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 安氏财经评论：学习2006年《合伙企业法》笔记和问题——与律师和其他感兴趣的朋友们商榷：有限合伙企业终于在中国诞生了! |
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安普若
[博客]
[个人文集]
头衔: 海归元勋
声望: 大师
性别: 
加入时间: 2004/02/21
文章: 26038
来自: 中国美国的飞机上
海归分: 4196257
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作者：安普若 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
安氏财经评论：学习2006年《合伙企业法》笔记和问题——与律师和其他感兴趣的朋友们商榷：有限合伙企业终于在中国诞生了，万岁！
《中华人民共和国合伙企业法》已由中华人民共和国第十届全国人民代表大会常务委员会第二十三次会议于2006年8月27日修订通过，自2007年6月1日起施行。
老的《合伙企业法》是1997年2月23日第八届全国人民代表大会常务委员会第二十四次会议通过的。
比较新法和老法，最大的差别就是多了“有限合伙企业”的规定。
以下是读法笔记：
1。合伙企业可以是自然人、法人和其他组织设立的（1997年《合伙企业法》没有讲）。
这就是说，可以成立一个有限责任公司，然后用这个公司当普通合伙人，再成立合伙企业。
2。合伙企业分为普通合伙企业和有限合伙企业。（1997年《合伙企业法》没有有限合伙企业）
有限合伙企业终于在中国诞生了，万岁！
3。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。 （1997年《合伙企业法》没有）
4。国有独资公司、国有企业、上市公司以及公益性的事业单位、社会团体不得成为普通合伙人。——但是可以作为有限合伙人！
为什么国有企业、上市公司不能作为普通合伙人呢？美国好像没有规定上市公司不能当普通合伙人吧？有谁知道，请赐教！
5。合伙企业的生产经营所得和其他所得，由合伙人分别缴纳所得税。——分别纳税！
好！
6。1997年《合伙企业法》中规定：合伙企业在其名称中不得使用“有限”或者“有限责任”字样。 2006年《合伙企业法》中没有此规定，但是规定：合伙企业名称中应当标明“普通合伙”字样。 特殊的普通合伙企业名称中应当标明“特殊普通合伙”字样。有限合伙企业名称中应当标明“有限合伙”字样。
所以，以后的基金的名称应该是“安普若基金有限合伙公司”，还是“安普若有限合伙基金”？
7。有合伙人认缴或者实际缴付的出资——新法里有“认缴”这个说法。老法里没有。
“认缴”就不一定是实际缴付。
8。合伙人可以用货币、实物、知识产权、土地使用权或者其他财产权利出资，也可以用劳务出资。 ——可以用劳务出资，1997年《合伙企业法》没有！
有限合伙人不得以劳务出资。也就是labor capital。
那么注册时还需要注册资金吗？
9。新增加了第四十一条：合伙人发生与合伙企业无关的债务，相关债权人不得以其债权抵销其对合伙企业的债务；也不得代位行使合伙人在合伙企业中的权利。
新增加了第四十二条：合伙人的自有财产不足清偿其与合伙企业无关的债务的，该合伙人可以以其从合伙企业中分取的收益用于清偿；债权人也可以依法请求人民法院强制执行该合伙人在合伙企业中的财产份额用于清偿。
人民法院强制执行合伙人的财产份额时，应当通知全体合伙人，其他合伙人有优先购买权；其他合伙人未购买，又不同意将该财产份额转让给他人的，依照本法第五十一条的规定为该合伙人办理退伙结算，或者办理削减该合伙人相应财产份额的结算。
10。有限合伙企业由二个以上五十个以下合伙人设立；至少应当有一个普通合伙人。这也算就说有限合伙人最多不能超过49个。
11。有限合伙企业仅剩普通合伙人的，转为普通合伙企业。
12。什么是执行事务合伙人？好像《合伙企业法》中没有定义。
13。外国企业或者个人在中国境内设立合伙企业的管理办法由国务院规定——那么国外的律师事务所怎么办？
14。新增加了“特殊的普通合伙企业”
特殊的普通合伙企业好像就是美国的LLP。
Limited Liability Partnership
A form of general partnership that provides an individual partner protection against personal liability for certain partnership obligations.
The Limited Liability Partnership (LLP) is essentially a general partnership in form, with one important difference. Unlike a general partnership, in which individual partners are liable for the partnership's debts and obligations, an LLP provides each of its individual partners protection against personal liability for certain partnership liabilities.
In 1991 Texas enacted the first LLP statute, largely in response to the liability that had been imposed on partners in partnerships sued by government agencies in relation to massive savings and loan failures in the 1980s. The Texas statute protected partners from personal liability for claims related to a copartner's negligence, error, omission, incompetency, or malfeasance. It also permanently limited the personal liability of a partner for the errors, omissions, incompetence, or negligence of the partnership's employees or other agents. By the mid-1990s, at least twenty-one states and the District of Columbia had adopted LLP statutes.
The limit of an individual partner's liability depends on the scope of the state's LLP legislation. Many states provide protection only against tort claims and do not extend protection to a partner's own negligence or incompetence or to the partner's involvement in supervising wrongful conduct. Other states provide broad protection, including protection against contractual claims brought by the partnership's creditors. For example, Minnesota enacted an expansive LLP statute in 1994. This piece of legislation provided that a partner in an LLP was not liable to a creditor or for any obligation of the partnership. It further provided, however, that a partner was personally liable to the partnership and copartners for any breach of duty, and also allowed a creditor or other claimant to pierce the limited liability shield of a partner in the same way a claimant may pierce the corporate veil of a corporation and personally sue an individual member of the corporation.
In states that recognize LLPs, a partnership qualifies as an LLP by registering with the appropriate state authority and fulfilling various requirements. Some states require proof that the partnership has obtained adequate liability insurance or has adequate assets to satisfy potential claims. All states require a filing fee for registration and also require that an LLP include the words Registered Limited Liability Partnership or the abbreviation LLP in its name.
A partnership that renders specific professional services may form an LLP and register as a professional limited liability partnership (PLLP). A PLLP is generally the same as an LLP except that it is an association solely of professionals. Each state specifies the qualifying professions for a PLLP. This business form is typically available to attorneys, physicians, architects, dentists, engineers, and accountants. New York's LLP statute restricts eligibility solely to partnerships that render professional services.
A limited liability partnership (LLP) is a form of business organization combining elements of partnerships and corporations. In an LLP, all partners have a form of limited liability, similar to that of the shareholders of a corporation. However, the partners have the right to manage the business directly, and (in many areas) a different level of tax liability than in a corporation.
Limited liability partnerships are distinct from limited partnerships, in that limited liability is granted to all partners, not to a subset of non-managing "limited partners." As a result the LLP is more suited for businesses where all investors wish to take an active role in management. However, some US states have combined the two forms to create limited liability limited partnerships.
Although found in many business fields, the LLP is an especially popular form of organization among professionals, particularly lawyers, accountants and architects. In some U.S. states (including California and New York), LLPs can only be formed for such professional uses.
National variations
United States
In the United States, each individual state has its own law governing their formation.
The liability of the members of an LLP varies from state to state. Section 306(c) of the Uniform Partnership Act, a guideline upon which many state laws are based, grants LLPs a form of limited liability similar to that of a corporation. "An obligation of a partnership incurred while the partnership is a limited liability partnership, whether arising in contract, tort, or otherwise, is solely the obligation of the partnership. A partner is not personally liable, directly or indirectly, by way of contribution or otherwise, for such an obligation solely by reason of being or so acting as a partner." However, a sizable minority of states only extend such protection against negligence claims, meaning that partners in an LLP can be personally liable for contract and intentional tort claims brought against the LLP.
As in a partnership or limited liability company (LLC), the profits of an LLP are distributed among the partners for tax purposes; the LLP is "tax transparent". This avoids the problem of "double taxation" often found in corporations. An LLC differs from an LLP in that the LLP has the organizational flexibility of a partnership. Furthermore, LLCs are more likely to be subject to a state's franchise taxes.
United Kingdom
In the United Kingdom LLPs are governed by the Limited Liability Partnerships Act 2000. An LLP has full limited liability status for all kinds of debts and liabilities of the LLP. In the UK LLPs have a separate legal personality from the individual partners.
Japan
Limited liability partnerships (有限責任事業組合, yugen sekinin jigyo kumiai?) were introduced to Japan in 2005 during a large-scale revamp of the country's laws governing business organizations. Japanese LLPs may be formed for any purpose (although the purpose must be clearly stated in the partnership agreement and cannot be general), have full limited liability and are treated as pass-through entities for tax purposes.
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)
15。新增加了“有限合伙企业”
A limited partnership is a form of partnership similar to a general partnership, except that in addition to one or more general partners (GPs), there are one or more limited partners (LPs)
The general partners
The GPs are, in all major respects, in the same legal position as partners in a conventional firm, i.e. they have management control, share the profits of the firm in predefined proportions, and have joint and several liability for the debts of the partnership. As in a general partnership, the GPs have apparent authority as agents of the firm to bind all the other partners in contracts with third parties. The GPs pay the LPs the equivalent of a dividend on their investment. The nature and extent of this payment will usually be defined in the partnership agreement.
The limited partners
Like shareholders in a corporation, the LPs have limited liability, i.e. they are only liable on debts incurred by the firm to the extent of their registered investment, and they have no management authority. When the partnership is being constituted or the composition of the firm is changing, LPs are generally required to file documents with the relevant state registration office. LPs must also explicitly disclose their LP status when dealing with other parties, so that such parties are on notice that the individual negotiating with them carries limited liability. It is customary that the notepaper, other documentation, and electronic materials issued to the public by the firm will carry a clear statement identifying the legal nature of the firm and listing the partners separately as general and limited. Hence, unlike the GPs, the LPs do not have inherent agency authority to bind the firm unless they are subsequently held out as agents and so create an agency by estoppel or acts of ratification by the firm create ostensible authority.
The limited liability enjoyed by LPs is contingent upon their refraining from taking any active role in the management of the firm. If LPs do assume a management role, they become GPs, and thus lose their limited liability protection and acquire the status of an agent.
The limited partnership in the U.S.
In the United States, the LP organization is most common in the film industry or in types of businesses that focus on a single or limited-term project. They are also useful in "labor-capital" partnerships, where one or more financial backers prefer to contribute money or resources while the other partner performs the actual work. In such situations, liability is the driving concern behind the choice of LP status. The LP is also attractive to firms wishing to provide shares to many individuals without the additional tax liability of a corporation. Private equity companies almost exclusively use a combination of general and limited partners for their investment funds. Well-known limited partnerships include Carnegie Steel Company, Bloomberg L.P. and CNN.
In most states, an LP can elect to become a limited liability limited partnership (or LLLP). In this arrangement, every partner is liable only for the business debts of the company, and not for acts of malpractice or other wrongdoing done by the other partners in the course of the partnership's business. See the Revised Uniform Partnership Act (RUPA) which was finalised by the National Conference of Commissioners on Uniform State Laws in 1994.
The limited partnership in the UK
In the United Kingdom limited partnerships are governed by the Limited Partnership Act 1907. However, English law and Scottish law are distinct on partnerships.
English Law
In English law a distinction should be drawn between a limited partnership and a limited liability partnership. The former are associations of single traders similar to ordinary general partnerships where one or more of the partners has a limited liability in the event of bankruptcy of one of the partners or a law suit being filed. However in English law there must always be at least one general partner who has unlimited liability in a limited partnership. Limited partnerships are not legally separate entities: the partners are jointly and severally liable and any law suits filed are filed against the partners by name.
Limited liability partnerships are a separate class of organisation which are much closer to companies in conception than partnerships.
There has been discussion over whether partnerships operating under English law should be made separate legal entities in the same way as limited liability partnerships are. The Law Commission report on partnership law LC283 suggests that creation of separate legal personality should be left as an option for the partners to decide upon when a partnership is formed. There are concerns that automatically making partnerships separate legal entities would restrict their ability to trade in some European countries and also expose them to different tax regimes than expected.
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)
作者：安普若 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
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 安氏财经评论：学习2006年《合伙企业法》笔记和问题——与律师和其他感兴趣的朋友们商榷：有限合伙企业终于在中国诞生了! -- 安普若 - (13387 Byte) 2006-9-22 周五, 07:36 (3275 reads)
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