Drawing Shen Jiangjiang
Friends and relatives working together to do business is a good thing for mutual benefit and win-win results, but in the actual business process, it is easy to cause disputes because of decision-making and profit distribution. Recently, the Gaoyou Court held a hearing on such a partnership dispute case - a pair of cousins partnered to open a milk tea shop, due to lack of funds and lack of experience, the business was difficult to maintain, the cousin sued the cousin in court for 234,000 yuan of investment funds, and the cousin claimed to lend the cousin 100,000 yuan to open a shop, and now wants to recover. Both parties have proposed to terminate the partnership, which is right or wrong? How will the court decide?
Joint store opening No agreement is signed
In August 2020, Jingjing and her cousin Xiaofeng discussed investing in business together, and the two sides decided to jointly open a milk tea shop. Once the investment direction is determined, everything is proceeding step by step. Jingjing was introduced by friends and was busy contacting franchise companies, personnel training, leasing shops, store site selection, and handling business licenses. While preparing for the opening of the store, Jingjing negotiated with Xiao Feng about the investment funds. During this period, Xiaofeng successively invested 234,000 yuan, while Jingjing's actual investment was 100,000 yuan.
Half a month later, with the approval of the relevant local departments of Gaoyou, Jingjing became the operator of the store.
The two of them had thought of doing a big job, but it backfired. Because considering that they were related, the two did not sign a written agreement in advance, and they encountered some difficulties in choosing a store, and the actual start-up capital required far exceeded their expectations. Jingjing wants to pull people to cooperate in business, however, relatives and friends around her also have many concerns.
Open the store and shelve the cousins and brothers fall out
Difficulties in raising funds have been encountered, and the investment project of the milk tea shop can only be shelved for the time being. The hundreds of thousands of yuan invested in the early stage seemed to be adrift for a while.
Jingjing was a little shaken, she and her cousin discussed, "This 100,000 yuan should be lent to you, the milk tea shop will be run by you alone in the future, I will give you a job." ”
Jingjing's proposal failed to gain her cousin's approval. "My losses are even worse, and besides, the business license is handled in your name, and my losses should be compensated by you."
The two sides had an unpleasant quarrel over this, the cousin wanted to recover his investment money, and the cousin also wanted to recover 100,000 yuan of funds. Jingjing said, "The 100,000 yuan I invested in the beginning was lent to you to do business, and you should return it in time." ”
The two sides consulted privately several times, but because of their different opinions, they never reached an agreement.
What is right and wrong? The court ruled
In the end, Xiao Feng submitted a complaint to the Gaoyou Court and sued her cousin in court. Recently, the Gaoyou Court held a hearing on the dispute. Xiaofeng's litigation request is that the court order the termination of the investment agreement between them and order her cousin to return her investment amount of 234,000 yuan and interest.
The court found that the WeChat chat records provided by the plaintiff and the defendant from August 2020 to September 2020 intended to claim that the plaintiff and the defendant had reached a partnership intention to operate a milk tea shop. During the trial, the defendant approved the plaintiff's investment of 234,000 yuan in the milk tea shop. The defendant admitted to investing 100,000 yuan in the milk tea shop, and also proposed that the 100,000 yuan was lent to the plaintiff.
Article 967 of the Civil Code of the People's Republic of China stipulates: "A partnership contract is an agreement concluded by two or more partners to share benefits and share risks for the purpose of common undertakings". The court held that the defendant invested 100,000 yuan in the milk tea shop project, the defendant participated in the external operation of the milk tea shop project in his own name and actually needed to bear the risk, and the court preferred that the 100,000 yuan invested by the defendant was not a loan. Although no written partnership agreement was signed between the plaintiff and the defendant, the plaintiff and the defendant jointly invested, jointly operated, shared benefits and shared risks, and it should be found that a de facto partnership relationship was formed.
The court also held that the plaintiff and the defendant had not signed a written partnership agreement, the parties had no agreement or unclear agreement on the cost of the partnership, capital investment, partnership operation and management, and the amount of investment to be invested by each party, and the plaintiff had failed to provide other evidence to prove the amount of investment that the defendant had to fulfill, so the court did not accept the fact that the plaintiff had not fulfilled its obligation to contribute capital to the defendant.
In addition, in this case, there was no agreement between the partners on the withdrawal of the partnership, no separate withdrawal agreement was reached, and no liquidation was carried out on the partnership property, resulting in the property of the partnership not being determined, the creditor's rights and debts during the partnership period also not being determined, and the plaintiff did not apply to the relevant departments for audit and appraisal, so the plaintiff's request for the return of the funds originally invested in the partnership affairs lacked legal basis.
In accordance with the provisions of the law, the court dissolved the partnership between the plaintiff and the defendant in accordance with the law and dismissed the plaintiff's other claims.
Judge reminds
Partnerships doing business shall enter into a written agreement
In recent years, cases of partnership contract disputes arising from partnership business have occurred frequently, and are mostly found in partnership cooperation between friends, relatives and families.
The judge in charge of the case analyzed that the cooperation between relatives to do business could have achieved complementary advantages, and the main problem that led them to court was that the two parties did not sign a written agreement before the partnership. The judge reminded that even relatives cannot arbitrarily make verbal agreements when doing business in partnership, and it is best to write the terms of the agreement clearly in black and white, clarifying the rights, interests, duties and responsibilities of all parties. The partnership should be subject to a written agreement, and even if a dispute occurs in the future, it can smoothly protect the rights. (The characters in the text are pseudonyms)
Correspondent Ye Xiaohong Reporter Huang Jing
【Source: Yangzhou Network_Yangzhou Focus】
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