国际商法 Part 2 Law of Enterprises商主体法

2.3 Partnership agreement Not legally required in many countries, including UK, but having one will be of some advantage. A partnership agreement sets out the purpose of the partnership, and the rights and duties of the partners. The agreement should also specify the amount of capital that each partner should put into the business.
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Article 4 A partnership agreement shall be lawfully
concluded, in written form, on the basis of agreement
reached by all the partners through consultation.合伙协
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Implied authority: Unless he has knowledge to the
contrary, another party can assume that a partner has the usual authority normally possessed by partners in the type of business carried on by the partnership Where a partner acts outside of the scope of their authority, the partnership is only bound under the circumstances of apparent authority. Should however the third party be aware of a partner acting outside of their express powers, then the partnership is not bound.
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Disadvantages:
• Same legal identity; • Expansion only possible by ploughing back the profits; • Short life; • Lack of necessary skills by the trader; • Others like lack of diversification, absence of economies of scale and problems of raising finance.
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The partnership referred to herein shall mean a for-profit association established within China in accordance herewith pursuant to the partnership agreement concluded by all the partners, whereby the partners jointly contribute capital, jointly operate the business, jointly share in the incomes and the risks, and are jointly and severally liable for the debts of the partnership.
Advantages of trading as a sole trader:
• No formal procedure; • Independence and self-accountability; • Personal supervision of the business and effective operation; • All profits accruing to the sole trader.
议依法由全体合伙人协商一致、以书面形式订立。
2.4 Termination/dissolution解散
Expiry of a fixed period for which the partnership was formed. Partner gives notice to leave. Completion of the express purpose for which the partnership was formed. A new partner is admitted into the partnership
2.6 Duties The relationship among the partners is a
fiduciary one of “utmost good faith”. In
addition to the general fiduciary duties, there are specific statutory duties:
2.2 Features of Unlimited Partnership (P2 Nhomakorabea-26)
• • • • •
Consisting of partnerships Based on partnership agreement Right in management and share of profit Unlimited liability for partnership debt Partnership not a separate legal person
1. Sole Traders独资企业
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• Relevant law: • 《中华人民共和国个人独资企业法》由中华人民共和国第九 届全国人民代表大会常务委员会第十一次会议于1999年8月30 日通过，自2000年1月1日起施行。
• 第二条
本法所称个人独资企业，是指依照本法在中国境内
设立，由一个自然人投资，财产为投资人个人所有，投资人 以其个人财产对企业债务承担无限责任的经营实体。
• 中华人民共和国个人独资企业法
A sole trader owns and runs a business, such as retail trades, small scale service industries, small manufacturing and craft industries.
The person and business are viewed as the same entity.
案例讨论：
• 甲投资设立A个人独资企业，A企业以自己的名义与B企业签订 买卖合同，B向A发货，A向B支付10万元货款。如果A企业的 资金不够支付货款，全部财产只有4万元。对于企业不能支付 的6万元，应该由谁来承担？由此说明什么问题？
2.5 Payment of debts upon dissolution
When a partnership is dissolved, the assets of the partnership are used to pay off the liabilities of the firm. If the assets of the partnership are less than its liabilities, the partners in an ordinary partnership are personally liable to contribute their own personal assets to help pay the liabilities in full.
Part II Law of Enterprises 商事组织法
主要问题
Three Types of Enterprises About each types of enterprises:
• • • • • Separate legal personality or not?是否具备独立法人资格身份 Procedure of incorporation? Capital? Management? Winding up?
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2. Unlimited Partnership普通合伙
2.1 Definition: The Partnership Act 1890 (PA 1890): “relationship
that subsists between persons carrying on a business in common with a view to profit”.
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• 第八十五条 合伙企业有下列情形之一的，应当解散： • （一）合伙期限届满，合伙人决定不再经营； • （二）合伙协议约定的解散事由出现； • （三）全体合伙人决定解散； • （四）合伙人已不具备法定人数满三十天； • （五）合伙协议约定的合伙目的已经实现或者无法实现； • （六）依法被吊销营业执照、责令关闭或者被撤销； • （七）法律、行政法规规定的其他原因。
(Article 2, Partnership Law of the People‘s Republic of China, 1997 )
• 第二条 本法所称合伙企业，是指自然人、法人和其他组织依照 本法在中国境内设立的普通合伙企业和有限合伙企业。 • 普通合伙企业由普通合伙人组成，合伙人对合伙企业债务承担无 限连带责任。本法对普通合伙人承担责任的形式有特别规定的， 从其规定。 • 有限合伙企业由普通合伙人和有限合伙人组成，普通合伙人对合 伙企业债务承担无限连带责任，有限合伙人以其认缴的出资额为 限对合伙企业债务承担责任。
2.8 Authority权限 Partners are deemed to be agents of the firm, and the authority of a partner may be actual or implied . Express authority: authority of each partner to take decisions for the business, and enter into transactions with other parties, as may be specified in the partnership agreement.
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2.7 Rights of the partners The rights of the partners in a partnership should normally be set out in the partnership agreement basically include: • making key decisions that affect the business. • to share in the profits of the business • to examine the accounts of the business • to be treated in good faith by other partners • to veto the admission of a new partner
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• Duty to disclose: all partners must render true accounts and full information in matters relating to the partnership. 披露义务 • Duty to account: partners must account for all benefits obtained from any transaction related to the partnership.如实汇报收益义务 • Duty not to compete: a partner who competes against the partnership without consent will be liable for all such profits made. 禁止竞争义务