1. Partnership contractInvestment risk sharing
Q:Feng Fajun, my friend and I jointly invested in a certain project, and agreed that I could receive fixed returns on a regular basis, but did not stipulate that I needed to bear the business risk. If the project falls through, can I sue for the return of the investment and earnings on the basis of the partnership?
A: No, you cannot. Because the two parties do not constitute a partnership contract relationship, but a private lending legal relationship. A partnership contract is an agreement between two or more partners to share benefits and risks for common business purposes. You guysThe parties did not agree to jointly bear the risks arising from the operation, which is not in line with the important characteristics of the partnership contract
Reference to the lawArticle 967 of the Civil Code:A partnership contract is an agreement between two or more partners to share benefits and risks for common business purposes.
2. Execution of partnership affairs
Transaction execution can be delegated
Q:Bong-ho-kun, I am planning to open a training institution with my business partner recently. Can I only be responsible for the capital contribution and not participate in the actual operation?
A: Yes. In general,Partnership affairs are carried out jointly by all partnersIn the case of an agreement in the partnership contract or a unanimous decision of all partners, the Civil Code also gives all partners the right to entrust one or more partners to perform affairs on behalf of the partnership enterprise.
Partnership matters should be reported
Q:Even if I am not involved in the actual operation of the training institution, do I have the right to view the detailed financial and accounting reports?
A: Yes. The Civil Code gives the partners the right to supervise the non-performing affairs. Even if you are not involved in the business, you have the right to view the financial books and other information. The partner who is responsible for the actual operation and management is obliged to disclose to you the operation and financial status of the institution truthfully and thoroughly. Reference to the law
Article 970 of the Civil Code:Where a partner makes a decision on partnership affairs, it shall be subject to the unanimous consent of all partners, unless otherwise agreed in the partnership contract.
Partnership affairs are carried out jointly by all partnersIn accordance with the provisions of the partnership contract or the decision of all partners, one or more partners may be entrusted to carry out partnership affairs;The other partners no longer carry out the affairs of the partnership, but have the right to supervise the execution of the affairs.
If the partners separately perform the affairs of the partnership, the executive partner may raise objections to the affairs performed by the other partners;After raising an objection, the other partners shall suspend the execution of the matter.
3. Capital contribution and transfer
The method of contribution is negotiable
Q:Feng Fajun, my friend and I agreed to jointly invest in and operate a supermarket, can I use fixed assets (shelves, air conditioners, cash register equipment, office equipment, etc.) as capital for the start-up capital of the supermarket decoration?
A:Yes, if both parties agree by mutual agreement!The method of capital contribution of the partners shall be determined by the partners through consensus in the partnership contractPartners can contribute capital through funds, in kind, or with property rights such as intellectual property rights. If a partner contributes capital in kind, it may be the ownership of movable or immovable property;In the case of technology, it can be the ownership or use of intellectual property rights and trade secrets. Each partner has the obligation to perform the capital contribution in the manner determined in the contract.
The transfer of shares is divided into internal and external
Q:Feng Fajun, me and Zhang.
3. Li Si agreed to jointly run the coffee shop. Now, Zhang San and Li Si have reached a withdrawal agreement through negotiation, agreeing to transfer all of Zhang San's property shares to Li Si, and Li Si will pay Zhang San a certain amount of withdrawal money on a monthly basis until it is paid off within two years. If I don't agree, is the withdrawal agreement between Zhang San and Li Si valid?
A: Yes. The transfer of shares of property between partners does not affect the stability and personal compatibility of the partnership. If there is no other special provision in the partnership agreementThe internal transfer of a share of the partnership property does not require the unanimous consent of all partners. As for the external transfer of property shares, in the absence of special provisions in the partnership contract, it must be subject to the unanimous consent of the other partners. Reference to the law
Article 968 of the Civil Code:The partners shall fulfill their capital contribution obligations in accordance with the agreed method, amount and payment period.
Article 16 of the Partnership Enterprise Law:Partners may contribute capital in money, in kind, intellectual property rights, land use rights or other property rights, and may also contribute capital with labor services.
Article 974 of the Civil Code:Unless otherwise agreed in the partnership contract, the transfer of all or part of the property share by a partner to a person other than the partner shall be subject to the unanimous consent of the other partners.
Article 22 of the Partnership Enterprise Law:Unless otherwise provided in the partnership agreement, the transfer of all or part of the property share of a partner in the partnership to a person other than the partner shall be subject to the unanimous consent of the other partners. When partners transfer all or part of their share of property in a partnership enterprise, they shall notify the other partners.
4. Profit distribution and debt assumption
Profit distribution depends on the agreement
Q:Feng Fajun, how should I share the benefits of the project or the risks of the project between me and the partners?
A:The profit distribution and loss sharing of the partnership shall first be handled in accordance with the provisions of the contract. If there is no agreement in the contract, the partners shall decide through negotiation. In the event that the negotiation fails, it can be followedProportion of paid-in capital contributionDistribution;If the proportion of capital contribution cannot be determined, the partners shall share it equally.
Partnership debts are recoverable
Q:Feng Fajun, I have partnered with a few friends to open a restaurant. The partnership agreement stipulates that I will carry out the partnership affairs. Some time ago, the capital turnover was not smooth, and with the consent of all partners, I borrowed RMB 100,000 on behalf of the restaurant, and the restaurant issued a loan receipt, stamped with the official seal, and indicated that the money was used for business development. Subsequently, the creditor demanded the debt from me. After I repay the above loan of 100,000 yuan, do I have the right to ask the other partners to bear it together?
A: Yes. If the partners are jointly and severally liable externally, but the debts of the partnership are paid off in excess of their share, they have the right to recover from the other partners. In exercising the right of recourse, it is necessary to determine each partner's share. The scope of recovery is limited to the amount that exceeds one's own responsibility.
Reference to the law
Article 972 of the Civil Code:The distribution of profits and losses of the partnership shall be handled in accordance with the provisions of the partnership contractIf there is no agreement in the partnership contract or the agreement is not clear, the partners shall decide through consultation;If the negotiation fails, the partners shall distribute and share according to the proportion of paid-in capital contributions;If the proportion of capital contribution cannot be determined, the partners shall share it equally.
Article 973 of the Civil Code:The partners are jointly and severally liable for the debts of the partnership. A partner who pays off the debts of the partnership in excess of his or her share shall have the right to recover from the other partners.
5. Termination of the partnership contract
Compensation shall be paid for illegal withdrawal
Q:Feng Fajun, I have been running a flower shop with my college classmates for almost two years, and I joined the company with my flower arrangement skills, and the agreed partnership period is five years. Recently, I withdrew from the business without the consent of my classmates, and soon after the flower shop was forced to close down, do I need to be liable for compensation?
A:It depends on the agreement of the partnership contract, the reason for your withdrawal, the fault of both parties, etc. Generally speaking, if the withdrawal of the partnership is due to your own reasons and not caused by the other partners, and there is no reason for withdrawal stipulated in the partnership agreement or it is difficult for you to continue to participate in the partnership, then if you withdraw from the partnership without authorization and the florist cannot operate normally, you shall compensate the other partners for the losses caused by the unauthorized withdrawal.
The dissolution of the partnership shall be notified
Q:If my classmates and I have not agreed on the term of the partnership flower shop, and the business of the shop has not been good recently, can I request to terminate the partnership contract?
A: Yes. , but advance notice should be given. If the partners do not agree on the term of the partnership or the agreement is not clear, and the partners fail to reach an agreement on the negotiation and supplementation of the partnership term, it is an indefinite partnership. The indefinite partner has the right to terminate the indefinite partnership contract at any time, provided that the other partners are notified before a reasonable period of time. The method of notification may be in writing, WeChat, text message, etc. If the other party still does not cooperate after the notice, it may appeal to the court to request the termination of the partnership agreement between the two parties.
The distribution of property is paid off first
Q: Feng Fajun, I run a bubble tea shop in partnership with a friend, and my friend has been leading the operation. Recently, my friend and I agreed to close the shop. I also found the store's financial accounts in a mess. Can I request the distribution of partnership property and return of investment funds after the termination of the partnership contract?
A:After the termination of the partnership contract, the partners can request the distribution of property. ButDistribution can only be made by agreement or negotiation if there is a surplus of partnership property after the payment of fees and the settlement of partnership debts. If the agreement or negotiation fails, it shall be distributed according to the proportion of paid-in capital contribution or equally. On the other hand, if the partnership accounts are incomplete and the auditor cannot ascertain the profit and loss, the plaintiff may have to bear the adverse burden of failing to provide evidence once the lawsuit is brought to the court.
We would like to remind all partners to sort out the partnership accounts in a timely manner and keep abreast of the business status of the partnership. When there is a problem in the operation of the partnership, it takes the initiative to conduct an audit through negotiation, preserve evidence, and realize the preventive protection of its own rights and interests.
Reference to the lawArticle 976 of the Civil Code:Where the partners have not agreed on the term of the partnership or the agreement is not clear, and it is still uncertain in accordance with the provisions of Article 510 of this Law, it shall be regarded as an irregular partnership.
If the partnership period expires and the partners continue to perform the partnership affairs, and the other partners do not raise objections, the original partnership contract shall continue to be valid, but the partnership period shall be indefinite.
A partner may terminate an indefinite partnership contract at any time, provided that the other partners are notified within a reasonable period of time.
Article 45 of the Partnership Enterprise Law:If the partnership agreement stipulates the term of the partnership, during the existence of the partnership, the partners may withdraw from the partnership under any of the following circumstances:
1) The reason for withdrawal stipulated in the partnership agreement appears;
2) With the unanimous consent of all partners;
3) The occurrence of reasons for the partners to continue to participate in the partnership;
4) Other partners seriously violate the obligations stipulated in the partnership agreement.
Article 47 of the Partnership Enterprise Law:Where a partner withdraws from the partnership in violation of the provisions of Articles 45 and 46 of this Law, he shall compensate for the losses caused to the partnership as a result.
Article 978 of the Civil Code:After the termination of the partnership contract, if there is any surplus of the partnership property after paying the expenses incurred due to the termination and paying off the partnership debts, it shall be distributed in accordance with the provisions of Article 972 of this Law.
A good partnership can be a win-win situation
1. Sign a written partnership contract in a timely manner, clarifying the rights and obligations of all parties, the scope of partnership business, the execution of affairs, the way of capital contribution, profit distribution, loss sharing and other important aspects, so as to avoid the lack of basis in the event of disputes in the future.
2. In matters such as capital contribution, operation, transfer and withdrawal, the partners should communicate and reach consensus through negotiation in order to achieve mutual benefit and win-win results.
3. It is recommended that partners who are not directly involved in the operation of the business should also regularly pay attention to and supervise the execution of partnership affairs, so as to avoid the adverse situations that may be faced in subsequent litigation.