General partnership general partnership "special"
special general partner liability
Summary: 2006 revised "Partnership Enterprise Law," the first paragraph of Article
57 provides for a special general partner of the form a partnership. In the law firm of
such clients and practitioners with particular emphasis on personal loyalty to a
relationship of trust between the business organization, to all partners bear unlimited
joint liability of the way, no doubt the business can improve customer confidence, and
enhance the business market competitiveness, but this requirement does not apply to
all lawyers and matters. In the light of their own choice for when a special general
partnership, but also regulate the activities of the lawyers, lawyers run things by the
organization to conduct a comprehensive innovation system.
Key words: special general partner; fault liability; limited liability
1991 years, a "bill to help lawyers", a limited liability partnership law, passed in
Texas. China's 2006 revised "Partnership Enterprise Law" into the United States
limited liability partnership system whereby the Chapter VI, and named the "special
2007 revision of "Law Law" in Article 15, law firm can be used to establish a special
form of general partnership. Special general partner biggest "special" in the fact that
"the Partnership Enterprise Law," the first paragraph of Article 57 stipulated: "That
one partner or several partners in the practice activities caused deliberately or by gross
negligence partnership debt shall bear unlimited joint and several unlimited liability
or responsibility for, the other partners in the partnership for its share in the property
is limited to assume responsibility. "However, the simple requirement of 76 words,
there are many is not clear, will result in the application in practice difficulties, is this
paper, the characteristics of legal practice, on which detailed the content and analysis,
and try to make some practical suggestions.
1, fault liability
fault lies in the identification of Responsibility for fault identification, how to
identify the first paragraph of Article 57 of the deliberate and gross negligence, in
practice, how distribution of the burden of proof, is trying to solve this problem.
1. Intentional and gross negligence. What behavior is intentional and gross
negligence exists, that is at fault? This is a "limited liability" The introduction of the
key conditions. Lawyers are familiar with legal affairs, providing legal services for
the community of professionals. Thus, in practice, the activities of lawyers in the
practice of performance requirements are higher than the average person's.
, for example, the three letters in Wangbao Fu v. property damage lawyers dispute, the
defendant and the plaintiff's father signed the "took the witness" in the commission
contract, will only send a lawyer to witness a will caused the plaintiff because of the
lack of two more than witness the formal requirements invalid.
court held that: "lawyers and ordinary citizens have the right to file a witness to a
will, but compared with the ordinary citizen, by the lawyers as witnesses, lawyers will
be able to control their own knowledge of the law as the testator services so that a will
meet the legal requirements, this is the price of the testator to pay a lawyer as a
witness against the wish of. the defendant knew the plaintiff father, the purpose of this
commission shall appoint two or more lawyers as a witness to a will, or still others tell
him as witnesses, their wills to enter into force. "From this decree the defendant
should be liable.
Therefore, if the lawyer as a professional practice course in the following
circumstances, a fault can be identified. (1) violation of the relevant provisions of
laws and regulations; (2) violation of the relevant provisions of practice guidelines; (3)
violation of the specific agreement between the parties; (4) violation of similar
practitioners dealing with similar legal affairs with the behavior of the general
2. Oversight responsibilities. Oversight responsibility is fault liability that article a
special form. "Code of conduct for lawyers (Trial)" Article 43 stipulates: "the lawyer
handling matters under its Zhipai support staff error, or remedial measures should be
taken to stop and take responsibility." So, in this case, if This is a matter of practice
activities, while the partner supervising you are "Partnership Enterprise Law" Article
57 of the "intent or gross negligence."
modern, law firms increasingly emphasize team concept. Case Study of Beijing,
according to a 2005 survey, the main mode of cooperation including cooperation in
the main case (39.77%), to pay lawyers based on a system (21.02%), set up temporary
project-based cooperation team (11.74 %), the way to build business cooperation in
the formation of relatively fixed way (11.36%), and by several key partners to share
out the source case (3.98%) and so on. In this type of cooperation existed between the
members of the oversight responsibilities of each other, in general, to each other,
jointly and severally liable. However, if the case of a partner to provide only the
source, in fact not involved in the case of any work, and with the client expressly
agreed in the contract and other lawyers from the law firm responsible agent, you do
not take responsibility.
distinction is to be the young lawyer may be some difficult issues to senior lawyer to
ask someone inside, the views received only suggestive, does not exist between the
general oversight responsibilities. Another survey in 2005, according to Beijing, for
example, 68.01 percent of surveyed firms are implementing a director responsibility
system, while 38.43 percent of the law firm has no fixed management agencies,
primarily the division of labor by several partners management, 69.49 percent of law
firm managers may be renewed, unlimited. Thus partner in the law firm may have
other titles, such as office director, managing partner and so on. Such as "rules of the
internal management of law firms (Trial)" second paragraph of Article 9 states: "The
partnership, co-director of firm lawyers who are not from the non-full-time." But the
title does not mean they are obliged to monitor their " subordinates, "all the practice
of the most routine administrative matters, at this time, we can not over-expand the
oversight responsibilities of partners.
3. The burden of proof. By a "layman" to prove that counsel did not properly fulfill
its obligations, it is very difficult. In this case, the judge can use the principle of
presumption of fault, that the presumption of a lawyer judges fault, unless the lawyers
can prove that their activities do not exist in practice fault.
, for example, Xia in Beijing, Beijing, Beijing Century Oil Co. v. Law Firm
commission contract dispute case, the defendant agency to negotiate the plaintiffs
reached with the military coordination center of the sales contract. It was determined
that this military transfer center is false, constituted fraud, caused the plaintiff loss.
The court held that: "According to law firm for century commissioned contract, has a
review of key center of the main qualifications of military obligations, so the response
advocated by the military coordination center during the remaining evidence." Is not
available, shall be not entirely be obligation to do.
Therefore, lawyers should improve the quality of their practice, and law firm
management should be standardized, to help practitioners quickly form good practice
habits, practice and enhance the correct practice of skills. Implementation of office
automation, use of management software, on procedural matters, such as the
limitation, the limitation of evidence, court dates, etc., set up automatic reminder
mechanism. Meanwhile, the establishment of a unified database of case files, as
evidence of their general counsel has completed all the work. Law firm handling the
case should be made normative process, the guidelines work as a lawyer and publicity
to the client.
second, limited liability
2004 years, a law firm in Beijing because of dereliction of duty by the lawyer,
resulting in huge sums of money being cheated customers, which the three partners by
the court of first instance ruling compensation 8,000,000. The time of lawyers outside
the industry risk-induced "earthquake." Therefore, in appropriate circumstances, to
the innocent partner with limited liability protection is a practical significance.
special general partnership, limited liability to "share in the partnership property" is
limited. Under the "Partnership Enterprise Law" stipulates that the funding partners,
in order to obtain the name of partnership income and other property legally acquired,
are partnership property. But what "share of partnership property" means the time of
fault behavior? Litigation when? Execution time? To be a clear judicial interpretation.
In theory, fault behavior from the time of claims and liabilities have been determined.
But the law firm as an operating entity, the partnership's property, especially to obtain
the name of partnership income and other property acquired according to the law
change at any time, after the proceedings are not being entered at the time to judge the
exact amount. Judicial discretion in the property can be subject to prosecution, but the
evidence is a partner to reduce liability, and malicious transfer of property, should the
transfer of the property included in the compensation part of the property range.
Moreover, firms belonging to non-manufacturing companies, there is no capital
accumulation. According to a 2005 survey, Beijing law firm's annual income level of
between 100-300 million more, accounting for 1 / 4. But here's income includes law
firms and lawyers are the costs. In cost, the firm more than 40%, followed by 10% to
and under the "Partnership Enterprise Law" Article 38, a partnership of their debt,
should be settled with all of its property. Which partners will by changing the way the
partnership agreement, by increasing costs, or increase the proportion of commission,
the "property of the partnership" reduced to a minimum. This will cause "limited
liability" of the abuse of it? Clearly, this is not conducive to long-term development of
the law firm and protection of creditors, to engage in high risk areas of business
lawyers may not wish to do so. But first and foremost a partnership between the game,
contest the final outcome reflected in the partnership agreement.
According to the 2005 Beijing Law Firm of the survey, while the vast majority of
law firms have developed signed a "partnership agreement", a small law firm with
"partnership agreement" do not have a signature; Most of those surveyed by the
"partnership agreement" basically sound, but still unsatisfactory, some of the
partnership agreement is very important and even essential terms and conditions, such
as the occupation withdraws from the partnership approach and in many surveys of
the partnership agreement by not yet include; 44.26% of law firm partner meeting is
not held on a regular basis the system, more small law firm for one year, or basically
do not convene a meeting held in partnership; 80.07% of law firms are not
implementing partner classification system; 40.53% of the average law firm partner
cost-sharing; 92.87% of law firms still do not consider the issue of the retirement
and therefore, should be sufficient attention to the development partnership
agreement. When the law firm into a special general partnership, the partners should
be full consultation, to consider system cost, the Exchange and the individual business
situation, re-combination of factors and so difficult to reach an agreement, and within
law firms The corresponding rights and interests change, to develop a more
comprehensive partnership agreement.
3, the conclusion
partnership is an ancient form of enterprise. In the law firm of such clients and
practitioners with particular emphasis on personal loyalty to a relationship of trust
between the business organization, to all partners bear unlimited joint and several
liability of the way, no doubt to enhance customer confidence in the enterprise and
enhance the business market competitiveness. But as the business has grown, people
between the partners has been a lack of co-sexual, not even met each other, the
introduction of a special general partner just to avoid this risk. However, this is not
something that applies to all lawyers. In the light of their own choice for when a
special general partnership, but also regulate the activities of the lawyers, lawyers run
things by the organization to conduct a comprehensive innovation system, can only
increase the maximum degree of competitiveness of enterprises and prosperity of the
socialist market economy.
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Press, People's Publishing House, 2006.
 Beijing Municipal Lawyers Association. Beijing Law Firm Management Survey
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 Sun Yan. On the limited liability partnership - On The New "Partnership Act"
limited liability partnership on the provisions of [J]. the rule of law and society, 2007,
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