On The Legislative Model Of A Partner System

Partnership is most ancient, also is the most foundation join management way. In civil and commercial domain, It only is one kind of civil legal act or commercial act (involves union investment, partnership contract), mainly becomes one kind of merchant (to distinguish in business natural person and commercial artificial person forms a partnership), in the theory and the practice still had many erroneous understanding. At present our country forms the partnership system construction, mainly manifests in "the General principles of the civil law", "Law of partnership" as well as in the corresponding administrative rules and regulations and the judicial interpretation. In the practice coexists the partnership enterprise, registering and founding according to "Law of partnership". is recognized as individual partnership and partnership association according to "the General principles of the civil law" Our country law is short of the unified institutional construction of the partnership contract, our country's "Law of contract" has not stipulated the partnership as the named contract in the subprovision. At present how to solve the legislation conflict in the partnership system, consummates our country's partnership system, becomes system difficult problem which more and more is unable to avoid, therefore this thesis choice has certain theory significance and the practice significance. Present paper writing plans to use the historical method, the comparison method, in holds in the massive literature data base, from the historical transmutation of partnership system, Unifies other mature market economy country's partnership system legislation pattem, constructed the partnership system. Adapted to our country socialist market economy development.The present paper besides the introduction, altogether divides into four parts, more than 30, 000 characters.The first part excavates the partnership system in the historical origin, the author had thought along with the social relations' expansion and the development from the blood relationship to the region relationship, the factual condition which the property is owned jointly, also from the pure family relations to the general property relations development, and the system changed into one kind of contractual relationship. In this foundation, the author has discussed the first system expression which forms a partnership, the contract of partnership in Roman law performance, as well as partnership system influence to the entire continent legal system country. This part of author also has made the discussion of forming a partnership the main body and the corresponding system development, and has carried on the detailed proof to the legal status and grouping and subjecting of the partnership.The second part has compared with the various countries' partnership system pattern the author centers on the continental legal system and the Anglo America legal system in the legal technology and the legal culture difference, and has carded on the inspection separately with the parternership system in continental law under the system of separation of civil and commercial codes, as well as in continental law under the system of combination of civil and commercial codes, and the Anglo America legal system's traditional partnership system. The author thoughtThat under the system of separation of civil and commercial codes, partnership generally divides into civil partnership and commercial partnership, is suitable to the civil code and the code of mercantile law or the related commercial special law separately. Under the system of combination of civil and commercial codes, the partnership is stipulated unify in the civil code, will include dormant partnership all to form a partnership, will unify in the stipulation of "obligation arrange", the contract of partnership in it. But in its trading special law "Law of corporation" had stipulated "full partnership" and "limited paternership by shares" takes as the independent supplement. But the Anglo-America legal system country does not have the civil code, but in the practice will divide the partnership into ordinary partnership and limited partnership. The third part has carried on the analysis of the partnership system legislation pattern's present situation in our country The author has analyzed our country has not made the official stipulation of "parternership contract" in the contract provision from "Economical Law of contract" in 1980, to "Law of contract" in 1999, causes the partnership contract nameless, which is originally to be supposed to belong suitably with the contract of sales status forms this is our country have the foundational system flaw in the parternership system, in partnership's standard aspect, it is also quite chaotic, the law of enterprise stipulates the legal person with limited liability cannot become the partner, the general principles of the civil law stipulated the legal person may carry on partnership association, and may not undertake the joint and several liability. Our country's partnership enterprise. Legislation, in the style picks the Anglo-America law, but the concrete provision legislates basically according to the continental law's full parternership legislation.The fourth part, in studied the foundation that our country's civil and commercial legislation to be supposed to persist the system of combination of civil and commercial codes, carded on the bold tentative plan of the pattern choice of parternership to our country, proposed our country will be supposed to take the future civil code compile as a turning point, revised "Law of contract", make the unification stipulation of partnership contract and contract for dormant parternership; revises "the General principles of the civil law" the legislation of establishment condition in artificial person will remove the invest human's limited liability from the establishment condition in the artificial; revises "Law of corporation", increase the legislation of unlimited partnership and limited parternership by shares, substitutes for our country's present "Law of enterprise".