Article 970
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 partners. In accordance with the provisions of the partnership contract or the decision of all the partners, one or more partners may be entrusted to carry out the partnership 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, and after the objection is raised, the other partners shall suspend the execution of the affairs.
I. Purpose of this Article
This article is about the execution of partnership affairs.
II. Evolution of the Provisions
This provision originates from Article 34 of the original General Principles of the Civil Law, and after absorbing the relevant provisions of the Partnership Enterprise Law, the system of decision-making, implementation and supervision of partnership affairs has been further improved. Article 34 of the original General Principles of the Civil Law stipulates that the business activities of an individual partnership shall be jointly decided by the partners, and the partners shall have the right to execute and supervise. Partners can nominate the person in charge. The business activities of the person in charge of the partnership and other persons shall be borne by all partners in civil liability. In the process of compiling the Civil Code, on the basis of Article 34 of the original General Principles of the Civil Law, comprehensive and detailed provisions have been made on the implementation of partnership affairs, the system of decision-making, implementation and supervision of partnership affairs has been further improved, and a new system of partners' right of objection has been added.
3. Interpretation of Provisions
This article regulates the execution of partnership affairs.
Partnership operation includes three aspects: business decision-making, execution of partnership affairs and person in charge of the partnership. Unless otherwise agreed in the partnership contract, a decision made by a partner on partnership affairs shall be subject to the unanimous consent of all partners. The partners have the right to execute and supervise. Partners can nominate the person in charge. The business activities of the person in charge of the partnership and other persons shall be borne by all partners in civil liability.
The execution of partnership affairs is a part of the operation of the partnership, which refers to the activities in which partners are responsible for the execution and what rights the partners other than the executor have to achieve the purpose of the partnership after the decision on the operation of the partnership is determined. After the business decision of the partnership is made, there are two specific ways to implement it.
1. Joint execution, that is, joint execution by all partners.
2. Execution on behalf of the partnership, that is, in accordance with the provisions of the partnership contract or the decision of all partners, one or more partners may be entrusted to perform partnership affairs;
3. Separate execution, that is, if the partners separately perform the partnership affairs, the executive partners may raise objections to the affairs performed by the other partners, and after the objections are raised, the other partners shall suspend the execution of the affairs.
Regardless of the way in which the execution of partnership affairs is carried out, all partners shall be jointly liable, rather than the individual executor of partnership affairs shall bear civil liability. Regardless of the method of execution, all partners or partners who do not perform partnership affairs have the right to supervise the execution of partnership affairs, supervise the execution activities of the executor of partnership affairs, and have the right to put forward supervisory opinions and submit them to all partners for discussion and decision-making by all partners.
4. Cases
Case of private lending dispute between Chen X A and Chen X B and a company
Facts: In November 2010, Chen and Zhou signed a contract, agreeing to operate a mine and a concentrator in partnership. Among them, Chen Moujia is fully responsible for the operation and production affairs of the mine and concentrator, and Zhou has the right to carry out the administrative and financial supervision of the mine and concentrator. In the course of the partnership, Chen Moujia borrowed a total of 3.8 million yuan from Feng. After that, Chen Mouyi moved in, and the three signed the "Joint Stock Agreement", stipulating that the debt of 6.8 million yuan before Chen Mouyi joined the house would be borne by the three shareholders. Later, Feng requested Chen X A, Chen X B, and Zhou X to repay their loans. The court of first instance held that the RMB 3.8 million was a partnership debt, which was confirmed by the Joint Stock Agreement, and the three should bear the responsibility for repayment. The court of second instance held that, judging from the time of the formation of the IOU, it belonged to the debts formed after the signing of the Joint Stock Agreement, which was not within the scope of 6.8 million yuan, and Chen and Zhou did not sign the IOU. The debt should be repaid by Chen Moujia personally. The retrial court held that the comprehensive existing evidence could prove that the fact that Chen Moujia formed a debt of 3.8 million yuan for the partnership's external loans not only existed, but also belonged to the partnership debt formed during the partnership with Zhou, and was jointly confirmed by the three when signing the Joint Stock Agreement. Therefore, Chen X A, Zhou X and Chen X B should be jointly and severally liable to Feng X for repayment.
5. Analysis
According to Article 970 of the Civil Code, the partners may make an agreement on the execution of partnership affairs. According to Article 973 of the Civil Code, all partners shall be jointly and severally liable for debts arising from the execution of partnership affairs. In this case, the "Contract" signed by Chen Moujia and Zhou stipulated that Chen Moujia was solely responsible for the operation and production affairs of the mine and concentrator during the cooperation between the two. Chen Moujia borrowed funds for partnership affairs, which fell within the scope of the performance of the business and production affairs agreed in the aforementioned contract, so Zhou should bear joint and several liability. After Chen Mouyi moved in, the "Joint Stock Agreement" signed by the three clearly stipulated that the debt of 6.8 million yuan owed by a mine to the outside world was jointly borne by the three shareholders. Therefore, Chen Mouyi should also be jointly and severally liable for the debt.