Limited Partnership Act of the U.S. partner of fiduciary duty

【Keywords: thesis partner limited partnership fiduciary duties
【Abstract】 venture capital limited partnership is a prevailing form of organization in the United States has established a relatively complete legal system, China is currently working on the legislative work of the limited partnership in 2001 the third revision of the U.S. Uniform Limited Partnership Act, the provisions of which should be our reference. According to this new Uniform Limited Partnership Act, the general partner and other partners of the partnership owes fiduciary duties and a limited partner assumes a fiduciary duty.

With the development of risk investment, venture capital limited partnership, and for promoting the important role of SMEs has been growing awareness of domestic scholars, seek to amend the existing Laws, the introduction of a limited partnership regime is also increasingly the voice of high. It is learned. NPC Financial and Economic Committee of China hosted the "SME Promotion Law, Partnership Enterprise Law and the draft revision of the International Conference" has been proposed to write a limited partnership partnership Law. U.S. limited partnership has also established a relatively perfect system. Especially in the United States in 2001, once again Uniform Limited Partnership Act was amended. Learn which specific provisions. The revision of our country that would be useful. Space is limited. This involves only the new Uniform Limited Partnership Act partner fiduciary duties on this specific issue.

An overview of
is a limited partnership means a limited partner and general partner of a partnership composed of the former extent of the amount of its limited partnership investment responsibility. The latter partnership debts jointly and severally liable. Its formation in the Middle Ages produced Kang Manda Contract (Commenda). The late 19th century. This system spread to Britain and the U.S.. New York State in 1822 on the development of the first limited partnership Law. With 后康内狄克 state and Pennsylvania, Virginia and other states have also developed their own limited partnership law. 2O Century. In the drawing, France, Germany and other countries of the two prevailing system based on the combined company. United States Commission on Uniform State Law (NCCUSL hereinafter referred to as the Committee) in 1916 developed the first Uniform Limited Partnership Act. Subsequently widely adopted by U.S. states. But with the Economic prosperity and national tax policy changes, to the sixties and seventies, the limited partnership has been widely used in some large-scale investment projects. Become a tool for legitimate tax avoidance. This is the formulation of the 1916 Act did not anticipate. To this end, the Law Commission in 1976 conducted the first comprehensive revision. And later again in 1985 to make changes. However. In 1985, after the Uniform Limited Partnership Act. Uniform Partnership Act in 1994 carried out a comprehensive revision. In fact developed a new "Uniform Partnership Act.) In contrast, the 1985 Uniform Limited Partnership Act is outdated. So. In order to be able Uniform Limited Partnership Act and the new partner wears uniform convergence, Uniform State Law Commission in 2001 launched the new Uniform Limited Partnership Act.

In the 2001 Uniform Limited Partnership Act. One problem has been concern that a partner's fiduciary duty is the issue. Fiduciary duties is based on the fiduciary relationship created. The fiduciary relationship is formed based on party agreement. When one party (the principal) to own property to the other party (the fiduciary) to manage, while he had only the right to retain the benefit of the property when the. Between the two sides had a fiduciary relationship. After the formation of this relationship, fiduciary party in a dominant position on. In fact the property has the mercy of others and control. Fiduciary behavior and the principal will have binding force; However fiduciary how to exercise their rights. Client is not able to fully control or monitor closely. They only have a fiduciary trust. I believe they will in good faith and due diligence by way of the best interests of their own behavior. Therefore, the essence of a fiduciary relationship is not reciprocal trading relationship. Beneficiaries of their own strength alone is difficult to act on the fiduciary to exercise effective supervision and regulation, in a weak position to protect the interests of the beneficiaries, in order to prevent abuse of fiduciary relationship of trust to protect both parties, the law requires a fiduciary to be the beneficiary (or trustee) to take the corresponding legal obligations. The core is: "as long as the delegated fiduciary trust. It must go all out for others interests, without any deception; once influential, it is not greedy, calculating and selfish; Once you've mastered the individual control means limited to these means to be an honest purpose. " This fiduciary relationship based on the legal obligations arising from what we call faith obligations. Famous in American history in 1928, Justice Cardozo's Meinhardv. Salmon case, pointed out: "Both parties as partners. Should bear the fiduciary responsibility of a partner. This has been a consensus. ... ... A joint venture between the parties as partners. As long as the existence of the business day. With each other to bear the highest The duty of loyalty. "

II Uniform Limited Partnership Act 2001, specific provisions
1, and the Uniform Limited Partnership Act 1985, the difference between
1985 years of Uniform Limited Partnership Act for the obligations of limited partners do not be clearly defined. The latest Uniform Limited Partnership Act in the 305 a paragraph and paragraph b were clearly defined. The obligations of general partner for the latest Uniform Limited Partnership Law of 1994 completely absorbed the provisions of Uniform Partnership Act, and the 1985 Uniform Limited Partnership Act was adopted 1914 Uniform Partnership Act.

According to the 2001 Uniform Limited Partnership Act. Partner fiduciary duties owed to the range depends on the partner is a general partner. Or limited partners. The law. General partners and limited partners, respectively, referring to the limited partnership agreement as specified in the general partners and limited partners. Therefore, the general partners and limited partners is not based on the distinction between the role of each of the different, but determined by the partnership agreement. In other words. A partner's rights and obligations from his role - general partner or limited partner decision, rather than by his role - such as actual participation in certain circumstances to decide how much control.

The same time. 2001 Uniform Limited Partnership Act Uniform Partnership Act adopted approach. Even if the grant agreement provisions in the partnership agreement, limited partners specified in the actual operation and management of partnership rights. The limited partner remains a limited partner. Continues to act as a limited partner of the obligations, will not be involved in business management and change his obligations. Similarly, if the partnership agreement the general partner listed only under the agreement have very limited administrative rights, he was still a general partner. Still have to bear the general partner's fiduciary duties shall be liable.

2, the specific content of
As for specific provisions. Although the Uniform Partnership Act of 1994 on the fiduciary duties and obligations of good faith fair trade caused the most controversy, but still copy the Uniform Limited Partnership Act provisions of the Uniform Partnership Act, 2001 408 Uniform Limited Partnership Act and the provisions can be said Uniform Partnership Act the provisions of section 4O4 same.

Under the law, general partner of the limited partnership and other partners bear faithful and attention (1oyaltyandco, rIe) of fiduciary duty. In the course of the exercise of the right to bear also the obligations of good faith and fair dealing. The obligations of limited partners. Required is very simple: a limited partner of the partnership and other partners do not bear the fiduciary duties, only bears in accordance with the provisions of law and the partnership agreement the obligations of good faith and fair dealing. Uniform Limited Partnership Act does not provide the reason why a limited partner's fiduciary duties because the drafters that the limited partner as a limited partner because of its position in the enterprise role management services is limited. In fact, the drafters of the Uniform Limited Partnership Act of the comments expressed the view: a limited partnership is to build a strong, clear, centralized management system, the investor is negative.

2001 was unified in 408 Limited Partnership Act provisions of paragraph b of the general partner companies and other partners on the duty of loyalty. Including the general partner may not usurp partnership opportunities, not to trade with the partnership, shall not represent a conflict of interest with the partnership of people with business transactions. From the perspective of this provision, although the articles mentioned in the "other partners", but in fact only the partnership itself was protected by the duty of loyalty, because the 408 are the protection of the three listed in a partnership, and does not involve the relationship between the partners. In this way, partners can not under the provisions of paragraph 408 b, to the general partner or ultra vires acts to suppress sexual proceedings.


Despite the provisions of 408-by-word sentence by sentence can be said to copy the Uniform Partnership Act of the provisions of Section 404, but the provisions are fully applicable to the two different situations: Uniform Partnership Act is mainly applied to small, loose partnership. The status of all partners are equal. In the general partnership, unless otherwise agreed, each partner has the right to participate in partnership management. The Uniform Limited Partnership Act is applicable in a centralized management of the partnership, which relies on passive investors, and subject to the enterprise managers. This distinction is crucial, as I said before, one of the weak position of trust and fiduciary duty is the cause. Fiduciary duties in part to protect those who entrust their affairs to others who commissioned the greater the scope of the higher level of trust, the client's ability to protect themselves more weakly, then the law needs to increased fiduciary responsibility. When all partners have equal status when the restrictions might be made compliance with the law, but if a particular partner is a trusted partner, made at this time is likely the same is an unreasonable restriction of the. Thus, some scholars have suggested that in the limited partnership's general partner fiduciary duties should be different from the general partner of general partner fiduciary duties. Links to Research Papers Download http://www.hi138.com
3, the restrictions of the fiduciary duty to change
, of course, the foregoing obligations are implied by law. And the Uniform Partnership Act in 1994 the same. 20o1 Uniform Limited Partnership Act on the partnership agreement allows the above-mentioned provisions of the law changes. The method of this change were the following restrictions: limited partner by the partnership agreement may not exclude it shall bear the obligations of good faith and fair dealing ... ... but to fulfill obligations under the partnership agreement can be judged whether or not, as long as the standard does not have obvious irrationality. As for the general partner to change Uniform Limited Partnership Act and the integrity of the relevant fiduciary duty obligations of fair dealing rights, the Act provides for restrictions on three aspects: first, the partnership agreement shall not preclude the general partner should bear under section 4o8 duty of loyalty; second , a partnership agreement may not unreasonably reduce the 4o8 section c section on the duty of care requirements; Third, the partnership agreement shall not preclude the obligation to honesty and fair dealing ... ... but to fulfill obligations under the partnership agreement or not can be judged. As long as the standard does not have the obvious irrationality.

On this issue. RedwendLimitedPartnershipv. Edwards's case is representative. Has withdrawn from the case is a general partner of a partnership usurpation of partnership opportunities, cases, judges in the Court of Appeal ruling that: "Edwards and the plaintiff asked the defendant there was clearly a fiduciary relationship. Edwards on the plaintiff bears the greatest duty of loyalty , the relationship between the partners allows the defendant bears fiduciary duties, which the defendant can not deceive the plaintiff, even the most minor improper statements or concealment is not OK "I4] case key is to usurp a partner in a partnership opportunity to attempt to withdraw from the partnership agreement to make their actions legal. The case shows that if the partners try to eliminate or mitigate their fiduciary duties, to be honest and clear disclosure.

4, authorized the fiduciary duties of
general partner may make their management authority delegated to one or more limited partners to exercise, or will the partnership agreement may be exercised by the General Partner management authority assigned to one or more limited partners to exercise, in this case, authorization or decentralized actions will be on the obligations of the general partner of the Lutheran influence.

If the general partner the right to authorize the management to a third person. For this problem, Uniform Limited Partnership Act of 2001 is used to solve the traditional way: does not prohibit the General Partner to exercise the right to license to others, but the general partner's obligations do not come to an end. That is. Behavior of the general partner does not relieve the authority or to matters related to the termination of their fiduciary duties owed to, for example, the general partner authorized business "rental manager" responsible for the limited partnership, the daily rental business does not mean that the right of the general partner In the rental market, competition with the partnership.

General partner authorized to act in determining whether a violation of duty of care is a key factor in the time. To this end, the new Uniform Limited Partnership Act specifically following examples illustrate the problem:
limited partnership, the sole general partner of all the important instruments for corporate management, the insurance company received and read the warning letter sent , pointed out that the enterprises under the cover of a building fire in the case of insurance has expired, the partner, or forget to renew the insurance contract. Soon the building was completely destroyed. The partners may be due to a violation of the provisions of paragraph 408 c duty of care and liability (gross negligence). However, if the general partner to the management authority delegated to exercise the company's business manager. The manager forgot to read the warning letter to renew insurance contracts. Led to the building burned down businesses unable to obtain compensation. In such a case, even if the business manager with gross negligence, the general partner should not bear the responsibility of paragraph c 408. Gross negligence because the business manager and can not be attributed to the general partner. C according to the provisions of paragraph 408. General partner is responsible for the general partner is the key in the selection of business managers, the right to authorize a renewal of the contract and authorized business managers to monitor whether there is gross negligence and so on.

The agreement to grant a general partner of a limited partner in this complex situation. 2001 Uniform Limited Partnership Act 408 (the general partner of the general standard of conduct) does not involve re-allocation of management authority, in the 305 (limited partners with limited liability) is just that: limited partners of the partnership and other assumes a fiduciary duty partner. The problem is in the law is dealt with comments that the comments. While the mandate does not relieve the obligations of general partners, but for the requirements of the obligation will be based on the extent and content of authorization to set:
if the partnership agreement does not give a specific permission, general partner, the general partner of the Lutheran obligations required under the remaining general partner of the rights and privileges may be. For example, if the general partner of the partnership agreement to prohibit a specific act, the general partner to comply with the agreement does not constitute a breach of fiduciary duty, but under 408 and 304 on the duty of care obligations to provide information on the general obligations of partners are still providing advice in relation to behavior.

For the limited partners concerned. The criteria to fulfill their obligations or duty of good faith and fair dealing obligation. Fiduciary duties rather than as the cause of fiduciary duty is due to the limited partners, the performance of duties or obligations under the standards of integrity and a person because of their status or role of the interests of others to enjoy an important control of power, and according to Uniform Limited Partnership Act, limited partners for the daily affairs of the limited partnership has only very limited authority. Thus there is no permission to make the limited partner should be for the partnership and other partners bear the fiduciary duty. Partnership agreement may be given to the management of limited partners important rights or powers. However, in this case, the existence of rights provisions of the agreement. Rather than from the provisions of the law or the partner's own role. Generated based on the rights of such contracts should correspond to the obligations of good faith and fair dealing rather than fiduciary duties. Unless the provisions of the partnership agreement itself expressly limited partnership owes fiduciary duties or agreements on the creation of a limited partner in a certain role (eg agents), and according to relevant laws, such a role in making a limited partnership shall bear the fiduciary duty.

Third, the conclusion
China is currently being revised, "Partnership Enterprise Law", either directly, in which the requirements to join a limited partnership or a limited partnership entered into a separate law on general and limited partnership is the interface between the provisions of an important issue. The two local laws and regulations on the current eleven limited partnership Beijing and Hangzhou, management practices of view, the general partner and limited partner of the fiduciary duty does not require. Limited partnership during the legislative work, and can not ignore this issue in 2001, the Uniform Limited Partnership Act are worth learning. Links to Research Papers Download http://www.hi138.com