On The Silent Partners On The Nature And Mode Of Legislation

Dormant partnership is an important legal system in modern civil law, and it greatly accelerates the economic development of western countries. Many countries and regions, especially the ones of the Civil Law system, have already special legislation. As some scholar said, issues on dormant partnership are obsolete, and even not worth study. There is the existence of dormant partnership, but legislations to regulate it are absent. So, the nature of dormant partnership is ambiguous, which make the judicature has no legal criterion while resolving the problems, and always make inconsistent judgments. In this thesis, the author thinks it necessary to build the dormant partnership system, and gives her own minds on how to build it.The thesis is divided into four sections:As the center of this thesis, the first section mainly introduces the property and character of dormant partnership. This section analyzes three points: the concept, character and the distinctions with other related system. Firstly, the author confines both the concept and legal character. Secondly, in the analysis of the property, the author knows that most of modern countries have not defined the nature of dormant partnership in their civil or commercial law. But we can still get the underlying meanings from their legislation system, which means that dormant partnership is an inner contract which exists between dormant and nominal partner. Finally the author makea comparative study about general partnership, consumer credit, limited partnership by shares, contract of service, temporary association, limited partnership. They have similar aspects as well as different ones.The second section mainly talks about the analysis in value to build dormant partnership in our country. Two points are mentioned here: the controversy on this issue and the analysis of the advantage and disadvantage. Firstly, about the controversy, the author introduces the viewpoints of the assentient and the discommender. Secondly, in the analysis of the advantage and disadvantage, the author talk about that it is very necessary to build dormant partnership in the civil legislation of our country. The author rebuts the point of disadvantage. At last, the author indicates that we should recognize dormant partnership in the civil legislation of our country, but firstly we should remove its disadvantage by some assistant, effective measures.The third section talks about the legislation mode of dormant partnership. Firstly, the author makes a comparative study about the civil legislations respectively in the Civil Law system countries. Secondly, through the analysis of our related law, the author concludes that there are no substantive legislations of dormant partnership in our country. Thirdly, according to the Chinese Law in operation, the author enumerates some choices, which include that dormant partnership can be established by legislative and judicatory interpret, Limited Partnership Law and the futureCivil Code, etc. We can build dormant partnership system in virtue of them. Dormant partnership is a contract, which should be arranged in Contract Law. For some reason, dormant partnership is excluded from the new Contract Law. And Contract Law has just enacted, it will not be emended so soon. Fortunately, new Civil Code is being compiled. The author take it as a chance one in a thousand arranging dormant partnership in contract chapter as a part of New Civil Code.The forth section is the legislation proposals. This section is the thesis 's innovation. On the basis of historic, comparative and logic study on the above three sections, the author makes some legislation proposals for the optimization of our country' law.