| Chinese partnership enterprise law revised in 2006 and introduced the limited partnership system,more than a decade,the limited partnership system with its unique charm,has been widely used in the economic life,especially in the field of investment.Thinkingof the different knowledge and ability of wealth managers and investors to differentiate different responsibilities,limited partnership system distribute different partnership rights for LP and GP,to create better value for the partnership.LP does not participate in the partnership affairs,GP have the most direct enforcement to partnership affairs,which makes the partnership with the most efficient decision-making procedure,the implementation of partnership affairs professional GP can catch fleeting investment opportunities,and obtain good investment effect.But Chinese partnership enterprise law to give little the power to LP,the GP's skill level are uneven,except for a lot of GPs with good professional ability,there are also many "Troupes" with poor skill.Investor education is so feeble in our country,that the LP is difficult to identify who is high-quality asset managers,which is good investment event.Due to lack of GP faith obligations,the LPs' right infringement practices occurred,especially in which LP with relative strength of the partnership.On the contrary,position on the strength of the surface of the LP is not directly involved in the implementation of partnership affairs in accordance with the law,but the essence of whichthrough some agreement and system arrangement isfully involved in the implementation of partnership affairs.Both oppositecompletely deviate from the system of the original situation to some extent has raised the rule of law in our country,this is a signal of danger,suggests that related legal system in China cannot meet the needs of economy development.In the practice of limited partnership in our country,internal control concept has experienced a series of transformation.In the beginning,the idea of capital-decided is stubborn,so LP is not willing to the give the power of partnership affairs to the GP,with the help of some internal system arrangement,LP hold the decision-making power.It seem to control the risk,but because of the low efficiency of decision making,them partnership affairs did not run well.Without business,even if the risk was under control,cannot bring investors profit which is deviated from the original intention of investors.So in the later period of time,the LP to try to give the power to GP.But because of the bad creditenvironment and GP is lack of faith obligations,LP didnot gain in many cases.That made the LP have to consider power back,so there aremany of the limited partnership enterprise architecture "investment decision committee" "investment counsel committee" etc,in which LP by delegating,in the case of don't break the law to participate in the implementation of partnership affairs.LP for the participation of partnership affairs is also a kind of helpless choice,on the one hand,GP share falling and the other years to enhance the professionalism of the partnership affairs,the relationship between the GP and LP by Commenda trade partner,evolved into the management of the contract and the investor relations,which to some extent to co.,LTD.,the relations between shareholders and the board of directors in the system,and the GP and LP is through the limited partnership in the partnership agreement of the partnership affairs executive power are a mandate,so GP's faith and loyalty diligence obligations became very important for business activities.In the company,the shareholders' committee put forward strict requirements for the management and some will have a significant impact on the company's items included in the scope of the shareholders' committee decision,to do part of the business activities of control to the company,at the same time in the modern company management system "bonus" and "commission" system,put the interests ofmanagement with the company's operating bundled together,so to management to form a good incentive,it is similar to the GP of large proportion in the limited partnership is higher than its share of receive dividends.Therefore,whether the shareholders in the company system or LP in limited partnership,the property of ownership is the same,and the source of its thinking mode has the impulse to control.But with the limited partnership and limited partnership system of the continuous expansion of private equity fund,a single LP for partnership affairs in more and more difficult,more LP master decision-making is often appear the situation of all tastes,if continue to indulge the LP overhead GP,LP to master not only the starting point of limited partnership affairs decision-making power can't meet,and some GP may only be a LP,actual control in the multiple and formed some conflicts of interest between the LP,let the limited partnership governance becomes more complex,is not conducive to the orderly development.For the introduction of the limited partnership system in China is earlier than the partnership enterprise law amended in 2006,when some parts of the special economic policy environment for the system had regional regulation: 1994 of the regulations on the Shenzhen special economic zone of the partnership of article 55 of the limited partners is limited to amount to bear the liability for the debts of the partnership.This may be the earliest record of the limited partnership system in our normative legal documents.Then,in 2001,Beijing promulgated and implemented the measures on limited partnership management,which stipulates that LP does not participate in the implementation of partnership affairs but enjoys the supervision right and the right to know of the partnership.LP and execute the partnership affairs,as GP and assume unlimited liability.Therefore,until the amendment of the partnership law in 2006,the limited partnership system is truly established in the legal system of our country.The current limited partnership system in China is mainly regulated by the third chapter of the partnership law.Power boundary about LP to partnership affairs,paragraph 1 of article sixty-eight of the partnership affairs of the executive power endowed with GP,LP without conducting partnership affairs or foreign representativelimited partnership;But it is not entirely to LP is excluded by the limited partnership,the supplementary provisions in paragraph 2 of the eight kinds of LP would have a close relationship with the limited partnership but not as the implementation of the limited partnership affairs,most of which terms are LP should have the power of the right.Relatively special should be the second point,namely the LP to enterprise's management recommendations,this rules are general,only that the LP advice does not constitute to the participation of the partnership affairs,so advice in what way,what kind of advice and suggestion if very key and adopted by GP,which has great influence on the limited partnership,the resulting consequences,and so on,whether it is the details or subsequent effect,all have no.So the main problems ofthe law for LP execute the partnership affairs are: the LP suggests rules are short of partnership affairs,become a mere formality,the lack of specific operation guide.The listed 8situations cannot face a variety of practical problems,and the eight class itself involves only an LP is the most basic right to know and relief way,an increasingly large scale in the limited partnership and the partnership internal relations more complex cases,some behavior of the LP in essence is to exercise its right to know and suggests.There were two seem to be has little to do with the power of the LP boundaries,but also in affecting the LP power boundary expansion,the necessity of system innovation makes unlimited liability risk actually has been "limited",and potential conflicts of interest to a general partner did not have relevant regulation.The partnership enterprise law of China is largely transplant the uniform limited partnership act of 1985,the content of the revision and the limited partnership is widely used in the commercial activity,the exploration for the limited partnership system is very advanced,so the research of the legislation logic,and its range of LP power evolution for optimizing our country's legislation is of great significance.Since its enactment in 1916,the United States limited partnership law has undergone three major changes in 1976,1985 and 2001.From the establishment of the "control rule" to the "safe harbor rule" to establish and perfect,to the abolition of the "control rule",from the United States of the corrections to the uniform limited partnership act,we see a trend to relaxed LP power range.In addition,as a representative of thedeveloped commercial society of Singapore as well as the known as "private paradise" the provisions of the relevant laws of the Cayman islands have also the partnership enterprise law modification in our country brings revelation.It is mainly that the strictness of the "safe harbor" is not conducive to the protection of the rights of LP,and the existence of "control rules" and "trust rules" is reasonable and necessary.Thinking about the GP "absence" and "offside" LP and the reasons behind it,on the one hand,the lack of GP faith obligations lead to weak LP damaged power,on the other hand,some strong LP through clever system architecture of the actual control of the partnership affairs,these do not conform to the limited partnership system of the original situation constantly,it shows that the provisions of the partnership enterprise law in our country have already can't meet the needs of social practice,we should to make some changes in a timely manner to the relevant regulations and perfecting: first is to improve the rules of "safe habor",while expanding the range of safe harbor and give some allowed in the "partnership agreement" autonomy of tolerance;Secondly,the "control rules" should be retained and strengthened,and some special cases should be stipulated in the system of LP breakthrough limited power.Finally,trying to introduce the concept of "actual controller" to prevent some LP from damaging the interests of counterparties or other LP.It is hoped that a series of changes can make the partnership law of our country more suitable for practical operation,thus better serve the healthy and stable development of China's economy. |
PDF Full Text Request