试论隐名合伙的性质及立法模式
发布时间：2018-10-12 09:02
【摘要】：隐名合伙是现代民商法中一项重要的法律制度,对西方国家的经济发展起到了良好的促进作用。大陆法系许多国家和地区的民商法都对此作了专门的规定。正如有学者所说,有关隐名合伙的问题,在外国法学界中是个陈旧的话题,甚至是一个没有讨论意义或研究价值的问题。然而我国社会生活中存在着隐名合伙现象,但法律尚未提供规范。由于缺少必要的法律调节,隐名合伙这种法律关系的性质含混不清,导致司法机关处理这类纠纷时无法可依,随意性很大,这严重影响了我国司法的统一性和权威性。本文结合我国立法和社会生活现状,通过对隐名合伙相关问题的探讨,论述了我国确立隐名合伙制度的必要性,并对我国立法如何构建隐名合伙的立法模式阐述了自己的一些想法。 论文共分四个部分: 第一部分为隐名合伙的性质与特征。该部分是本文的核心。这一部分主要包括隐名合伙的概念及法律特征、隐名合伙的法律性质以及隐名合伙与相关概念(制度)之比较三方面内容。第一,在隐名合伙的概念及法律特征中,笔者主要对隐名合伙的概念和法律特征进行界定和分析。第二,在隐名合伙的法律性质中,笔者看到近现代各国的民商事立法均未对隐名合伙的性质予以界定,各国立法在编排体例上的不同也表现出对隐名合伙性质问题的不同认识。但是我们仍然可以从各国有关隐名合伙的立法例上探求各国立法的本意,即隐名合伙究其本质是隐名合伙人与出名营业人之间的一种内部合同关系。对于隐名合伙的非团体性与契约性,各国学说也多有共识。第三,隐名合伙与相关概念(制度)之比较。隐名合伙作为一种特殊形式的合伙,有别于普通合伙、消费借贷、两合公司、雇佣合同、临时合伙、有限合伙,但与它们又存在相似之处,易引起混淆,因此,对它们加以辨析是必要的。 第二部分是隐名合伙制度的价值分析。这一部分主要包括两部分内容:关于建立隐名合伙制度的争论和建立隐名合伙制度的利弊分析。第一,在建立隐名合伙制度的争论中,笔者详细列举了针对建立隐名合伙制度赞成者和反对者的观点。第二,在建立隐名合伙制度的利弊分析中,笔者探讨了建立隐名合伙制度的必要性,并在此基础上,针对反对者的论点予以深入分析,最后指出我国有必要在立法上承认隐名合伙制度,但必须辅之以行之有效的措施,从而消除隐名合伙的不利因素。
[Abstract]:Anonymous partnership is an important legal system in modern civil and commercial law, which plays a good role in promoting the economic development of western countries. Civil and commercial laws in many countries and regions of the continental law system have made special provisions on this. As some scholars have said, the issue of dormant partnership is an old topic in foreign legal circles, even a question of no significance or research value. However, there is a hidden partnership phenomenon in our social life, but the law has not yet provided norms. Due to the lack of necessary legal regulation, the nature of the legal relationship of anonymous partnership is ambiguous, which leads to the judicial organs can not deal with this kind of disputes, arbitrary, which seriously affects the unity and authority of our country's judicature. Based on the current situation of legislation and social life in our country, this paper discusses the necessity of establishing the system of dormant partnership in China through the discussion of the problems related to dormant partnership. It also expounds some thoughts on how to construct the legislative model of secret partnership in our country. The thesis is divided into four parts: the first part is the nature and characteristics of anonymous partnership. This part is the core of this paper. This part mainly includes the concept and legal characteristics of dormant partnership, the legal nature of dormant partnership and the comparison between anonymous partnership and related concepts (system). First, in the concept and legal characteristics of dormant partnership, the author mainly defines and analyzes the concept and legal characteristics of dormant partnership. Secondly, in the legal nature of dormant partnership, the author finds that the civil and commercial legislation of modern countries has not defined the nature of dormant partnership, and the different legislations in different countries also show different understanding of the nature of dormant partnership. However, we can still find out the original intention of the legislation from the legislations of various countries, that is, the hidden partnership is a kind of internal contract relationship between the dormant partner and the famous business owner. There is also consensus in many countries about the non-group and contractual nature of anonymous partnerships. Thirdly, the comparison between anonymous partnership and related concepts (system). Anonymous partnerships, as a special form of partnership, are different from ordinary partnerships, consumer lending, two companies, employment contracts, temporary partnerships, limited partnerships, but there are similarities with them, which are liable to cause confusion. It is necessary to discriminate them. The second part is the value analysis of dormant partnership system. This part mainly includes two parts: the argument about establishing the anonymous partnership system and the analysis of the advantages and disadvantages of establishing the hidden partnership system. First, in the argument of establishing anonymous partnership system, the author enumerates the views of proponents and opponents of establishing anonymous partnership system in detail. Secondly, in the analysis of the advantages and disadvantages of establishing the dormant partnership system, the author probes into the necessity of establishing the dormant partnership system, and on this basis, analyzes the arguments of the opponents in depth. Finally, it is pointed out that it is necessary for our country to recognize the system of dormant partnership in legislation, but it must be supplemented by effective measures to eliminate the unfavorable factors of dormant partnership.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D923
本文编号：2265552
[Abstract]:Anonymous partnership is an important legal system in modern civil and commercial law, which plays a good role in promoting the economic development of western countries. Civil and commercial laws in many countries and regions of the continental law system have made special provisions on this. As some scholars have said, the issue of dormant partnership is an old topic in foreign legal circles, even a question of no significance or research value. However, there is a hidden partnership phenomenon in our social life, but the law has not yet provided norms. Due to the lack of necessary legal regulation, the nature of the legal relationship of anonymous partnership is ambiguous, which leads to the judicial organs can not deal with this kind of disputes, arbitrary, which seriously affects the unity and authority of our country's judicature. Based on the current situation of legislation and social life in our country, this paper discusses the necessity of establishing the system of dormant partnership in China through the discussion of the problems related to dormant partnership. It also expounds some thoughts on how to construct the legislative model of secret partnership in our country. The thesis is divided into four parts: the first part is the nature and characteristics of anonymous partnership. This part is the core of this paper. This part mainly includes the concept and legal characteristics of dormant partnership, the legal nature of dormant partnership and the comparison between anonymous partnership and related concepts (system). First, in the concept and legal characteristics of dormant partnership, the author mainly defines and analyzes the concept and legal characteristics of dormant partnership. Secondly, in the legal nature of dormant partnership, the author finds that the civil and commercial legislation of modern countries has not defined the nature of dormant partnership, and the different legislations in different countries also show different understanding of the nature of dormant partnership. However, we can still find out the original intention of the legislation from the legislations of various countries, that is, the hidden partnership is a kind of internal contract relationship between the dormant partner and the famous business owner. There is also consensus in many countries about the non-group and contractual nature of anonymous partnerships. Thirdly, the comparison between anonymous partnership and related concepts (system). Anonymous partnerships, as a special form of partnership, are different from ordinary partnerships, consumer lending, two companies, employment contracts, temporary partnerships, limited partnerships, but there are similarities with them, which are liable to cause confusion. It is necessary to discriminate them. The second part is the value analysis of dormant partnership system. This part mainly includes two parts: the argument about establishing the anonymous partnership system and the analysis of the advantages and disadvantages of establishing the hidden partnership system. First, in the argument of establishing anonymous partnership system, the author enumerates the views of proponents and opponents of establishing anonymous partnership system in detail. Secondly, in the analysis of the advantages and disadvantages of establishing the dormant partnership system, the author probes into the necessity of establishing the dormant partnership system, and on this basis, analyzes the arguments of the opponents in depth. Finally, it is pointed out that it is necessary for our country to recognize the system of dormant partnership in legislation, but it must be supplemented by effective measures to eliminate the unfavorable factors of dormant partnership.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D923
【引证文献】
相关硕士学位论文 前2条
1 种记超;隐名合伙研究[D];山东大学;2011年
2 张伟刚;隐名合伙及中国的构建路径[D];兰州大学;2012年
，本文编号：2265552
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