2.3. Economic partnerships and business associations
Economic partnerships and companies (scheme 2.2) are recognized as commercial organizations with a share (contributions) of founders (participants) authorized capital (share) capital. In Europe and Japan, business associations and their associations are called companies in the US - corporations.
Property created from the contributions of the founders (participants), as well as produced and acquired by the economic partnership or the company in the course of its activities, belongs to it by right of ownership. In some cases, an economic company can be created by one person, who becomes its sole participant.
Business partnerships can be created in the form of general partnership and partnerships on faith (limited partnership).
Business associations may be established in the form of a joint-stock company, a limited company or with additional responsibility.
2.3.1. Business partnerships
Established by the US Civil Code, the organization of economic partnerships and the organization of their activities are presented in Schemes 2.5 and 2.6.
From the point of view of commercial activity, it is important to note the following features of economic partnerships:
o the full comrades conduct business on behalf of the partnership, but the foundation agreement may establish a different procedure for conducting business;
o contributors (limited partners) do not participate in business activities and in the management of partnerships
o full partners bear responsibility for all their property, contributors bear the risk of loss only within the limits of their contributions;
o The profits and losses of both the general partnership and the partnership on faith are distributed among the full partners in proportion to their shares in the share capital or in accordance with the terms of the agreement (agreement) between the participants. The contributing participant has the right to receive a part of the profit due to its share, in the order stipulated in the constituent contract (which is signed by all full partners).
Let us dwell in more detail on the responsibility of participants in a full partnership. The legislative norm providing unlimited joint and several liability of full comrades is established in the interests of the participants
Schema 2.5. Organization of business partnerships
Schema 2.6. Organization of business partnerships
property turnover and can not be canceled or limited by the contract.
Unlimited liability of the members of the general partnership for its debts makes it very attractive to potential counterparties, and also increases the reliability and creditworthiness of the partnership in the eyes of other participants in property turnover. Consider the main issues associated with this responsibility.
The partnership itself is primarily responsible for the partnership's debts as an independent legal entity with its own property. Therefore, the property of the partnership can not be the object of collection for the debts of individual comrades.
At the same time, a full partnership is an association of persons from whose deposits the capital of the partnership itself is created. Members of the partnership derive profits from the use of this capital, directly participating in the affairs of the partnership, and also bear additional (subsidiary) liability for its debts. Therefore, a share of the participant in the partnership's property may be levied by his personal creditors in the absence of other assets of the comrade to cover the debts.
Thus, a creditor of a participant in a general partnership can not apply for the private debts of a participant to the property of a general partnership, but he can foreclose on the share of his debtor in this property, demanding the separation of part of the property of the partnership.
The share of property to be allocated or its value is determined by the balance sheet compiled at the time of the presentation of demands by the creditors. The foreclosure of property, corresponding to the share of the participant in the share capital of the general partnership, terminates his participation in the partnership. However, he will be responsible for the debts of the partnership for the next two years (Article 80 of the Civil Code of the United States).
If such a participant has transferred to the partnership any property on the right of use, then this property can be levied on his debts, so as it is the property of not comradeship, but of his companion. If such property is sufficient to satisfy the creditor's claims, then the creditor has no right to demand an additional share of such a participant.
Attention should be paid to the fact that a person who joins a partnership after its formation, responds on an equal basis with the founders of the partnership, including on those obligations that arose up to one hundred joining the partnership. This responsibility lies with him if he, when entering into a partnership, not knowing about any of the obligations that lie with the partnership, and even if these obligations were deliberately hidden from him. In the latter case, this comrade has the right, in addition to a general recourse action against the other comrades, to bring to them also a claim for damages incurred as a result of misleading him.
If the participant pays the debt of the partnership, he has the right to reverse demand to the other participants in proportion to the share of each of them in the losses of the partnership. This share of participation should be specified in the contract. If there is no such indication, the debtor who has fulfilled the joint obligation shall have the right to reverse the claim to the other debtors in equal shares, unless otherwise provided by law or contract. Unpaid by one of the co-owners falls in equal shares on all others.
In accordance with paragraph 2 of Art. 75 of the US Civil Code, a participant who has left the partnership is liable for the debts of the partnership within two years from the date of approval of the report on the activities of the partnership for the year in which he left. The responsibility of the retired comrade remains the same as if he remained in a partnership, that is, unrestricted and solidary. It extends not only to the obligations that have arisen during his stay in the partnership, but also to those obligations that will arise during the entire time in the continuation of which he will remain responsible.
Companions bear joint responsibility for all obligations of the general partnership, for whatever reasons these obligations arise (transactions, delinquencies, unjust enrichment). In addition, comrades bear the same responsibility for obligations arising from transactions concluded by one of the partners, even if not on behalf of the partnership, in its interests.
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