| The Partnership Enterprise Law which was amended and promulgated on August 27, 2006 increases the limited liability partnership law. The new law imposes some limits on the joint and several liabilities undertook by the partners, which will influence significantly the benefits of the partners and its creditors in specific industries. In the existing legal system in our country how to enforce it will become a problem to be solved urgently. Whereas this, in this article I will discuss some problems which will arise in the process of law enforcement and give my advices. I think my article will give some helps to the courts and legislator when they solve disputes or revise the law.Through comparison I discuss some difficulties and problems arising in the practice of the related law. After analyzing different theories about the similar problems home and abroad, using the case analyzing method I reify the problems which will come out in the course of law practice in our country. And then, I give my advices for the courts and legislator.Moreover, when analyzing and comparing the related law I use the game theory, which will be a very big fuss to the traditional legal researchers who hire conceptions and formal logic absolutely in their studies. This article carries on the analysis through two ways: one way is through the legal transplant angle, discussing the correlation system and its evolution and correlation stipulation in US on the comparison with the same system introduced in China. The other one is through the existing related legal concept and system, especially through the discrimination of breach and tort and definition of intentional or serious wrongful act, discussing the problems likely arising after the system being introduced into China.This article can be divided into five parts. The first is introduction. It mainly discusses the birth and development of US partnership enterprise law and its transplant into China. Through studying the background of creation of the law and the whole process of its birth, with the game theory I analyze the internal rationality of its creation. Next, I describe the process of its transplant into China. Based on the development of related industries in our country, I analyze the different functions of accountants and lawyers for it in China. Through analyzing the disadvantages of the old law, I tell the rationality of its transplant into China. Finally, after questioning the way of its transplant, we go to the second part of the article.The second part is about the US' experience of the law enforcement of limited Partnership enterprise law. It wants to describe the problems and its judicial countermeasures in the process of the law enforcement in US under the influence of pragmatism. Next, after briefly introducing the law which is transplanted into our country I will present some problems which likely come out in the law practice. And then, we go to the third part.The third part is about the discrimination between breach and tort in law enforcement. This is the key part in this article. First, using the method of comparison I describe the related theory in the study of the tort and breach. Next, I hire some cases to validate them. Last, I give my conclusion.The fourth part is about the definition of intentional and serious wrongful act. This is the second key part in this article. Having some slightly differences with the above three part, after describing some related theories in our country I analyze the faults of them with the case analyzing method. And then, recalling the experience of US, I analyzing the functions of rules of definition of intentional and serious wrongful act used by US'courts in solving similar disputes.The fifth part is the conclusion. In this part I give my legislative advices and judicial suggestions. |
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