责任股东只以其出资额为限对公司债务承担责任。有限责任股东不得以技艺出资。”德国早在16世纪就通过立法确认了有限合伙制度。有限合伙的制度与法国一样也隐含在两合公司中,德国立法者将其纳入1897《德国商法典》予以规定。德国商法典第2章第161条规定了两合公司的概念,其由无限责任股东(普通合伙人)和有限责任股东(有限合伙人)在一个共同商号下组成,在股东中的一个或数人对公司债权人的责任限于一定的财产出资的数额,即有限责任股东。而股东中其他人、无限责任股东的责任不受限制的公司。在日本,有限合伙的制度体现在日本商法第3章中,它是以两合公司的形式出现的。日本商法第三章第146条至164条规定的两合公司中要求公司章程中记明股东所负的责任(149条),同样规定“有限责任股东只能以金钱或其他财产作为其出资标的”(150条)且“有限责任股东不得执行公司业务或代表公司”。又有将日本商法上的“两合公司”译作“合资公司”的,“合资公司”是由无限责任社员和有限责任社员组成的公司,即在无限责任社员经营的事业中,有限责任社员提供资本,并参与该事业产生的利益分配这样一种企业形态。各社员的责任是有限还是无限,必须在章程中记载并登记。” 第三部分对比国外的有限合伙制度,主要从现实方面和法律层面上来对我国有限合伙债权人保护现状,进行实证分析。力求找到诸多不足之处以便完善。新的《合伙企业法》出台之前,我国尚没有任何一部法律对“有限合伙”制度有规定。部分司法解释对“有限合伙”的规定也含糊不清,地方法规和规章方面,也只是极少数地区对“有限合伙”有所提及。比如说1993年的《深圳经济特区合伙条例》、2000年的《中关村科技园区条例》、2001年的《深圳经济特区高新技术产业园区条例》中,也仅是对“有限合伙”有片字之提。 2006年8月27日新《合伙企业法》用了二十四个条文将“有限合伙”制度正式引入了中国法律系统当中。我们在看到我国法制取得巨大进步的同时,也应该敏锐洞悉出其中存在的问题以及我们在“有限合伙”债权人保护制度上的任重道远。其中最为主要的问题是如下几点:未区分两种出资的性质和宗旨;有限责任与无限责任的界限及转化设计存在缺陷;有限合伙人与普通合伙人的转换制度设计存在缺陷。 第四部分就是针对第三部分论述的我国立法的不足,找到有限合伙制度完善的策略。首先是我国有限合伙资本制度的立法与完善。这其中便是涉及到完善出资制度的构建和有限合伙出资变更制度的完善。其次是有限合伙中有限合伙与普通合伙转换的立法与完善。这部分主要完善有限合伙人的有限责任制度设计和完善有限合伙人与普通合伙人的转换制度。最后需要强调的是有限合伙信息披露制度的立法与完善。
[Abstract]:Limited partnership is introduced into China as a foreign advanced legal system. Although the new "partnership law" in our country has fixed this system in legislation, it neglects the protection of the external creditors of the partnership enterprise in the limited partnership system. To find the equity of the limited partnership and the creditor's rights and interests, we have built and perfected the system. In this paper, some suggestions are put forward to improve the limited partnership system in the new partnership law of China.
This article is divided into four parts:
The first part paves the way for the basic theory of the origin, concept and legal characteristics of the limited partnership. It mainly discusses the necessity of the limited partnership creditor protection. The limited partnership originated from the COMMENDA organization in the middle ages of Europe, and then gradually evolved into a new type of business operation, namely, the Concord Meng Da contract. About 15,16 In the century, the provider of money (Commendator) invests to the manager, does not take part in the operation, and does not take any responsibility for the debt outside the investment, and the manager (Commendatarii) is engaged in business and assumes unlimited joint liability for the debts owed to the business with the personal property. The concept of the limited partnership can be expressed in the form of the limited partnership. A limited partnership refers to a for-profit organization, on the basis of a partnership agreement, at least one person and at least one person responsible for the debt of the partnership and at least one person with limited liability for the debt of the partnership. Among them, the limited partner who is responsible for the partnership only with the Limited capital contribution is limited to the partnership debt. The main legal characteristics of unlimited liability are as follows: setting up, the rigor of changing procedures; the extensiveness of the subject scope; the two element of the form of responsibility; the partnership and the joint nature, and the nature of the human nature; for the general partnership, the limited partnership is more substantive.
The second part is a horizontal comparison, briefly introducing the legislative regulation of the protection of the limited partnership creditors abroad. In France, the limited partnership system is recognized by the French commercial law in 1673. The limited partnership system appears in the two companies. < French Business Corporation Law > twenty-third rules: "the unlimited liability shareholders of the two companies have joint shares." The position of the shareholders of a company. The limited shareholder is only responsible for the company's debt limited to the amount of its contribution. The limited liability shareholders may not be funded by the skills. "In sixteenth Century, the limited partnership system was confirmed by the German legislation. The system of limited partnership was also implied in the two public companies, as in France. The German legislator incorporated it into the 1897< morality. The second chapter of the German Commercial Code stipulates the concept of a dual company, which is composed of an unlimited liability shareholder (general partner) and limited partner (limited partner) in a common business. One or more of the shareholders' liability to the creditor's creditor is limited to a certain amount of property invested, that is, In Japan, the system of limited partnership is embodied in the third chapter of the Japanese commercial law, which appears in the form of two companies. The third chapters of the Japanese commercial law, 146th to 164, require that the liability of the shareholders be noted in the articles of association of the company. (149), the same stipulates that "limited liability shareholders can only use money or other property as their capital contribution" (150) and "limited liability shareholders may not perform company business or representative company". The "joint company" of "two companies" on the Japanese commercial law is translated into "joint venture company", "joint venture" is an unlimited liability member and limited A company composed of responsible members is a company that provides capital for limited liability members in the cause of unlimited liability members and is involved in the distribution of interests produced by the cause. The responsibilities of the members are limited or unlimited, and must be recorded and registered in the articles of association. "
The third part compares the limited partnership system in foreign countries, and makes an empirical analysis on the current situation of the protection of the limited partnership creditors in our country, and tries to find out a number of shortcomings to improve it. Before the new partnership law was introduced, there is no law in our country to stipulate the "limited partnership" system. Some judicial interpretations are vague on the provisions of "limited partnership", and local regulations and regulations are only mentioned in a few areas of limited partnership. For example, in 1993, the Shenzhen Special Economic Zone partnership Ordinance, the Zhongguancun Science Park Ordinance in 2000, and the Shenzhen Special Economic Zone high tech Industrial Park in 2001 In addition, there are only a few words about "limited partnership".
In August 27, 2006, the new "partnership law" used twenty-four articles to formally introduce the "limited partnership" system into the Chinese legal system. While we have seen great progress in our country's legal system, we should also have a sharp insight into the existing problems and the long way to go in our "limited partnership" creditor protection system. The most important problem is the following points: the nature and purpose of the two types of investment are not distinguished; the limits of the limited liability and the unlimited liability and the transformation design are defective; the design of the transformation system of the limited partner and the general partner is defective.
The fourth part is to find out the deficiency of our country's legislation in the third part, and find the perfect strategy of the limited partnership system. First, the legislation and perfection of the limited partnership capital system in our country. This is about the construction of the perfect capital investment system and the perfection of the limited partnership investment change system. Secondly, limited partnership and limited partnership and the limited partnership and the limited partnership and the limited partnership and the limited partnership and the limited partnership and the limited partnership The legislation and perfection of the transformation of common partnership. This part mainly consummates the limited partner's limited liability system design and consummate the transformation system of limited partner and general partner. Finally, it needs to emphasize the legislation and perfection of the information disclosure system of limited partnership.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.291.91
本文编号：2174064
[Abstract]:Limited partnership is introduced into China as a foreign advanced legal system. Although the new "partnership law" in our country has fixed this system in legislation, it neglects the protection of the external creditors of the partnership enterprise in the limited partnership system. To find the equity of the limited partnership and the creditor's rights and interests, we have built and perfected the system. In this paper, some suggestions are put forward to improve the limited partnership system in the new partnership law of China.
This article is divided into four parts:
The first part paves the way for the basic theory of the origin, concept and legal characteristics of the limited partnership. It mainly discusses the necessity of the limited partnership creditor protection. The limited partnership originated from the COMMENDA organization in the middle ages of Europe, and then gradually evolved into a new type of business operation, namely, the Concord Meng Da contract. About 15,16 In the century, the provider of money (Commendator) invests to the manager, does not take part in the operation, and does not take any responsibility for the debt outside the investment, and the manager (Commendatarii) is engaged in business and assumes unlimited joint liability for the debts owed to the business with the personal property. The concept of the limited partnership can be expressed in the form of the limited partnership. A limited partnership refers to a for-profit organization, on the basis of a partnership agreement, at least one person and at least one person responsible for the debt of the partnership and at least one person with limited liability for the debt of the partnership. Among them, the limited partner who is responsible for the partnership only with the Limited capital contribution is limited to the partnership debt. The main legal characteristics of unlimited liability are as follows: setting up, the rigor of changing procedures; the extensiveness of the subject scope; the two element of the form of responsibility; the partnership and the joint nature, and the nature of the human nature; for the general partnership, the limited partnership is more substantive.
The second part is a horizontal comparison, briefly introducing the legislative regulation of the protection of the limited partnership creditors abroad. In France, the limited partnership system is recognized by the French commercial law in 1673. The limited partnership system appears in the two companies. < French Business Corporation Law > twenty-third rules: "the unlimited liability shareholders of the two companies have joint shares." The position of the shareholders of a company. The limited shareholder is only responsible for the company's debt limited to the amount of its contribution. The limited liability shareholders may not be funded by the skills. "In sixteenth Century, the limited partnership system was confirmed by the German legislation. The system of limited partnership was also implied in the two public companies, as in France. The German legislator incorporated it into the 1897< morality. The second chapter of the German Commercial Code stipulates the concept of a dual company, which is composed of an unlimited liability shareholder (general partner) and limited partner (limited partner) in a common business. One or more of the shareholders' liability to the creditor's creditor is limited to a certain amount of property invested, that is, In Japan, the system of limited partnership is embodied in the third chapter of the Japanese commercial law, which appears in the form of two companies. The third chapters of the Japanese commercial law, 146th to 164, require that the liability of the shareholders be noted in the articles of association of the company. (149), the same stipulates that "limited liability shareholders can only use money or other property as their capital contribution" (150) and "limited liability shareholders may not perform company business or representative company". The "joint company" of "two companies" on the Japanese commercial law is translated into "joint venture company", "joint venture" is an unlimited liability member and limited A company composed of responsible members is a company that provides capital for limited liability members in the cause of unlimited liability members and is involved in the distribution of interests produced by the cause. The responsibilities of the members are limited or unlimited, and must be recorded and registered in the articles of association. "
The third part compares the limited partnership system in foreign countries, and makes an empirical analysis on the current situation of the protection of the limited partnership creditors in our country, and tries to find out a number of shortcomings to improve it. Before the new partnership law was introduced, there is no law in our country to stipulate the "limited partnership" system. Some judicial interpretations are vague on the provisions of "limited partnership", and local regulations and regulations are only mentioned in a few areas of limited partnership. For example, in 1993, the Shenzhen Special Economic Zone partnership Ordinance, the Zhongguancun Science Park Ordinance in 2000, and the Shenzhen Special Economic Zone high tech Industrial Park in 2001 In addition, there are only a few words about "limited partnership".
In August 27, 2006, the new "partnership law" used twenty-four articles to formally introduce the "limited partnership" system into the Chinese legal system. While we have seen great progress in our country's legal system, we should also have a sharp insight into the existing problems and the long way to go in our "limited partnership" creditor protection system. The most important problem is the following points: the nature and purpose of the two types of investment are not distinguished; the limits of the limited liability and the unlimited liability and the transformation design are defective; the design of the transformation system of the limited partner and the general partner is defective.
The fourth part is to find out the deficiency of our country's legislation in the third part, and find the perfect strategy of the limited partnership system. First, the legislation and perfection of the limited partnership capital system in our country. This is about the construction of the perfect capital investment system and the perfection of the limited partnership investment change system. Secondly, limited partnership and limited partnership and the limited partnership and the limited partnership and the limited partnership and the limited partnership and the limited partnership and the limited partnership The legislation and perfection of the transformation of common partnership. This part mainly consummates the limited partner's limited liability system design and consummate the transformation system of limited partner and general partner. Finally, it needs to emphasize the legislation and perfection of the information disclosure system of limited partnership.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.291.91
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