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LEGAL PERSONALITY STATUS OF PARTNERSHIPS IN SWISS LAW (Podmiotowosc spólek osobowych w prawie szwajcarskim)

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Lic J.
Studia Prawnicze
|
2008
|
issue 4(178)
89-111
EN
The problem of legal status of partnerships belongs to the most hotly disputed issues in European corporate law. In Polish literature, no analyses have been published explaining the viewpoint of the Swiss doctrine. In spite of many similarities between legal solutions applied in Swiss and Polish law systems, a significant difference exists in approach to the mentioned problem. In Poland, the most common standpoint relies on treating civil partnerships as obligation, while the Swiss doctrine has abandoned this position and treats civil partnership (Einfache Gesellschaft) as a legal group of joint interests, i.e. a type of organizational unit. In relation to commercial partnerships, a very similar norm has been adopted in Polish Commercial Companies Code (art. 8 § 1), and in Swiss Code of Obligations in art. 562. In Poland, the above norm is generally understood as leading to legal capacity of commercial partnerships, while in Switzerland legal capacity of such partnerships is normally rejected. In effect of the existence of legal loopholes, as well as the influence of strong legal tradition, Swiss doctrine faces the problem of the legal capacity of civil partnerships, including in particular business partnerships, as well as the problem of legal capacity of commercial partnerships. In both cases, Swiss doctrine has been following two divergent tendencies: the former leading to rejection of legal capacity in effect of the adoption of joint and indivisible ownership of assets (Gesamthand) in such partnership, and the latter, accepting the mentioned partnerships as legal entities, in effect of the necessities of trade, in particular those related to the managing the business organization under own trade name or brand. Until now, Swiss law has not followed in the footsteps of German legal system, and refused to accept the legal capacity of either civil partnership or commercial partnerships.
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