The Difficulty And Way Out Of Corporation As General Partner

The question of whether the company can be a general partner is in dispute for a long time in the theoretical circle of our country.In 2006,the partnership enterprise law revised the right capacity of the company to serve as a general partner.However,the law only answers the question of whether it is allowed,and does not make more detailed regulations.As a large number of companies invest in partnership and serve as ordinary partners,more and more problems are urgently needed to respond to the law.On the basis of affirming the rationality of the company as a general partner,this paper further probes into some difficulties in the current practice and legislation,and examines the experience of foreign legislation in combination with the theories of company law,partnership law and civil law,and tries to provide an effective way for the current predicament.The first part of this article focuses on the rationality of a company as a general partner from two aspects: Theory and practice.First of all,it distinguishes the view that the limited liability of shareholders and the unlimited liability of the company in order to criticize the company partner’s loss to the unlimited liability of the partnership,and expounds the theory of corporate rights and the theory of asset credit to provide a theoretical pillar for the company to participate in the partnership.Secondly,it analyzes the advantages of company as a general partnership from the practical point of view.And analyzes the foreign legislation.Finally,it is concluded that allowing companies to become general partners is the inevitable result.The second part of the article focuses on the plight of the company as a general partner.As a general partner,due to its nature and legal status,the company has many differences from partnership business,and the provisions of the partnership law of our country are basically aimed at the natural partners,and therefore there are inevitably exist some incongruous places.This section analyzes the characteristics of partnership and company,the current laws and regulations,finds out that when the company serves as a general partner,there are difficulties in the protection of the interests of the creditor,the mode of management and the change of the partner’s identity.Based on the difficulties which is found out in the second part,the third part of the article puts forward the corresponding way out of.The double priority and the creditor’s Congress system are introduced for the disequilibrium of the creditor’s interests;the differences in the two party management modes and the agency risk are put forward to build the partnership declaration system and the trust obligation of representative who was sent by the company.As the trust problem caused by changes of corporate control between partners,the paper proposes to solve by the notification and withdrawal mechanism.