中韓兩國有限合和法律制度比較硏究
분야
사회과학 > 법학
저자
( Zhong Fa Ma ) , ( He Wei Lee )
발행기관
단국대학교 법학연구소
간행물정보
법학논총 2013년, 제37권 제1호, 459~482페이지(총24페이지)
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    The legal regime of limited liability partnerships in modern time came from common law system and has played very important role in the current economic development. However, its earliest form might have arguably been originated from the societates publicanorum which arose in Rome in the 3rd century BC, and in medieval Italy, it developed into a business organization known as the commenda appeared in the 10th century. Limited liability partnership, with potential vitality in the current time, is a kind of business organization which may be properly applied in the high-tech industry or in the field of venture investment: to provide a relatively ideal cooperation mechanism for the technology holders or the managers with full experiences who are in great need of capital and the people who own lots of money but have no way to invest. China and Korea have separately established its own legal regime of limited liability partnership to meet the demands of their economic development on the basis of combining their national conditions with references to the experiences from other countries, and China made the related laws earlier than Korea. The legal regime of the limited liability partnership in China describes definitely the provisions on the partners and agreement of a limited liability partnership, investment or capital contributions of a limited partner, management of the affairs of a limited liability partnership, distribution of the profits, a limited partner`s assigning his share of property in the limited liability partnership, a new limited partner joining in or a limited partner retiring from the partnership, and a general partner to become a limited partner or vice versa, etc. The provisions on limited liability partnership in Korea`s Commercial Law focus on the definition of a limited liability partnership, items of an agreement of a limited liability partnership, registration of a limited liability partnership, managing partner of a limited liability partnership, liability of a limited partner, assignment of a limited partner`s share of property, applying other provisions to a limited liability partnership, and penal provision. The legal regime of a limited liability partnership is composed by these provisions and the related stipulations in civil law and commercial law. The distinguished difference between the legal systems on limited liability partnerships of China and Korea lies in the distinctions of legislative forms. China has a separated law with the title of Law of the People`s Republic of China on Partnerships in which there is a specialized Chapter containing 25 articles to describe the provisions on limited liability partnership, and it also has some other provisions concerning limited liability partnerships in other laws; while Korea only has 8 clauses concerning limited liability partnership which is demonstrated by the Clauses from 2 to 9 of Article 86 in Commercial Law, and it applies more provisions from commercial law and civil law. In China, partnerships and limited liability partnerships are regarded as business organizations, and the laws on them are parts of the laws on commercial subjects; while in Korea, they are considered as commercial activities, and they are integrated into the section of "Commercial Conducts" in Commercial Law. In detailed provisions, the differences are illustrated as the following: in China, the number of partners is more than 2 and less than 50, while in Korea, there is no direct provision concerning the number of partners of a limited liability partnership, and it may be inferred from other provisions that the number shall be more than 2, but there is no ceiling number. As for the agreement of a limited liability partnership, the provisions in China are more specific than those in Korea. In China, the managing partner(s) shall be general partners and limited partner(s) cannot be managing partner(s), but in Korea, the limited liability partner (s) may also act as the managing partner(s). The provisions on registration in Korea are more rigorous than those in China. Those differences of the legal regimes are attributed to the various development history and the policies of China and Korea. The provisions in China and Korea respectively have their own strong points and China and Korea may learn from each other.
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