The New Method To Solve The Conflict Of Partnership Joint Debt And Personal Debt

Partner shall bear joint liability for the debts of the partnership in China,andpartners,at the same time as civil subject, shall use its property for repayment to the partner’spersonal debt.It is not hard to see, if the total property of the partner is insufficient to meet theclaims of the two at the same time, the obligee of both of individual partners and thepartnership requires to partner’s personal property and a share he should have in thepartnership to satisfy his creditor’s rights, at this point, the partnership joint debt and personaldebt will conflict.Basically the resolution methods of conflict of partnership joint debt and personaldebt is as the following two kinds of legislative cases:one is the double priority principle,namely the partnership property is firstly used for liquidation of the partnership debt, personalproperty is preferred partner personal debts;the other is the principle of creditor’s rights,namely the partnership creditors seek preferred payments of partnership property and clearoff jointly with the partner personal creditors’s of personal property for the insufficient part.Our country also adopted the principle of dual priority in judicial precedent.This paper will analyze the above two principles from the point of view of thecontemporary theory of legal economics and found that the theory of creditor’s rights andprinciples runs ounter to the principle of "wealth maximization", and the dual priorityprinciple also exists some irrationality.We have to admit that if we deal with the conflict ofpartnership joint debt and personal debt in accordance with the principle of dual priority canlead to imbalance phenomenon for debt ratio and this kind of phenomenon is not conducive towealth maximization.Agree to the rules in accordance with the law and economics, the markettrading party,under the same conditions, will choose other trading party.Although it will losethe third person to deal with the trading group,they can make up the trading opportunitiesfrom other trading groups;Partnership and partners are a small part in the economy, the loseof this kind of trading opportunities cannot effectively complement from inside thepartners.In this circumstances, the market can’t allocate the resources to the most cherishedparty, because we don’t rule out that some part of trading opportunities in a partnership or apartner that can play a bigger value.In the long term, this kind of legal system act as a kind of"incentive" factors, but it cannot make resources to be more optimal configuration andmaximize the social wealth. Based on the related theory of posner, in order to overcome theadverse social and economic effect brought by the dual priority principle, the author putforward a beneficial analysis the average rule. The law aims to reduce the uncertainty phenomenon of discharge rate between the creditors,so as to make the partnership serve oursociety better.