the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
With separate property, by any one or more of the partners, or With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold. Nothing in this act shall be held to deprive a partner of his right, if any, under the exemption laws, as regards his interest in the partnership.
第二十八条 受扣押令限制的合伙人的利益
经一合伙人的司法判决债权人对有管辖权法院的正当申请,做出该判决、指令的法院或其他法院可以做出下列行为:扣押作为债务人的合伙人对合伙享有的利益并加算利息以清偿上述司法判决之债未获满足的部分;在做出判决之时或之后任命一接收人来接受该合伙人对合伙享有的利益和合伙对该合伙人的到期或即将到期的其他分配;做出该合伙人可能已对合伙做出的或在当时情况下必要的所有其它命令、指令、说明和询问。
在法院指导下进行的一次销售可以在不导致合伙解散的情况下达成或者在赎回权被终止前的任何时候,被扣押的利益可以下列方式赎回: 以一个或一个以上的合伙人的个人财产赎回,或者
经其利益未被置于扣押令之下或出售的全体合伙人的同意,由一个或一个以上的合伙人以合伙财产赎回。
本法中的任何规定不得被认为可以剥夺一合伙人根据豁免法对其在合伙中的利益享有的权利,如果这种权利确实存在的话。 PART Ⅵ
DISSOLUTION AND WINDING UP
合伙的解散与清算
§29. Dissolution Defined
The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as
distinguished from the winding up of the business.
第二十九条 解散的定义
合伙的解散是指由任一合伙人引起的的合伙人之间关系的改变,这一改变不同于合伙事务的清算且停止了合伙人之间因合伙事务而结成的联合。
§30. Partnership Not Terminated by Dissolution
On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.
第三十条 合伙未因解散而终止
一经解散,合伙并未终止,而是持续到对合伙事务的清算结束。
§31. Causes of Dissolution Dissolution is caused:
(1) Without violation of the agreement between the partners,
By the termination of the definite term of particular undertaking specified in the agreement;
By the express will of any partner when no definite term or particular undertaking is specified,
By the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking,
By the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners; (2) In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this section, by the express will of any partner at any time;
By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership; By the death of any partner;
By the bankruptcy of any partner or the partnership; By decree of court under Section 32.
第三十一条 合伙解散的原因
下列情形发生时,合伙应当解散:(1)当合伙人之间的协议未被违反时, 合伙协议约定的经营期限或者特定项目届满,
合伙协议没有约定经营期限或者特定项目,但某合伙人已明确表示不愿继续经
营合伙业务,
在约定的经营期限或特定项目届满之前或之后,所有未将其合伙利益进行分配或以其合伙利益偿还其个人债务的合伙人明确表示不愿继续经营合伙业务, 根据合伙人之间的协议授予的权力基于诚信将任一合伙人从合伙事务中除名; (2)当合伙人之间的协议被违反时,若当时的情形不允许根据本条规定解散合伙时,任一合伙人随时明确表示不愿继续经营合伙事务; 使合伙事务的继续经营或合伙人继续合伙成为非法的任何事件; 任一合伙人的死亡;
任一合伙人或合伙组织的破产;
根据本法第32条中规定的法院做出的判决。
§32. Dissolution by Decree of Court
On application by or for a partner the court shall decree a dissolution whenever:
A partner has been declared a lunatic in any judicial proceeding or is shown to be of unsound mind,
A partner becomes in any other way incapable of performing his part of the partnership contract,
A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business,
A partner willfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him,
The business of the partnership can only be carried on at a loss, Other circumstances render a dissolution equitable?
On the application of the purchaser of a partners interest under Sections 27 or 28:
After the termination of the specified term or particular undertaking, At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued.
第三十二条 合伙因法院判决而解散
不论何时,如果下列情形发生,一经任一合伙人的申请或为了任一合伙人的利益,法院应该做出解散合伙的判决:
一合伙人已被任一司法程序宣布为精神错乱或其行为显示其精神不健全, 其它方式表明,一合伙人已没有能力履行合伙协议规定的其应该履行的部分, 一合伙人的行为有妨碍无偏私地执行合伙事务的倾向,
一合伙人的任意行为或长期行为构成了对合伙协议的违反,或者他做出了与合
伙业务相关的行为,使与该合伙人继续共同经营合伙业务已经不合情理, 经营合伙业务只能亏本, 使合伙的解散是公平的其他情形。
经合伙人利益购买者根据本法第27条或明或28条提出申请: 在规定期间或特定项目终止之后,
如果合伙是一任意性合伙,则在合伙人利益已被转让或指控令已被签发的任何时间。
§33. General Effect of Dissolution on Authority of Partner
Except so far as may be necessary to wind up partnership affairs or to complete transactions begun but not then finished, dissolution terminates all authority of any partner to act for the partnership, With respect to the partners,
When the dissolution is not by the act, bankruptcy or death of a partner, or
When the dissolution is by such act, bankruptcy or death of a partner, in cases where Section 34 so requires.
With respect to persons not partners, as declared in Section 35.
第三十三条 合伙的解散对合伙人权力的一般效力
合伙的解散终止了各合伙人执行合伙事务的所有权力,除非该权力是清算合伙事务或完成合伙解散时已经开始但尚未结束的交易所必须的, 关于合伙人,
当合伙的解散不是因为一合伙人的行为,破产或死亡引起的,或者
当合伙的解散是因为一合伙人的行为,破产或死亡引起的,参照本法第34条的相关规定。
对非合伙人的效力,参照本法第35条的相关规定。
§34. Right of Partner to Contribution from Copartners After Dissolution Where the dissolution is caused by the act, death or bankruptcy of a partner, each partner is liable to his copartners for his share of any liability created by any partner acting for the partnership as if the partnership had not been dissolved unless
The dissolution being by act of any partner, the partner acting for the partnership had knowledge of the dissolution, or
The dissolution being by the death or bankruptcy of a partner, the partner acting for the partnership had knowledge or notice of the death or bankruptcy.
第三十四条 各合伙人在合伙解散后从共同合伙人处要求分配的权利
当合伙的解散是因为一合伙人的行为,破产或死亡引起时,各合伙人应当在其对合伙债务应当承担的责任范围内,对其他合伙人为执行合伙业务而引起的责任承担责任,就如同合伙并未解散一样,但下列情形除外
(a)当合伙的解散是由一合伙人的行为导致时,执行合伙事务的合伙人已经知道合伙的解散,或者
(b)当合伙的解散是因为一合伙人的破产或死亡引起时,执行合伙事务的合伙人已经知道或注意到该合伙人的破产或死亡。
§35. Power of Partner to Bind Partnership to Third Persons After Dissolution After dissolution a partner can bind the partnership except as provided in Paragraph (3)
By any act appropriate for winding up partnership affairs or completing transactions unfinished by dissolution;
By any transaction which would bind the partnership if dissolution had not taken place, provided the other party to the transaction
(Ⅰ) Had extended credit to the partnership prior to dissolution and had no knowledge or notice of the dissolution; or
(Ⅱ) Though he had not so extended credit, had nevertheless known of the partnership prior to dissolution, and, having no knowledge or notice of dissolution, the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place if more than one) at which the partnership business was regularly carried on.
The liability of a partner under paragraph (1b) shall be satisfied out of partnership assets alone when such partner had been prior to dissolution. Unknown as a partner to the person with whom the contract is made; and So far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his connection with it.
The partnership is in no case bound by any act of a partner after dissolution.
Where the partnership is dissolved because it is unlawful to carry on the business, unless the act is appropriate for winding up partnership affairs; or
Where the partner has become bankrupt; or
Where the partner has no authority to wind up partnership affairs; except by a transaction with one who
(Ⅰ)Had extended credit to the partnership prior to dissolution and had no knowledge or notice of his want of authority; or
(Ⅱ)Had not extended credit to the partnership prior to dissolution, and,
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