試論隱名合伙的性質(zhì)及立法模式
發(fā)布時間：2018-10-12 09:02
【摘要】：隱名合伙是現(xiàn)代民商法中一項重要的法律制度,對西方國家的經(jīng)濟發(fā)展起到了良好的促進作用。大陸法系許多國家和地區(qū)的民商法都對此作了專門的規(guī)定。正如有學(xué)者所說,有關(guān)隱名合伙的問題,在外國法學(xué)界中是個陳舊的話題,甚至是一個沒有討論意義或研究價值的問題。然而我國社會生活中存在著隱名合伙現(xiàn)象,但法律尚未提供規(guī)范。由于缺少必要的法律調(diào)節(jié),隱名合伙這種法律關(guān)系的性質(zhì)含混不清,導(dǎo)致司法機關(guān)處理這類糾紛時無法可依,隨意性很大,這嚴重影響了我國司法的統(tǒng)一性和權(quán)威性。本文結(jié)合我國立法和社會生活現(xiàn)狀,通過對隱名合伙相關(guān)問題的探討,論述了我國確立隱名合伙制度的必要性,并對我國立法如何構(gòu)建隱名合伙的立法模式闡述了自己的一些想法。 論文共分四個部分: 第一部分為隱名合伙的性質(zhì)與特征。該部分是本文的核心。這一部分主要包括隱名合伙的概念及法律特征、隱名合伙的法律性質(zhì)以及隱名合伙與相關(guān)概念(制度)之比較三方面內(nèi)容。第一,在隱名合伙的概念及法律特征中,筆者主要對隱名合伙的概念和法律特征進行界定和分析。第二,在隱名合伙的法律性質(zhì)中,筆者看到近現(xiàn)代各國的民商事立法均未對隱名合伙的性質(zhì)予以界定,各國立法在編排體例上的不同也表現(xiàn)出對隱名合伙性質(zhì)問題的不同認識。但是我們?nèi)匀豢梢詮母鲊嘘P(guān)隱名合伙的立法例上探求各國立法的本意,即隱名合伙究其本質(zhì)是隱名合伙人與出名營業(yè)人之間的一種內(nèi)部合同關(guān)系。對于隱名合伙的非團體性與契約性,各國學(xué)說也多有共識。第三,隱名合伙與相關(guān)概念(制度)之比較。隱名合伙作為一種特殊形式的合伙,有別于普通合伙、消費借貸、兩合公司、雇傭合同、臨時合伙、有限合伙,但與它們又存在相似之處,易引起混淆,因此,對它們加以辨析是必要的。 第二部分是隱名合伙制度的價值分析。這一部分主要包括兩部分內(nèi)容:關(guān)于建立隱名合伙制度的爭論和建立隱名合伙制度的利弊分析。第一,在建立隱名合伙制度的爭論中,筆者詳細列舉了針對建立隱名合伙制度贊成者和反對者的觀點。第二,在建立隱名合伙制度的利弊分析中,筆者探討了建立隱名合伙制度的必要性,并在此基礎(chǔ)上,針對反對者的論點予以深入分析,最后指出我國有必要在立法上承認隱名合伙制度,但必須輔之以行之有效的措施,從而消除隱名合伙的不利因素。
[Abstract]:Anonymous partnership is an important legal system in modern civil and commercial law, which plays a good role in promoting the economic development of western countries. Civil and commercial laws in many countries and regions of the continental law system have made special provisions on this. As some scholars have said, the issue of dormant partnership is an old topic in foreign legal circles, even a question of no significance or research value. However, there is a hidden partnership phenomenon in our social life, but the law has not yet provided norms. Due to the lack of necessary legal regulation, the nature of the legal relationship of anonymous partnership is ambiguous, which leads to the judicial organs can not deal with this kind of disputes, arbitrary, which seriously affects the unity and authority of our country's judicature. Based on the current situation of legislation and social life in our country, this paper discusses the necessity of establishing the system of dormant partnership in China through the discussion of the problems related to dormant partnership. It also expounds some thoughts on how to construct the legislative model of secret partnership in our country. The thesis is divided into four parts: the first part is the nature and characteristics of anonymous partnership. This part is the core of this paper. This part mainly includes the concept and legal characteristics of dormant partnership, the legal nature of dormant partnership and the comparison between anonymous partnership and related concepts (system). First, in the concept and legal characteristics of dormant partnership, the author mainly defines and analyzes the concept and legal characteristics of dormant partnership. Secondly, in the legal nature of dormant partnership, the author finds that the civil and commercial legislation of modern countries has not defined the nature of dormant partnership, and the different legislations in different countries also show different understanding of the nature of dormant partnership. However, we can still find out the original intention of the legislation from the legislations of various countries, that is, the hidden partnership is a kind of internal contract relationship between the dormant partner and the famous business owner. There is also consensus in many countries about the non-group and contractual nature of anonymous partnerships. Thirdly, the comparison between anonymous partnership and related concepts (system). Anonymous partnerships, as a special form of partnership, are different from ordinary partnerships, consumer lending, two companies, employment contracts, temporary partnerships, limited partnerships, but there are similarities with them, which are liable to cause confusion. It is necessary to discriminate them. The second part is the value analysis of dormant partnership system. This part mainly includes two parts: the argument about establishing the anonymous partnership system and the analysis of the advantages and disadvantages of establishing the hidden partnership system. First, in the argument of establishing anonymous partnership system, the author enumerates the views of proponents and opponents of establishing anonymous partnership system in detail. Secondly, in the analysis of the advantages and disadvantages of establishing the dormant partnership system, the author probes into the necessity of establishing the dormant partnership system, and on this basis, analyzes the arguments of the opponents in depth. Finally, it is pointed out that it is necessary for our country to recognize the system of dormant partnership in legislation, but it must be supplemented by effective measures to eliminate the unfavorable factors of dormant partnership.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2005
【分類號】：D923
本文編號：2265552
[Abstract]:Anonymous partnership is an important legal system in modern civil and commercial law, which plays a good role in promoting the economic development of western countries. Civil and commercial laws in many countries and regions of the continental law system have made special provisions on this. As some scholars have said, the issue of dormant partnership is an old topic in foreign legal circles, even a question of no significance or research value. However, there is a hidden partnership phenomenon in our social life, but the law has not yet provided norms. Due to the lack of necessary legal regulation, the nature of the legal relationship of anonymous partnership is ambiguous, which leads to the judicial organs can not deal with this kind of disputes, arbitrary, which seriously affects the unity and authority of our country's judicature. Based on the current situation of legislation and social life in our country, this paper discusses the necessity of establishing the system of dormant partnership in China through the discussion of the problems related to dormant partnership. It also expounds some thoughts on how to construct the legislative model of secret partnership in our country. The thesis is divided into four parts: the first part is the nature and characteristics of anonymous partnership. This part is the core of this paper. This part mainly includes the concept and legal characteristics of dormant partnership, the legal nature of dormant partnership and the comparison between anonymous partnership and related concepts (system). First, in the concept and legal characteristics of dormant partnership, the author mainly defines and analyzes the concept and legal characteristics of dormant partnership. Secondly, in the legal nature of dormant partnership, the author finds that the civil and commercial legislation of modern countries has not defined the nature of dormant partnership, and the different legislations in different countries also show different understanding of the nature of dormant partnership. However, we can still find out the original intention of the legislation from the legislations of various countries, that is, the hidden partnership is a kind of internal contract relationship between the dormant partner and the famous business owner. There is also consensus in many countries about the non-group and contractual nature of anonymous partnerships. Thirdly, the comparison between anonymous partnership and related concepts (system). Anonymous partnerships, as a special form of partnership, are different from ordinary partnerships, consumer lending, two companies, employment contracts, temporary partnerships, limited partnerships, but there are similarities with them, which are liable to cause confusion. It is necessary to discriminate them. The second part is the value analysis of dormant partnership system. This part mainly includes two parts: the argument about establishing the anonymous partnership system and the analysis of the advantages and disadvantages of establishing the hidden partnership system. First, in the argument of establishing anonymous partnership system, the author enumerates the views of proponents and opponents of establishing anonymous partnership system in detail. Secondly, in the analysis of the advantages and disadvantages of establishing the dormant partnership system, the author probes into the necessity of establishing the dormant partnership system, and on this basis, analyzes the arguments of the opponents in depth. Finally, it is pointed out that it is necessary for our country to recognize the system of dormant partnership in legislation, but it must be supplemented by effective measures to eliminate the unfavorable factors of dormant partnership.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2005
【分類號】：D923
【引證文獻】
相關(guān)碩士學(xué)位論文 前2條
1 種記超;隱名合伙研究[D];山東大學(xué);2011年
2 張偉剛;隱名合伙及中國的構(gòu)建路徑[D];蘭州大學(xué);2012年
，本文編號：2265552
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