1, principle of priority of partnership creditor's rights 2, principle of double priority. Some people think that the principle of double priority is fair and reasonable in most cases, and we should learn from it. We advocate that China should adopt the principle of double priority for the following reasons:
2. The joint property of the partnership is in a relatively independent position from the partners, and the debts of the partnership should be paid off by the joint property of the partnership first. When there is a surplus after payment, it shall be distributed according to the share of each member or the proportion agreed in the agreement, and the partners shall use the allocated part to pay off personal debts. 2. The personal debts of a partner shall be paid off with the property owned or managed by the partner first. After payment, they can be used to repay the partnership debt. Some people hold different views on the principle of double priority.
If the principle of double priority is confirmed, it is meaningful only to protect the single creditor of the partner, and it will dilute the role of the legal provisions that the partner bears joint liability for the partnership debts, because in fact, it is impossible for the partner creditors to jointly claim compensation for the personal property of the partner. The credit of the partnership will also be reduced, thus affecting the role of the partnership. For this reason, countries in continental France do not adopt this principle and attach importance to the protection of partnership creditors.
The principle of double priority is not clearly defined in China, but it is also reflected in judicial interpretation. For example, the document 1480 in the Supreme People's Court 1957 stipulates: "When a partnership enterprise and a sole proprietorship enterprise are in debt, and the sole proprietorship enterprise is unable to pay off, the property of the partnership enterprise shall be auctioned, and the debts incurred by the partnership enterprise shall be paid off first, and then the partners shall pay off the sole proprietorship enterprise in proportion.
The Supreme People's Court also stipulated the principle of double priority in 1990 "Answers to Several Questions on Trial of Joint Venture Contract": "A joint venture is a partnership organization, and its debts can be paid off with its property first. If the property of the joint venture is insufficient to pay off the debts, the parties to the joint venture shall pay off the debts according to the proportion agreed in the joint venture contract. " As far as creditors are concerned, partnership creditors have the priority to be compensated for the partnership property. That is, they have the right to claim that the partnership property has priority to satisfy their creditor's rights. If the joint property of the partnership enterprise is insufficient to pay off the partnership debts, the creditors of the partnership enterprise can claim compensation with the personal property of the partners only when the personal debts of the partners are paid off separately and the partners still have the remaining personal property to pay off the partnership debts. On the contrary, the individual creditors of the partners have the right to enjoy the priority of compensation for the personal property of the partners. In other words, they have the right to claim that their creditor's rights should be given priority to their partner's personal property. When a partner's personal property is insufficient to pay off the debts, the partner's personal creditors may pay off the debts with the partner's share in the joint property. Before the creditor of a partner pays off his creditor's rights with his personal property, the creditor of the partner has no right to ask the partner to pay off his debts with his personal property.
The priority principle of partnership creditor's rights emphasizes the full and comprehensive protection of partnership creditor's rights. When a partner undertakes both partnership debts and personal debts, the partnership property shall be paid off to the partner's creditors in priority, and the insufficient part shall be paid off to the partner's personal creditors jointly with the partner's personal property, which reflects the thoroughness and unlimited joint and several nature of the partnership debt settlement.
Law is a double-edged sword. If the unlimited joint and several liability of partners to their creditors is overemphasized, the creditors of partners may never be fully paid off from their personal property, because the partnership debt is often greater than the personal debt. Therefore, it is unfair for the creditors of partners to ignore the creditor's rights and interests of individual creditors of partners. The principle of double priority emphasizes that the creditors of an enterprise are based on the enterprise property. On the basis of personal property, individual creditors distinguish the difference between partnership debt and partner's personal debt, divide the nature of the two kinds of property, and emphasize that partnership debt should be repaid with partnership property, which is more in line with the characteristics of partnership. The principle of double priority emphasizes: "If partners have surplus property after paying off all their personal debts, they will add the rest to the partnership property when necessary. Used to pay off the debts of the partnership. " This is feasible in practice. To sum up, combined with the actual situation in our country, the principle of double priority can fairly and reasonably safeguard the interests of the partnership creditors and the individual creditors of the partners, and the interests of both parties are guaranteed, so that both parties have equal opportunities to get paid off from the debtors.