On the nature of the partnership property I see

Keywords: pArtnership, pArtnerships, property, legal entity

Summary: Modern pArtner has a simple contractual relationship of personality to change society organizations, in pArticular, are the main commercial pArtnership, all partners is essentially a legal entity established by Law, and partnership of the firm that its different partners qualification, therefore, a partnership must be compatible with their independent legal status separate property partnership's total property owned by all the partners in foreign relations can be regarded as a natural partnership for all. In recognition of a partnership with legal personality of the countries directly to all the provisions of a partnership enterprise.



Partnership's property is a partnership for the purpose of business operations to a partnership in the name of the collection of property in general. Partnership property includes partners from business investment and partnership <<Partnership Law> > Article 20 provides: "Partner's capital contribution to Partnership on behalf of the gains and legally acquired other property, are partnership property." partnership property of the concrete manifestations, either physical objects or non-physical objects , can also be a property, or intellectual property claims and other property rights. partnership property from the source side, a partner in the partnership by the establishment, funding and partnership of the duration of the revenue composition. partnership property is a partnership set up the conditions, but also a partnership engaged in business activities, the material basis, and also the partnership's foreign debt first order property security.


First, the partnership nature of the legal definition of property

Partnership nature of the property is the partnership real property ownership in the legal due to the complexity of partnership property values ​​and legal traditions and legislative differences, national provisions on partnership property is not consistent. China <<Civil Code>> Section 32 provides that: "Partner investment property, unified management by the partners and the use of the property accumulated partnership, owned by a partner there." which means the definition of partnership property first distinguish between the formation of a partner's property and investment partnership accumulation of property, and then be treated separately, of which part of a partnership, owned the property posed by the absence of legal characterization of the partnership property was defined as the accumulation of common property, but did not clearly fall within the type of a total of .1997 year <<Partnership Enterprise Law>> Article 19, paragraph 2: "the property by the partnership all the partners in accordance with this Law and the use of co-management." In addition to this and other terms of control of the partnership property from the positive and negative ways two aspects to the provisions, the partnership nature of the property not be amended any of the provisions .2006 <<Partnership Enterprise Law>> remove the original <<Partnership Enterprise Law, "Article 19, paragraph 2, of the This, I believe that there are two aspects of its legislative intent, on the one hand, the terms of the absence of clear ownership of the property of a partnership the nature of the normative sense is not, on the other hand, managing partner of a partnership the appointment of Corporate Affairs, the partnership's property is not shared by the management and use of all partners, in addition, the revised <<Partnership Enterprise Law>> Chapter added a "limited partnership" requirement, which is characterized by a limited partner shall not participate in the implementation of partnership affairs, consider the to the provision of extension has not sufficiently comprehensive, this provision would be inconsistent with other provisions of law or conflict of production. Accordingly, the repeal of the provision. From the above we can see that China's legislation on the partnership's ownership of property not clear and clearly defined, then led to our jurisprudence on the issue of extensive debate, has divergent views.


United States <<Unified Partner Law>> Article 25 (1, provides that: "Partner with a partner who is a partner in a lease-specific co-owner of specific partnership property." <<British Partnership Law>> Article 20 provides: "the establishment of a partnership firm into Account of all purchases or otherwise acquired for the purpose of the partnership firm or for the acquisition of property, property rights and interests, this bill is called the partnership property shall be a partner of the partnership agreement for the purpose of holding the absolute have and use. "Although there is no provision which the nature of partnership property, but it gives a similar partnership in the actual operation of the company's property due to" the French Civil Code>> Section 1842 gives the partnership a legal personality (except silent partnership ), so the French acknowledged partner Zishen enjoyment of property ownership and usufruct <<French Civil Code>> Section 1843-3 provides that "investment in kind, the right to transfer and the corresponding property of the effective action and to achieve, such as investment targets for the ownership, the investment of the partnership, as seller of its buyer to assume security responsibility, such as investment targets for the usufruct right, as a partner for investors, as the lessor to the lessee the burden of liability insurance, but if the subject of investment in the partnership process normal objects that need to update all other property or usufruct, such a partnership contract to transfer the ownership of property investment in the partnership should be agreed to return the same quantity, weight and value of the property, in this case, investors in the preceding paragraph shall be the burden of protection under the conditions specified responsibility. "<<German Civil Code>> Section 718 (1 reads:" Partnership and funded by a partnership to achieve the implementation of the affairs of the objects are the common property of a partner. "in accordance with section 706 of the legislative intent, agreed to partner with in-kind contribution to the ownership of the targeted persons, as the partners shared a common thing, if an agreement is not clear and there is doubt, to replace the consumption of material objects or funded, or substitute , arrived to make non-consumer material valuation data, and valuations for the allocation of simple interest, shall be presumed for all partners jointly funded a total of <<Japanese Civil Code>> Section 668 provides: "Each partner's contribution and other partnership property, belonging to all the partners there. "Taiwan <<Civil Code," Article 668 is more explicit, specifically states: "Each partner's capital contribution and all other property for the partners of the joint there."

The nature of partnership property over the different provisions can be summarized into three situations: First, the recognition of a partnership with legal personality of the country, that partner as a legal ownership of the partnership property, and the second, does not recognize the right partner is the subject of national law all run on a total of partnership property to all the partners, third, the United Kingdom and the United States legally, although not directly recognize a partnership with legal personality, but, but given the legal right to a partnership similar to the ability of corporate, partnership firm can be its to obtain the name of the ownership of movable and immovable property.


Second, China's Civil and Commercial Law academic debate about the nature of partnership property

The nature of ownership of partnership property, as early as <"Civil Code" issued before, there are two different views: one view is that the nature of partnership property is a socialist collective ownership of public property; Another view is that the relevant state administrative regulations All the provisions of the partnership property belongs to individuals [1] [1] For example, in 1983, the State Council <<co-operation on the town a number of provisions of labor>> in the regulations, members of the gold shares and other property still belongs to all individuals, unified by the use of cooperative organizations and management. The reason was that the collective nature of the partnership property belongs to the property, because <<Civil Code>> before the promulgation of a very long time, there has been no legislation on the partnership, the de facto partner of a number of cooperative economic organizations often exist in the among the cooperative economy in China's traditional view has always been considered to belong to the nature of the collective economic organizations, but the collective ownership of the single ownership, it does not recognize the group members as individuals have any rights to the collective property, only as a collection of all group members, only in the concept of collective property ownership, which is obviously a partnership in the course of business and property characteristics of the composition and changes in the actual situation is far from [2] [2]

First, the property investment partner, the general partner and the use of unified management, what is the nature, there are three different perspectives: (1) partner into the partnership property remain with all partners, but unified by the partners management into use, (2 partners invested a total property owned by a partner, can be divided into specific total and by shares of common said common shared idea that the property investment partner for the partner co-Total, by shares that is advocated the formation of a partnership, owned the property as a partner by shares. [3] [3] The reason is the partnership agreement has previously made an agreement on the funding share (3 <<Civil Code>> there is no clear partner of the ownership of the property into a partnership ownership, is a flexible requirement, partners can agree on all the partnership property owned by a partner, a partner can agree on total return. Some scholars have further pointed out that it is precisely because these two situations, <<Civil Code>> Section 32 states: "The partnership invested assets, unified management by the partners and the use of the property accumulated partnership, owned by a partner there." [4] [4] Most scholars support the third view, the reason is a partnership funded different types, and different investment property agreement, making it difficult to identify all Yigai property investors have formed a partner or a total of all individual investors, "Civil Code>> Section 32 (1) The term" unified management by the partners and the use of "that includes these elements, this provision is more scientific and reasonable. [5] [5] According to the spirit of this legislation, whether the funding partners posed a direct partner of the common property, depending on the agreement and the partnership agreement invested assets the nature of general partner in cash, the investment is the ownership of the partnership, if a property right to use the funding, the funding from the legal nature of the subject matter that still belongs to all individual investors. current <<Partners Enterprise Law>> amendment in 2006 abolished Article 19, paragraph 2, "the property of a partnership all the partners in accordance with this Law, jointly by the management and use" requirement, therefore, the existing <<Partnership Act>> of the partnership corporate nature of the property without any provision.


Second, the <<Civil Code>> provides partners accumulated property, owned by a partner there, and scholars on the nature of the property to form four perspectives: first view is that there should be common, that is, from all partners, regardless of share in the exercise of ownership of the property, the second view is that the property should belong to by shares, a third view is that the two cases should be discussed in most cases, such as are for-profit and commercial partners, the There are common property, in a few cases, such as non-profit partner, the property is by shares. fourth view is that the accumulation of partnership property, owned by a partner there, in essence, is a partner individuals. [ 6] [6]

I believe that a partner who will be directly invested property simply as a partnership who provides all, or a partnership of people there, a complex partnership property are difficult to apply the objective facts, because the type of partner were the liberalization of investment, the partnership's property may be caused by diverse a variety of property consisting of a collection, not just objects, therefore, its extension with the concept of ownership can not cover, can not explain the partnership nature of the property, for example, A, B, C and D entered into a partnership agreement to set up a general partnership companies, agreed to a cash contribution of $ 120,000 and to participate in the daily management of labor invested as the price of 5,000 yuan, B funding for the cash 30 million, of which 50% agreed, or 15 million, six months after the establishment of the partnership to pay Fu, C financing a car, priced $ 90,000 to provide small business establishments, the use of 2 houses right investment, price of $ 100,000 from the agreement of the partnership agreement can be seen, the type of partner and investment target way with the diversity of the species in terms of funding, both cash contribution is also in-kind contribution, in-kind contribution not only to the subject matter of ownership (car financing, but also includes the right to use the subject matter of investment (housing the right to use addition, a The funding also includes services funded. real partners funded the original nature of the right tend to be more diversified, in addition to property rights but also have a partner with the personal service can not be separated. Although the ownership of the property and use rights-based, but law also allows for debt, equity, intellectual property rights invested. partner presented a variety of funding right to form, although after entering the partnership form of business partnership dominated the whole set of assets, but, except for certain property and power outside its ownership change, the nature of rights does not transform a single ownership.


In addition, if a single legal basis to make mandatory provisions of the partners will carry out production and business activities, investment and bring great difficulties not only deprived the partners entered into a partnership agreement in a variety of flexible financing options agreement of freedom, and a partner invested in the property is still vested in all cases a partner, business partner is bound to cause the common purpose of adverse consequences, however, is not clearly defined in the law partner of investment property ownership and operating income , there is no requirement to determine the nature of partnership property the way the case, the partnership's operations and termination of extremely unfavorable. The main reasons are: first, does not require identification of the nature of partnership property, even though the partnership agreement for the ownership of investment provides free space, but this is just starting from the contractual partner, while ignoring the characteristics of partner organizations, especially the partnership's main commercial nature. In addition to simple partnership, a partnership of modern contract and have shown the unity of partner organizations, partnership as a commercial business organization is legally registered and established by the business entity, its organizational characteristics in particular. domestic partnership is a contractual relationship, foreign partnership is a type of economic organization as a partner is bound to a class of economic organizations in foreign trade If the trading partner relative to the alienation of property, the essential prerequisite is that the property is legally owned by a partner or owned by a partnership of all total. Second, the nature of the property investment partner, if the law makes no provisions are agreed upon by the partners, once a partner in the partnership agreement or the agreement is not unknown to be agreed, or agreed with the essential nature of partnership and legal contrary, the partnership will result in the confusion of property rights, while property rights theory and practice have proved confusing is the root cause of enterprises lack vitality. Third, the nature of partnership property law of accreditation, does not exclude the partners invested in the partnership agreement the right to contract is a free, in the Legislative technically legal norms can play through any of the partners complement the lack of autonomy of function that is only the absence of agreement in the partnership agreement, the agreement is not clear, the only applicable law; In addition, when the agreement contrary to the legal the nature of the subject itself and investors, the mandatory provisions of applicable law straight confirm ownership of the underlying investment. It can be seen, <<Partnership Enterprise Law>> the nature of the partnership found no mention of the property, resulting in the law to give up its adjustment <<Civil Code>> provides the accumulation of property owned by a partnership all partners Total and correctly reflect the partnership groups and partnership of the actual needs and should be affirmed. The idea that the accumulation of property, a partnership owned by the business partner of Total in real terms, still owned by individual partners all is inherently self-contradictory. In addition, this view will be partnership property owned by a partner there with all the general partner of the partnership property confuse the exercise of power, but will also partner of the partnership property during the existence of a total of with the termination of a partnership by the distribution of common property ownership to the ultimate partner, far-fetched to pull together.


I believe that regardless of a partner or a partnership, owned the property in order to accumulate the form of common property can only exist there can not be shared by shares. There is a common index of human beings as a whole, together with a big share of the ownership by shares then the index should be part of their people, ownership of a thing <<Property Law>> Article 94 states: "There were people there by real estate or movable property in accordance with its share of ownership." Article 95 provides : "co-owner of the shared ownership of real estate or movable joint." distinguish between the two is: (a common total, a part of and should be part of another should be between the subject identity constraints, such property should be represents only part of the total of people have an interest in the proportion of total material, only through the identity should be part of the potential, therefore, no phase separation and identity should be part of the transfer, and by shares can be part of its due freely transferable. transferee as the new co-owner and the transferee have the right part of the proceeds (2 total during the existence of a common, each tenant may request separate commons, while the people can always request copies of a total split commons. (There are 3 things in common nature of man-made total by the total of the common interests of groups of people management, use, income, each person alone, there are no such rights, and their total by shares were part of a separate right to use and usufruct (4 common There were equal to the total property rights obligations, co-owner of the total liability for property jointly and severally liable, while the people were there due share of the rights of their obligations, the total of all debts and liabilities of material on the share of responsibility by . It can be seen, there are partnership property only in the common case, in order to ensure the realization of the Industry partners to ensure that partner organizations who together, continuity and business stability. If in the case by shares, then the partner people can freely dispose of their rightful share of the partnership property, and division of partnership property at any time request, the partnership is bound to be difficult to maintain, a partnership of the Industry will be difficult to sustain.


The above analysis concludes that the legislative response to the nature of partnership property or identify the nature of the principle of partnership property and clearly defined manner, not because of their complex and diverse, difficult to unified ownership, and legislation to take evasive attitude. I believe that the partnership's property should take the general and special combination of both to be provided. Partnership property should normally be shared by all partners there, but the partnership agreement of the partner's capital contribution except as otherwise agreed. Partner of investor ownership is no agreement or agreement is not clear, the presumption is that all partners jointly funded property there. in cash, and owned by all partners of the total cash contribution, in kind, intellectual property and other tangible and intangible property investment, the partners are free to agree funding is the subject of ownership or use rights. If you have agreed to ownership of the investment, constitute the common property of a partner, if only all right to use the investment constitutes a general partner or the executor of use of property transactions, the ownership still belongs to all of my donors. In addition, partners with skills and services funded and in-kind, money and other property rights also constitute a total investment property partner of the agreement shall not be funded with funded property, the nature and type of material the mandatory provisions of law conflict, for example, to substitute material consumption and investment not only transfer of use rights do not transfer ownership of the means, the nature of the agreed investment property, a partner of the law are the common property can not be agreed to by shares.


Third, the nature of partnership property on our legislation to reflect

"Partnership Enterprise Law>> in the nature of a business organization law and the main method, it gives the partnership the main qualification. Partnership with the company as a kind of co-existence of market players, <<Partnership Enterprise Law>> Although there is no grant of legal personality qualifications, and even their legal status is no clear legal provisions, however, since the legislation will be included in the scope of business is undoubtedly viewed as a subject. <<Partnership Enterprise Law>> provides legally registered partnership formed to own the name of civil and commercial activities, rights, obligations, tax law and prosecution, the respondent, which fully shows that partnerships are a class of independent civilian body. partner from a simple contractual relationship with the group to the right of the main character in the process of evolution, along with the corresponding property of the evolution of the system, that all partners - partners there - a partnership of all. civil law in civil and commercial Most of the countries in the early separation of commercial partners to give legal status while on the property given its independence in France and proportion, in addition to silent partner outside the civil partnership legislation has also gained legal status and have their own independent property. United States in 1994 enacted a new <<Unified Partnership Act>> Section 501 clearly affirmed: "A partner is not partnership property in common, can be voluntary or involuntary transfer of the property of no interest." partnership transferee or to buy the property is partnership property, rather than partner's personal property. This designated partners of the partnership property and the property line in China <<Partnership Enterprise Law>> Since the partnership as a separate civil subject, we must design a corresponding system of property rights. to a partnership with the group personality suited to the minimum property requirement is a partner should have a partner jointly owned property, but unfortunately <<Partnership Law> > have not made any provision, if a partnership is not the common property of groups, partnerships, management of the property bound to the lack of certainty is not conducive to the stability of the business partner because of <<Partnership Enterprise Law>> control of the partnership nature of the property is not set the terms found in nature, leading to under the law provisions on the legal basis of partnership property can not be demonstrated, for example, Article 21 of the Act provides: "a partner in a partnership liquidation, it shall not request to split the property partnership However, except as otherwise provided in this Act. partner in the partnership before the unauthorized transfer or dispose of liquidation partnership property, a partnership shall be no bona fide third person. "Article 38 provides:" a partnership of its debt , with all its property should be settled. "I believe that the partnership in the partnership can be used to settle the property of foreign debt can only be a partner there or all of the partnership property, although some scholars believe that <<Partnership Enterprise Law>> the nature of the partnership's property without express provision is to allow the partnership agreement on the nature of the property to a partnership agreement, implementing the principle of autonomy. partner can be the type of investment property owned by all the partners agreed to a partnership there, you can also agreed to return partner individuals. assume that a partner in the partnership agreement agreed to partner funding is still owned by all partners, the partnership's income on a regular basis according to the agreed proportion. This convention does not necessarily lead to a partnership of people shared a partnership of independent property and cause <<Partnership Enterprise Law>> Article 38 provides: "The partnership of its debt, with all its property should be settled" can not be honored. Some may argue that even so, the partnership will not have creditors damage, because Article 39 provides: "a partnership can not discharge the debt due, the partners jointly and severally liable." However, I believe that in the above hypothetical case, the partnership interests of creditors have been compromised because the partner corporate creditors based on partnership property of the priority claim is denied, the order interests have been damaged, although in this case, he may require the general partners bear unlimited joint and several liability, however, inevitably increase the cost of their claims to achieve . Therefore, I believe that to improve the personality of a partnership, must ensure that the partnership has a group of property rights in order to make the healthy Development of partnership and ensure the security end, <<Partnership Enterprise Law>> response nature of the property or partnership identification of the nature of property means to make explicit. In view of partnership is a partnership agreement with the binding partner organizations, the product of the law shall regulate the arbitrary and coercive, unifying principle and flexibility. the law can be developed as follows: " partnership's total property owned by all partners, but partners in the partnership agreement entered into when, according to the type of investment and partnership agreement with the actual needs of the nature of property investment partner, a partner with alternative materials, consumption of materials usually should be funded agreed to ownership of property investment, property ownership for investment not offset agreement or the agreement is not definite, presumed to be all the partners there. "

Although the partnership's property partner in the internal relations of all the partners there, but in foreign trade, the law can be regarded as a partnership on all their property, even legal provisions can be directly owned by a partnership of all its reasons: First, partnerships are a class of independent civil entities, must have its own independent control of the property, which is a partnership engaged in the production and trading activities of the material basis, and secondly, the process of partnership in the operation, the acquisition of property and punishment are in partnership under the name of the firm's in the UK land in partnership name had been registered, without reference to a partner, although the common law on the legal holder of the property is the partners themselves. [7] [7 ] are the common property of all partners, the business part of its management and disposition of rights holders, partners not only individuals qualified management and disposition of [8] [8] Therefore, the partnership's property to obtain the name of partnership , and to partnership interests, with partnership groups will occupy, use, disposition and income. In this partnership of property and property owned corporation aggregate has almost no difference, for example, is a partnership with an occasionally used in the ship business partnership. A partner without the consent of the other partners, for personal profit in the weekend with a ship carrying passengers, tourist recreation, the partner of a partnership of ships using the gains to be all owned by a partnership of all. Because the income is received through a partnership of the property, the partnership should be classified among the accumulation of property. In addition, partnerships with the unity and integrity of the property, although the partner as co-owner of the property have proper share, but for some reason a partner based on partner status only have a total share of property, the share of partner status only through some of the potential should exist, in fact, only a partner for the calculation of common property rights and interests of the symbol. partner may not dispose of to a third person secretly in the partnership property should share partnership is essentially a legal entity established by law all partners, and partnership of the firm that its partner is different from the main qualification of a partnership property owned by all the partners there, in foreign relations can be regarded as a natural partnership for all in the recognition of a partnership with legal personality provided directly to countries all belong to a partnership.


China <<Partnership Enterprise Law>> Although the partnership property of the independence of the personality and the absence of express provision, but judicial interpretation and referees are inclined to be treated as a separate legal entity. 1957 Supreme Court No. 1480 document states: "The partnership of business and sole proprietor of the business are a liability and wholly owned enterprises unable to pay, the auction of the property partnership, the partnership should first settle a debt before the partners in proportion to share part of the liquidation of the debt owed to its wholly-owned enterprises. "Supreme Court in 1990 <<on the trial of an associate contract number of questions answered>> states:" The Joint Venture is a partnership organization, can be the first to joint property pool of debt settlement, Joint Venture property is insufficient to settle debts, according to the parties by the joint venture's debts and liabilities associated proportion of the contract settlement. "judicial interpretation of these two despite a lapse of 30 years, but both will be a partner in the concept companies and partners as the main view of two separate, distinguish between the partnership's debt and debt partner, and stand in different asset bases, respectively, for payment. China has a case under the <<Partnership Enterprise Law>> recognized by the same spirit of partnership the independence of corporate property and its main in this one case to illustrate this. the plaintiff and the defendant B A negotiated in November 18, 2004 signed a <<a partnership contract>>, agreed: the two sides jointly funded the construction of Huanjiang Sanyang village of Nango Giho the next station, operating hydropower Development, which the plaintiff and defendant had invested 118,013.19 yuan and 127,483.61 yuan. a partnership limited period of September 1, .2005, Huanjiang Industry and Commerce Administration approved the issuance of a <<a partnership business license>>, Managing Partner of Corporate Affairs of the partner-defendant B on December 11, .2006, the defendant and the B ring Jiangan Yuan Electric Power Development Co., Ltd. signed a <<transfer station equipment agreement Sanyang village Giho >> transfer the proceeds totaling 190,000 yuan .2008 January 3, the defendant by the plaintiff to pay the father of the Agricultural Bank account to the plaintiff $ 50,000 in the same year on July 30, the defendant allowed the plaintiff to pay the transfer station and only to its 5 million, resulting in the grounds of their economic losses to the courts, the defendant one-time compensation for economic losses 68013.19 yuan, but because the two sides have yet to liquidate the partnership, the Full Court of the plaintiff and defendant for release tomorrow, the plaintiff still that does not require the liquidation of the partnership. Thus, the December 9, 2008, Guangxi Jinchengjiang's Court according to <<PRC Partnership Enterprise Law>> Article 85, the provisions of Article 86, that the company should be dissolved and liquidated, the plaintiff in a partnership is not dissolved and liquidated according to the case that the defendant for damages, the claim justified, according to ruling dismissed the plaintiff's claim.


Analysis of the case, we can see the reason why the court ruling dismissed the plaintiff's claim, because, first, the plaintiff claims the defendants allowed the transfer of power stations, failed to provide sufficient evidence, and the second plaintiff and defendant have been invested to build the hydropower station transfer, the two sides agreed to operate hydropower Development has been unable to achieve the purpose, which shall be dissolved and liquidated, its three power plants transfer funds constitute property of a partnership, a partnership is ignoring the existence of the plaintiff, leaving aside the partnership went straight to the executor of the partnership affairs proceedings, made the deal a partnership in order to claim their property, the distribution of benefits claim, the lack of legal basis.

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General partnership in the partnership's property during the existence of a unity and integrity, of which there are some common part of all the partners there, but also for all the partners share a common part of the management and use. Any partner not entitled to dispose of the physical form partnership property, which can only by law or agreement to dispose of their partnership agreement in the partnership have the form of value of property share partner of the partnership's property rights relations and the status of a partner can not be separated, but closely linked . partnership is typical of people together, partnerships between the existence of mutual personal trust relationship. Therefore, the ban will partner partner partner status and share of the property separation, alone to dispose of their share of partnership property and only by consent of all partners for the kinds of action.


(A share of the partnership property disposal restrictions

Partnership share of property disposition, not a single property for partnership in the proper section, but rather based on the status of a partner all the property for partnership purposes. Partnership's property is based on the partner's position funded by the partners and the combination of the accumulation of a partnership, and partner status with the inseparable unity of property as a partner in the partnership's share of property with a partner's status is only interdependent and non-reality, non-independent calculation proportion of it thus sanctions a partnership share of property shall not change the status of a partner separation exists, so a partner in the partnership share of property owned by a partner each other in the action, occurs only on the calculation of property relations changes partner changes do not occur, and thus the principle of voluntary action by the parties, without other restrictions, however, for a person other than the partner's partnership share of property as punishment, the inevitable occurrence of partner change between the original partners Some personal trust relationship will break and re-adjusted, therefore I need all the partners agree. Partner share of partnership property disposition although limited, however, partner of the partnership enjoyed by the impersonal nature of the simple claim, though without other partners agree, does not prevent their effectiveness. claims that have been identified naturally not a problem, even if the future distribution of benefits claim, interest claim, the property remaining after liquidation distribution may also claim a separate assignment, of course nature has Renshen the right partner and the partnership property shall not be separated from the separate share transfer. share of partnership property disposal restrictions in addition to the transfer of the share of partnership property, but also for the share of partnership property and quality of collateral is located, for example, A, B, C, D A joint venture set up a limited partnership. the partnership agreement: A, B as the general partner, invested 100,000 yuan respectively, C, D as a limited partner, respectively, invested $ 150,000, a managing partner of corporate affairs, external representation A enterprises. a partnership agreement with a partner did not share a quality property matters agreement .2006 April, B, C respectively obtain a consent to their own property in the A share of the enterprise quality for their own loans to banks provide collateral security. Ding knowledge on these matters, B, C between each other unaware of the collateral security matters. case of B, C to partnership in the share of property out how to evaluate the effectiveness of quality? According to principles of partnership, the partnership has the typical co-author of, partner in the partnership's share of property is based on the identity of all the property in a partnership among the potential value of the proportion or share, because it is different from the Corporation's shares realized in the form of capital stock of securities, therefore, it is only a partner in a partnership interest in the property, the proportion of non-independent calculations, not real property rights. It can not be divorced from the overall partnership's property value as a separate transaction with separate subject, nor the identity of a partner with the separation occurs as a separate action. partner in the partnership's share of the property transferred as if the quality management according to law, must share with the transfer of property subject to the same restrictions, the general partner to share the property quality, the elements should be agreed by all partners, limited partners share of property in addition to the quality of a limited partnership agreement, the meaning is not subject to the constraints of other partners, it is because of the limited partnership and other partners to the joint capital based, co-author of the very weak. based on the above analysis, in this case, B as a general partner of the quality of its share of the property without the consensus of all partners, their pledge invalid; c of the quality of having legal acts effect because of the limited partnership agreement, partners share of property out of quality, not the other restrictive provisions.


(B) restrictions on the division of property partnership

<<合伙企业法>>第21条规定:" 合伙人在合伙企业清算前,不得请求分割合伙企业的财产,但是,本法另有规定的除外.合伙人在合伙企业清算前私自转移或者处分合伙企业财产的,合伙企业不得以此对抗善意第三人."合伙企业的财产归全体合伙人共同共有或共同使用,而且必须为了合伙企业的目的事业而管理和使用合伙财产.如果允许各个合伙人在合伙企业存续期间享有分割合伙企业财产的权利,必然妨害合伙企业的正常运行,导致合伙企业的目的事业无法实现,而且也会损害债权人的利益.然而合伙企业解散清算或合伙人退伙时,法律则允许对合伙企业的财产进行分割.另外,该规定只是禁止一部分合伙人请求分割合伙财产,以保证合伙企业财产的充实与稳定,并不禁止经全体合伙人一致同意分割合伙企业的财产,这种情况实质属于合伙企业的解散和清算.合伙人在合伙企业清算前私自转移合伙企业的财产,将损害合伙企业债权人的利益,私自处分合伙企业的财产,如果受让人为不知情的第三人,合伙企业不得以此作为抗辩理由.在我国合伙企业实际运行过程中,合伙人擅自分割合伙企业财产的情况比较普遍.例如,朱某与甲、乙两人商议合伙开办一小食品加工厂,三人商定各出资2万元,订立了书面协议.因资金不足,朱某于是动员胞弟朱丙支持他们2万元.朱丙表示愿意出资,并要求参加合伙的盈余分配.经朱某与甲、乙两合伙人商议,对朱丙参加盈余分配表示同意,但约定朱丙不得参与合伙的经营活动,为此与朱丙订立了书面协议.小食品加工厂成立1年后,朱丙了解到该厂经营情况不景气,要求抽回他的2万元,被朱某拒绝.某日,朱丙乘朱某外出之机,找到甲、乙两位合伙人,以同样理由要求还钱,并声称朱某已经同意,碍于朱某与朱丙的关系,两合伙人便将该小食品加工厂当时仅有的12000元现金交给了朱丙.朱某回来后对此表示十分不满.半年后,朱某告知朱丙,小食品加工厂现已累计亏损32000元,小食品加工场的债权人正在追讨债务.朱丙的8000元应当用来还债,不予归还.本案中朱丙的行为属于典型的违法请求分割合伙企业的财产,这一行为不但不能对抗善意债权人的请求权,而且朱丙作为普通合伙人必须与其他合伙人共同向合伙企业的债权人承担无限连带责任.


五、合伙企业财产与合伙人的个人财产

合伙企业的财产是合伙人的出资和所有以合伙企业的名义取得的收益的总和.合伙企业的财产在性质上为合伙人共同共有或共同使用,具有统一性和完整性.合伙企业的财产与合伙人拥有的,未投入合伙企业的其他个人财产相分离,具有相对的独立性.我国台湾学者史尚宽在其所着的<<债法各论>>中认为,合伙财产是与合伙人的一般财产相区别的特别财产.由于合伙财产与合伙人的财产相区别而独立,合伙人的债务和合伙的债务分别立足于合伙人的个人财产和合伙财产优先受偿,即双重优先原则.德国<<民法典>>第719条、733条第1款对此作出了明文规定.英国<<1914年破产法>>第33条第6款确立了合伙人破产时所使用的以下规则:合伙财产应首先用于偿还合伙债务,而合伙人的个人财产应当首先用于偿还其个人债务,个人财产偿债后的剩余部分应视为合伙财产的一部分,而合伙财产偿债后的剩余部分应按合伙人持有合伙财产份额的比例分配,并视为其个人财产的一部分.美国<<联邦破产法>>第5条第7款规定:"来自合伙财产的净收益应用以清偿个人债务."我国<<合伙企业法>>第38条规定的:"合伙企业对其债务,应先以其全部财产进行清偿."第39条规定:"合伙企业不能清偿到期债务的,合伙人承担无限连带责任."这两条规定同样划分了合伙企业的财产与合伙人的财产边界.合伙企业的财产与合伙人个人财产的独立性在法律上表现为以下几点:

(一禁止合伙人的债权人代位行使合伙人在合伙企业中的权利

各国法律对合伙人的债权人行使代位权均有限制.这是因为合伙人对合伙企业享有的权利与合伙人的身份密不可分,具有专属性,至于合伙人所享有的利润分配权,因它已经成为合伙人的独立权利,并无专属于,所以,可以由合伙人的债权人人代位行使.我国<<合伙企业法>>第41条规定,合伙人发生与合伙企业无关的债务,相关债权人不得代位行使合伙人在合伙企业中的权利.第42条规定,合伙人的自有财产不足清偿其与合伙企业无关的债务的,该合伙人可以以其从合伙企业中分取的收益用于清偿.由此可以看出,法律禁止以合伙企业的财产为合伙人个人清偿债务.


(二禁止合伙人的债权人对合伙企业行使抵销权

<<合伙企业法>>第41条前一句规定,合伙人发生与合伙企业无关的债务,相关债权人不得以其债权抵销其对合伙企业的债务.这是因为合伙企业的财产与合伙人的财产相对独立,合伙人的个人债务应当基于合伙人的个人财产优先受偿,合伙企业与合伙人是两个相区别的主体.能够抵销的两个债权债务关系的当事人应当是相同的,并且必须在当事人之间存在着对等给付.然而合伙人所欠其债权人之间的债务与其债权人对合伙企业所负的债务,两个债权债务关系不仅当事人不同,而且不存在对待给付,因此,不具备抵销的条件.例如,2007年4月1日,甲、乙、丙、丁共同出资60万元成立一合伙企业.合伙企业经营过程中,乙的债权人张某,也是合伙企业的客户,向合伙企业主张:乙拖欠他15万元,至今未还,所以,他欠合伙企业的14万5千元货款也不还了,相互抵消,5千元的差额也不要了.然而,张某的这一主张缺乏法律依据,理由是:合伙企业与合伙人相互独立,张某对合伙企业的负债与乙对张某的负债不属于相同当事人之间互负债务,所以不符合抵销的构成要件,另外,如果允许这种情形的抵销,等于乙从合伙企业中获得了额外利益,意味着合伙企业为乙清偿了债务.这不仅导致合伙企业应获得的期待利益无法实现,而且对其他合伙人会造成不公平的损害.


合伙企业的债权人能否就其债权与其对合伙人的负债主张抵销,台湾学者认为:"合伙不得主张以合伙人之债权来抵销合伙债,因若合伙财产未至不足清偿合伙债务时,则合伙人既无连带责任可言,其合伙债务即应以合伙财产清偿,如果未经债权人同意,自不得以各合伙个人对债务人的债权,而主张抵销合伙债务全部." [9] [9]笔者认为在合伙财产足以清偿其债务的情况,禁止合伙企业的债权人主张以该债权与其对合伙人所负的债相抵销是完全正确的.其理由是:在严格区分合伙企业与合伙人债务的前提下,合伙企业的债权人对合伙企业享有的债权与其对合伙人的债务,不符合抵销当事人互负债务的原理,侵害了合伙人享有的顺序利益,补充责任也就变成了并存责任.但是,当合伙企业的财产不足以清偿合伙企业的债务时,合伙企业的债权人如主张以该债权与其对某合伙人的负债相抵销的,应当允许.因为在这种情况下,合伙人对合伙企业负债有直接清偿责任,如合伙人对合伙企业的债权人也享有债权,就具备了抵销的条件.而且,这种抵销使合伙企业相应的债务消灭,其他合伙人也就此免除清偿义务.


(三合伙人的债权人对合伙企业的财产不得申请扣押

合伙人的债权人对合伙企业的财产不得申请扣押,但可以申请扣押合伙人在合伙企业的财产份额.对合伙人财产的扣押构成合伙人退伙的法定事由.因而此时的扣押并不是针对合伙人就合伙企业财产应有的份额,而是针对合伙人退伙时,与合伙企业结算中接受返还的财产.<<合伙企业法>>第42条规定,债权人也可以依法请求人民法院强制执行该合伙人在合伙企业中的财产份额用于清偿.人民法院强制执行合伙人的财产份额时,应当通知全体合伙人,其他合伙人有优先购买权,其他合伙人未购买,又不同意将该财产份额转让给他人的,依照本法第51条的规定为该合伙人办理退伙结算,或者办理削减该合伙人相应财产份额的结算.合伙人以动产或不动产出资并将物的所有权转让登记给合伙企业的,合伙企业的债权人不得强制执行该物,未将所有权转移登记给合伙企业,仅将使用权转让给合伙企业的,合伙人的债权人可以将作为强制执行的对象.


六、结论

随着社会经济的不断发展,合伙朝着具有某种团体品格的组织共同体方向发展."中世纪西方商法用比较集体主义的合伙概念取代了比较个人主义的希腊—罗马的合伙概念." [10] [10]日本、法国、意大利、比利时等国均承认商事合伙具有法人资格.美国1994年的<<统一合伙法>>也放弃了传统的集合说,改采实体说,确立了合伙的主体地位.伴随着经济生活的现实需要和时代的发展,民事合伙亦逐渐成为一种组织制度的创新载体,日益朝着主体化的方向发展,因此,赋予合伙组织民事主体地位是当今民事立法的最新潮流. [11] [11] 我国<<合伙企业法>>已经将合伙上升为一种独立的企业形态之一,因此,合伙企业无疑是一种独立的民事主体. [12] [12] 合伙企业作为独立的民事主体必然要求与其团体人格相适应的可供合伙企业支配的独立的财产.这是合伙企业实现目的事业,确保合伙企业团体性、持续性和经营稳定性的物质基础.鉴于合伙企业的人合性、契约联合性和组织的团体人格性,笔者认为对合伙企业的财产应当采取一般与特殊两方面相结合的方式加以规定.合伙财产一般应由全体合伙人共同共有,但是合伙协议对合伙人的出资另有约定的除外.合伙人对出资归属没有约定或约定不明的,推定为该出资的财产为全体合伙人共同共有.以实物、知识产权等有形和无形财产出资的,合伙人可以自由的约定出资标的是所有权或使用权.但是,约定不得与出资种类物的性质和法律的强制性规定相抵触.例如,以货币、替代物和消费物出资的,不得约定以使用权作为出资方式.这样以来,合伙企业独立支配的财产既包括合伙人共同共有的财产,也包括约定仍由合伙人个人享有财产所有权,但由合伙企业享有排他使用权的财产.属于合伙人共同共有的财产由合伙人以所有权出资的财产与合伙企业的收益形成的财产构成,这部分财产是合伙企业从事对外交易,履行义务和承担责任的一般保证.合伙企业独立支配的财产无论是合伙人共同共有的财产,还是合伙人仍享有所有权由合伙企业专属使用权的财产,均构成合伙企业存在期间与合伙人的其他个人财产,保持独立的财产.在合伙企业存续期间任何合伙人不得要求分割合伙企业的财产,合伙人转让、出质其在合伙企业的财产,或清偿个人债务,均不得妨害合伙企业财产的独立性和完整性.只有如此,才能确保合伙企业经营秩序的稳定性和合伙企业债权人的合伙权益.




Notes:
[1] 高富平等:<<合伙企业法原理与实务>>,中国法制出版社,1997年版,第174页.

[2] 值得特别注意的是我国<<农民专业合作社法>>为了防止合作社再次误入集体化的歧途,抛弃前苏联和我国自50年代以来把合作社作为集体所有制企业的错误认识.杜吟棠认为"合作社体现的是生产要素的组合方式而非特定所有制形式,这也就是为什么合作社在不同社会制度中能够建立和发展的原因."参见杜吟棠主编:<<合作社:农业中的现代企业制度>>,江西人民出版社2002年版,第2页.

[3] 张士元等:<<企业法>>,法律出版社1997年版,第296页.

[4] 郑立:<<民法学>>(第二版,北京大学出版社1995年版,第95页.

[5] 参见高富平:<<合伙企业法原理与实务>>,中国法制出版社,1997年版,第174页.

[6] 任建新:<<中国经济法讲义>>,人民法院出版社1987年出版,第112页.

[7] 张天民等:<<中华人民共和国合伙企业法适用与研究>>,中国人民公安大学1993年版,第59页.

[8] 史尚宽:<<债法各论>>,荣泰印书馆股份有限公司1982年版,第659页.

[9] [台湾]黄茂荣:<<公司合伙法规判决解释令函体系大全>>,汉荣书局有限公司1981年版,第1473页.

[10] [美]伯尔曼著:<<法律与革命>>,中国大百科全书出版社1993年版,第427页.

[11] 1978年修订的<<法国民法典>>第1842条明确规定,除隐名合伙外,合伙"自登记之日起具有法人资格".比利时法律也作了类似的规定.1994年美国新制定的<<统一合伙法>>也明确肯定,合伙是一个区别其普通合伙人的实体.1995年制定的<<越南社会主义共和国民法典>>第120条第1款规定:"合伙是民事法律关系主体."第2款规定:"合伙具备法律规定的转为法人的各种条件时可向国家主管部门办理法人登记."
[12] "除简易合伙外,起字号的合伙组织应当具有民事主体资格.因为,这种合伙组织由合伙协议和合伙组织两部分构成.从内部讲合伙是一种合同关系,从外部讲,合伙是一种经济组织.合伙财产因存在合伙关系而结为共有财产,从而具有团体财产的性质,合伙利益是普通合伙人的共同利益,从而是一种团体利益." 孔祥俊著:<<民商法新问题与判解研究>>,人民法院出版社1996年版,第53页.笔者认为如果以<<民法通则>>第37条规定法人应具备的条件来衡量,可以说合伙企业已满足了法人成立的条件.其中具体表现是:(1合伙企业同样以登记注册为成立要件,(2合伙企业以普通合伙人共同出资作为必要财产和经费,(3合伙企业有自己的名称和经营场所,并以业务执行人作为组织机构,(4合伙企业能够以其经营管理的财产,对外独立承担民事责任,普通合伙人的连带无限责任,只是对合伙企业债权人的担保责任.转贴于 免费论文下载中心 http://www.hi138.com