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Friends who are not familiar with the Company Law may have questions about the provisions of Article 15 of the Company Law, "". Today we will discuss three small problems derived from this.
Can a company become a general partner in a partnership?
2. Can a company make an equity investment (new establishment, capital increase or equity acquisition) in other companies, and make a commitment to bear joint and several liability for the debts of the invested company?
3. Can a company establish a partnership contract relationship with other civil entities (natural persons, legal persons, other organizations) and bear joint and several liability for partnership affairs?
At the end of the article, we pay attention to the revision of Article 14 of the Draft Amendment to the Company Law, which completely "flips" the original article 15, which should be regarded as a response of the legislation to practice.
The issue concerned two laws, the Companies Act and the Partnership Act. The content of Article 15 of the current Companies Law first appeared in the revised version in 2005. Enacted in 2006 under the Partnerships Act, provisions relating to this issue include:
Article 2.
。
Article 3
According to the above provisions, does this mean that in addition to the special subjects provided for in Article 3, other companies can become general partners? The answer given in judicial practice is yes.
At present, judicial practice generally believes that the provisions of article 3 of the Partnership Enterprise Law are special laws and subsequent laws, and the provisions of article 15 of the Company Law are common law and preceding law, and according to the principle that special laws are superior to common law and subsequent laws are superior to previous laws, and according to the provisions of article 3 of the Partnership Enterprise Law, other companies can become general partners.
There are two other exceptions, one is that the company needs to obtain the corresponding qualifications as a GP of a special industry (private equity fund), and the other is that the company cannot become a partner of a special general partnership (law firm, accounting firm).
The object of such debt liability may be the original shareholder or an external creditor. Regardless of the object, it is generally considered that this is a contractual act, and its legal effect is judged in accordance with the relevant laws and regulations of the contract. At this time, it may be deduced that the provisions of Article 15 of the Company Law are effective provisions or administrative provisions, which are generally considered to be administrative provisions and do not affect the validity of the commitment. In practice, there are also a large number of shareholders who make commitments or provide guarantees for the company's debts, and if the validity of the commitment is denied as a result, it will be contrary to practice.
However, it should be noted that the commitment here should be specific to a specific debt, the creditor and the amount of the debt are determined, if it is a commitment to the repayment of the debts of future unspecified creditors, it breaks through the principle of limited liability of civil company law and disguises the establishment of unlimited liability companies, although the company law system of some countries allows the establishment of unlimited liability companies, but the mainland is still a limited liability system, so I am afraid that this situation cannot be judicially recognized.
The "partnership contract" has been added to the typical contract of the contract part of the Civil Code, and from then on, the partnership contract relationship is not limited to the individual partnership stipulated in the original General Principles of Civil Law, the scope of the subject has been expanded, and the company can also become a partner in the partnership contract.
Compared with the partnership, the form of the partnership contract is simpler and more flexible, and the partners are only a contractual relationship, and there is no need to register the partnership.
Article 973 of the Civil Code provides that. According to this provision, as long as it is recognized as a partnership contractual relationship in the nature of the legal relationship, the company, as a partner, shall bear joint and several liability for the partnership debts.
What is the relationship between the above provisions of the Civil Code and the provisions of Article 15 of the Company Law? There is no relationship between the two, Article 15 of the Company Law stipulates that the company is restricted from investing in other enterprises, while the partnership contract is only a loose cooperative relationship and does not form an enterprise entity.
So can the partnership relationship be used to break through the Company Law or other restrictions? It is not so simple, there are also provisions on the invalidity or revocability of the contract as a constraint, such as the use of a partnership contract to substantially carry out private fund activities, but not obtain the corresponding qualifications, the contract is also at risk of invalidity. Therefore, as a partner of a partnership contract, the scope of application of the company is also limited.
4. Article 14 of the Draft Amendment to the Company Law
Article 14 of the recently published Draft Amendment to the Company Law amends Article 15 of the current Company Law, which logically reverses, and the amendments are as follows.
Article 14 A company may invest in other enterprises;
In the current law, prohibition is general and permission is the exception, and the revised draft has changed to allow is general and prohibition is the exception. Judging from our analysis above, this modification is also in line with the needs of practice, which is conducive to further tapping the company's investment potential and enhancing economic vitality.
