商合伙的主体法律地位与责任承担规则

The Legal Status As the Subject and the Default Rules of Business Partnership

商合伙兼具有组织体色彩与个人契约性。协议效力优先原则决定商合伙更倾向于个人契约性,它能够为商主体更充分提供私法自治的空间。商合伙的本质及其主体地位的认识不应停留在传统民法理论上,把其作为自然人或法人的特殊表现形式,应将其明确为"第三类主体"。商合伙制度蓬勃发展必须克服现行法律缺陷,其关键在于确保商合伙财产与责任组合上形式的极大灵活性,并确立灵活的双重责任承担规则。

Business partnership is considered as an organization to a certain extent, but mainly as an individual contract in accordance with the principle of constraining power of a contract preceding directory provisions. It therefore can provide space fully for autonomy of private law. The cognition about the essence and subject position of business partnership should not still stay around the traditional civil law theories - only as a kind of special manifestation of the natural person or juridical person; however, it should definitely be ＂the third subject＂. Only by overcoming the limitations of the present law, can business partnership flourishes vigorously, with the key lying in the flexibility in integrating the property and the responsibilities of business partnership and the establishment of flexible dual default rules.