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Objects and Reasons.
The present partnership law, codified in Ordinance No. 1 of 1897, is habitually evaded by respectable and responsible members of the Chinese mercantile community because it runs counter to the essential characteristics of Chinese partnerships. In deciding a case under that Ordinance the Chief Justice said (3 H.K.L.R. 170);~"This is an Ordin- ance passed in 1997 by the local Legislature, and I can only hold, there being no reference from end to end to Chinese customs, that it was the deliberate intention to ignore the Chinese customs of partnership. Whether this was wise or unwise is not for me to say,
But I must point
out to the Government the extreme danger of reproducing. English legislation bodily into the Colonial Statute Book without at least considering the question how it may effect the customs of the large body of Chinese who are legislated for."
The chief characteristics of the present partnership, law are the unlimited liability of each partner for the debts of the firm, the dissolution of the partnership upon the death or bankruptly of any partner, and the limit to the number of partners.
The chief characteristics of a Chinese Partnership are:-- (1.) Each partner is liable to pay out of his private
property only such proportion of, a partnership. debt as his share bears to the total of the shures
of all the partners. But the partnership as a whole may be sued for the whole debt.
(2.) Partuerships do not come to an end on the death of a partner, but the deceased partner's sons are admitted as partners and their father's share is sometimes divided between them and some- tines remains intact under the father's tong name, the interest being divided among the
Ouss.
(3.) Firms may take shares in other firms and there
is no limit to the unmber of
persons who
may become partners. (4.) Shares are frequently beld in t'ong names, nameS invented by the individual partner for the pur- pose of holding property and, not infrequently, also for the purpose of concealing his identity from the general publie.
(5.) Before a dividend is paid out of profits interest on capital, usually at the rate of 10% per annum, is paid to the partners who have subscribed it. (6.) Many firms bave, in addition to the partuers subscribing capital, a hung hú or red share- holder, a person, usually the promoter or mana- ger, who is given a share though he subscribes no capital. He gets no interest on capital but he shares with the partners the surplus profit after interest on capital has been paid.
He is
not, moreover, liable for the debts of the firm. The objection to the recognition of the first of these characteristics is that unless the unpaid creditor of an insol- vent firm can find and sue every single partner of the debtor firm he cannot hope to be paid in full. But this is not a fatać objection as bias position is better than that of the creditor of an insolveut limited company who cannot reach the private property of individual shareholders at all.
As to the second characteristic. There seems no reason why the death of a partner should destroy the partnership. In fact in the case of limited partnerships registered under the Imperial Act 7 Ed. VII chap, 24 the death of a limited partner does not dissolve the partnership. But the death of a partner would result, of course, in a change in the pro- portionate interests of the remaining partners in the firm, and the value of the share of the dead partner would have to be paid to his personal representatives. It would be undesirable, if only for fiscal reasons, to recognise the right of sons to take their deceased father's share without taking out Letters of Administration.
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