Exploring Companies' General Partnership Qualifications

The problem of partner qualification has always been a controversial hot issue in the theory and practice of our country's Partnership Law, which mainly studies the problem of who or what organizations can become a partner. Domestic and international legislation is consistent on natural person acting as partners, but there is great controversy abroad, especially in China, on the problem of whether or not the companies can become a partner.Article 15 of China's "Company Law" prohibits the companies from becoming investor that are jointly and severally liable to the enterprises invested. In the "Partnership Enterprise Law" of China in 2006, provisions like this are almost entirely negative: Article 2 of the Law points out that "partnership enterprises mentioned in this Law refer to general partnerships enterprises and limited partnerships enterprises set up, in China, by natural persons, legal persons and other organizations in accordance with this Law. Article 3 provides that solely state-owned, state-owned enterprises, listed companies and public welfare institutions, social organizations shall not become a general partner. According to these provisions, apart from State-owned companies and listed companies, the companies can become general partners that afford the unlimited joint and several liability. Sc, there are very different requirements in the "Company Law" and the "Partnership Enterprise Law" on the problem of whether or not the company can become a general partner. In order to make people have a better understanding on the problem of whether or not the company can become a general partner, apply the law correctly, promote the development of companies, partnerships and socio-economic, I consider it necessary to study the problem of whether or not the companies have the qualifications of becoming a general partner so as to clarify the relevant issues.In this paper, the author takes research methods of comparative analysis. On the basis of learning legislative experience related to the general partnership qualifications of companies from other countries and regions, reviewing the legislation evolution of companies'general partnership qualifications in China, and exploring the legitimacy of companies'general partnership qualifications theoretically, the author makes the suggestions of building and improving the relevant system of companies'general partnership qualifications.This paper is divided into three parts, that is, introduction, body and conclusion. The body part is divided into four parts.The first part is mainly about the overview of companies'general partnership qualifications.The second part is mainly about legislative status of companies'general partnership qualifications both at home and abroad and its analysis.This chapter introduces the legislative status of companies'general partnership qualifications in common law and civil law countries and regions eligible for the company, and then analyzes and compares the two kinds of extraterritorial legislative models, that is, the"liberalism"and"prohibited-ism"of companies'general partnership qualifications. This chapter will explain that the"liberalism"model is the legislation trend of company law in modern world. Finally, it will interpret the legislative process of companies'general partnership qualifications in our country and point out that the companies'general partnership qualifications in our country have transferred from the"liberalism"legislative model to the "restricted-ism" legislative model.The third mainly explores the legitimacy of companies'general partnership qualifications theoretically.First the chapter criticizes Chinese scholars'reasons of objecting companies to becoming general partnership, and then proves the legitimacy of companies'general partnership qualifications from four angles, that is, the requirements of company's independent civil subject autonomy, game of fairness and efficiency, game of security and interests, arbitrary specifications of company law. Finally, it comes to the conclusion that we should give all companies the general partnership qualifications in our country.The fourth part is about the suggestions of improving relevant system of companies'general partnership qualifications in our country.The author advocates revising Article 3 of "Partnership Enterprise Law" in 2006, opening the restrictions of companies'general partnership qualifications completely and adopting the"liberalism"legislative model, so as to make companies'general partnership qualifications harmonized in commercial law. Meanwhile, in order to protect the interests of shareholders and creditors better, the author attempts to propose making measures such as establishing and improving the interests protection mechanisms of shareholders and creditors, improving the system of company's appointing general partnership representative, so as to prevent and control the risks of companies investing to general partnership enterprises.