Partnership Guide | Author: Li Li
This is the 913th text of Li Li's blog and partnership guide public account
The part of the capital invested by the partners exceeds the capital contribution, and the court orders the partnership to return it
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Whether it is a shareholder of a company or a partner of a partnership, when investing funds in a company or partnership, it must pay attention to operating in accordance with legal norms, and clarify the nature of the funds and the corresponding legal relationship. In this regard, examples of significant legal risks have not been uncommon in recent years in corporate law-related litigation. I have also specifically mentioned this in my notes and articles in the past. Today, let's look at a case in which the funds invested by the partners in the company exceeded their agreed capital contribution, and the excess was returned by the court judgment by the partnership.
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The basic facts of the case are not complicated.
On February 2, 2016, plaintiff Zhang signed a Partnership Agreement with defendant Dong, outsider Li Jia and Li Yi for the establishment of Defendant A Enterprise.
The Partnership Agreement stipulates that the operating period of the partnership shall be 20 years, calculated from the date of establishment of the partnership. The date on which the business license of the partnership enterprise is issued is the date of establishment of the partnership; the defendant Dong is the general partner, the plaintiff Zhang X, the outsider Li Jia and Li Yi are all limited partners; the defendant Dong X subscribes to contribute 3,000,000 yuan, with a subscription ratio of 37.5%, Li Jia subscribes to contribute 1,500,000 yuan and the subscription ratio of 18.75%, the plaintiff subscribes to contribute 1,500,000 yuan and the subscription ratio is 18.75%, and Li Yi subscribes to contribute 2,000,000 yuan and subscribes 25%. The above-mentioned capital contribution payment period is until December 31, 2035.
According to the Partnership Agreement and subsequent information on the registration of the enterprise, the plaintiff, Mr. Zhang, was a limited partner of the partnership (Enterprise A).
The Partnership Agreement also stipulates that at any time after the establishment of the partnership, if it is necessary for business purposes and all the partners agree unanimously, the subscribed capital contribution of all the partners may be increased or decreased; the partnership debt shall be repaid first in the partnership property. When the partnership assets are insufficient to pay off, the limited partner bears limited liability within the subscribed capital contribution, and the general partner bears unlimited liability; the defendant Dong is the partner in the execution of the partnership affairs. The partners of the managing partner affairs represent the enterprise externally and perform the partnership affairs, and the other partners no longer perform the partnership affairs.
On February 27, 2016, plaintiff Zhang mou remitted RMB1,500,000 to defendant Enterprise A, and the purpose of the remittance was indicated as "transfer".
At this point, it is still very normal, and the plaintiff Zhang Mou has completed the obligation to contribute to enterprise A. However, subsequently, after 2 months, the plaintiff Zhang Mou made another payment to Enterprise A. On April 30, 2016, plaintiff Zhang mou remitted 750,000 yuan to defendant Enterprise A, and the purpose of the remittance was indicated as "transfer". It was this amount that triggered the lawsuit in this case.
On May 5, 2016, due to the transfer of the property share of the partnership, Enterprise A re-signed a partnership agreement, which changed the subscribed capital contribution and subscription ratio of each partner accordingly: defendant Dong X subscribed for 4,500,000 yuan and subscribed 56.25%; the plaintiff subscribed 1,500,000 yuan with a subscription ratio of 18.75%; and Li Yi subscribed to the capital contribution of 2,000,000 yuan and subscribed 25%. The remaining agreements are basically consistent with the Partnership Agreement signed on 2 February 2016.
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First instance trial
For the RMB 750,000 remitted to Enterprise A on April 30, 2016, Mr. Zhang filed a lawsuit with the court on May 7, 2018, requesting: 1. Ordering Defendant Enterprise A to return RMB750,000; 2. Ordering Defendant Dong to bear unlimited joint and several liability for the above-mentioned repayment obligations of Defendant Enterprise A.
The reason for the plaintiff Zhang's statement is as follows: On February 2, 2016, the plaintiff signed a partnership agreement with the defendant, Dong. In the same year, the plaintiff and the defendant, Mr. Dong, signed a partnership agreement for Shanghai Enterprise A (Limited Partnership). Both partnership agreements stipulated that the plaintiff's subscription ratio was 18.75%, and the capital contribution was 1,500,000 yuan. Subsequently, at the request of defendant Dong, the plaintiff transferred a total of RMB2,250,000 in two installments on February 27, 2016 and April 30, 2016. Because the plaintiff's actual transfer had exceeded the subscribed capital contribution, the plaintiff repeatedly contacted the two defendants to request the transfer of the funds transferred, but neither defendant cooperated. The plaintiff argued that the portion of the plaintiff's capital contribution overcharged by defendant Enterprise A should be returned. Defendant Dong, as the general partner in the execution of the affairs, shall bear joint and several liability.
The plaintiff did not explain in the complaint why it remitted $750,000 to Enterprise A on April 30, 2016.
Defendant Enterprise A requested the court to dismiss the plaintiff's claim.
Defendant A's reasons were:
I. The plaintiff of the underlying legal relationship sued in this case is defined as a "partnership agreement dispute", which is an error in the underlying legal relationship. Partnership agreement disputes Under contract disputes, the corresponding legal relationship is an individual partnership as stipulated in the General Principles of the Civil Law of the People's Republic of China. Defendant A is an unincorporated organization and is subject to the partnership law;
2. The signing date of the Shanghai Enterprise A (Limited Partnership) Partnership Agreement submitted by the plaintiff was May 5, 2016, while the establishment time of defendant A was February 3, 2016. Obviously, at the time of signing the above-mentioned partnership agreement, the enterprise constitution of defendant A already existed. However, the partnership agreement did not contain the enterprise constitution of enterprise A, so the agreement did not bind the defendant, Shanghai enterprise A. As a limited partner of defendant Shanghai Enterprise A, the plaintiff could only sue Defendant Enterprise A for three reasons: joining the company, withdrawing from the partnership, and dispute over the transfer of property shares. In addition, Defendant A did not infringe any rights and interests of the plaintiff;
3. The plaintiff's payment time is after the first partnership agreement, that is, the agreement dated February 2, 2016, so it should know the amount of capital contribution. It is unreasonable for the plaintiff to continue to pay defendant Enterprise A when he knows the amount of capital contribution, but at least it shows that the plaintiff's payment is not only the amount of subscribed capital. According to the principle of who claims and who produces evidence, the plaintiff should prove his or her claim, otherwise he should bear adverse consequences;
4. According to the principle that the law can act without prohibition, the law does not prohibit the limited partners of a partnership from providing partnership funds for the development and growth of the partnership. The provision of funds may take the form of sponsorship or loan, which should be borne by the plaintiff. Judging from the partnership agreement, the scope of partnership operation is industrial investment, investment management, etc., and defendant Enterprise A is one of the shareholders of Company B, and Company B is preparing to go public. As a plaintiff, it is also reasonable to provide funds to the defendant Shanghai Enterprise A. In summary.
The defendant's statement at the first instance was very strange, not only did not provide evidence to prove the basis for collecting the 750,000 yuan, but also put the burden of proof on the plaintiff. In particular, the first and second reasons are unclear, like insufficient litigation preparation.
The court of first instance upheld all of the plaintiff's claims and held that: first, the defendant Shanghai Enterprise A (Limited Partnership) should return plaintiff Zhang X 750,000 yuan within 10 days from the effective date of this judgment;
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The defendant at first instance appealed and replaced the agent ad litem, but it was clearly too late. I remember that the day before yesterday, when I wrote a note on the revision of the Civil Procedure Law, I said, "We must pay special attention to the litigation preparation of the first instance," and the defendant at the first instance is a counterexample.
The two defendants of the first instance jointly appealed: the first-instance judgment was revoked, and the judgment was changed to reject all of Zhang's litigation claims of the first-instance trial.
The facts and grounds of the appeal are:
A review reveals the factual error. The court of first instance did not fully ascertain the nature and reasons for the payment made by Mr. Zhang, but simply found that the return was the amount of RMB750,000 in dispute on the grounds that the amount agreed upon in the written partnership agreement was inconsistent with the amount agreed upon in the written partnership agreement and the two appellants could not produce evidence, which lacked factual basis. According to the partnership agreement at that time, Zhang only needed to pay 1,500,000 yuan for the capital contribution, why did he pay 750,000 yuan again after the initial transfer, and then did not raise any objection until two years later, which was obviously unreasonable. In fact, according to the WeChat chat record evidence provided by the two appellants, the parties had an oral agreement to invest in Company B at a premium of 1.5 times, and Zhang was only a nominal investor, and the actual investor was his sister. Now that the parties have fulfilled their payment obligations and completed their investment behavior as agreed, Zhang Mou's request for the return of the payment on the grounds of unjust enrichment lacks a basis and should not be supported.
The appellant, that is, the defendant of the first instance, in the grounds of appeal, the only one that is more solid is the Evidence of WeChat chat records, and the others are floating clouds.
But the question is whether the Evidence of WeChat chat records can reflect the facts and whether it can play a role in proving.
The WeChat evidence submitted by the appellant was a notarial certificate of SMS chat records between Lu X and Zhang X, an outsider in the case, and a notarized certificate of WeChat chat records with Zhang Hongying, to prove that Zhang X was only a nominal investor, and that the actual investor Zhang X's sister and Lu X had negotiated to invest in Company B at a premium of 1.5 times the original subscribed capital contribution; 2. The transfer records of Enterprise A to Company B proved that most of the capital contributions of Zhang and Li Yi had been transferred to Company B.
The Court of Second Instance held that:
The focus of the dispute in this case was whether Enterprise A should return Mr. Zhang's investment payment of RMB750,000.
Based on the facts ascertained in this case, the Partnership Agreement signed by the parties involved in the case on February 2, 2016 expressly stipulated that The amount of capital subscribed by Mr. Zhang was RMB1,500,000, and the Amount of Capital Contribution of Enterprise A (Limited Partnership) signed by the parties on May 5, 2016 after Mr. Zhang paid the disputed capital contribution on February 27, 2016 and April 30, 2016, after Mr. Zhang paid the disputed capital contribution, the parties signed the Shanghai Enterprise A (Limited Partnership) Partnership Agreement on May 5, 2016. And the changed industrial and commercial registration still confirms that Zhang's capital contribution is 1,500,000 yuan. Therefore, with regard to the amount of capital contributed by Mr. Zhang's investment in enterprise A, the two partnership agreements and industrial and commercial registrations were unanimously specified as RMB1,500,000, and there were no increased investments described by the two appellants.
As for the chat records between outsiders provided by the two appellants, one cannot represent the true intentions between the parties in this case, and the other is that its vague and fragmentary content is not sufficient to overturn the written partnership agreement.
Therefore, in the case that Mr. Zhang actually paid RMB2,250,000, and Enterprise A neither recorded the excess RMB750,000 in the amount of Mr. Zhang's capital contribution, nor did it produce evidence to prove that there were other agreements or uses between the parties, Mr. Zhang's claim for the return of the money in this case should be supported according to law. As the general partner, Mr. Dong shall bear unlimited joint and several liability for the return obligation of enterprise A.
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The plaintiff erroneously believed that the burden of proof lay with the defendant at first instance, resulting in almost no strong rebuttal at first instance.
From an empirical point of view, after Zhang Mou has completed the obligation to contribute, after 2 months, he has made a sum of 750,000 yuan to Enterprise A, which is difficult to understand whether it is an operational error or a calculation error, and it is estimated that there are other reasons.
But the problem is that on this point, the evidence presented by Enterprise A in the second instance trial is very insufficient, and perhaps there is no evidence left at that time.
From the perspective of standardized operation, when Enterprise A receives the 750,000 yuan remitted by Zhang, it should confirm its legal basis in a timely manner, either with a contractual agreement between the two parties, or with a unilateral commitment or statement, so as to determine the nature of the money, and then accurately bookkeeping. Enterprise A's management in this part is obviously missing, which may be the lesson to be learned from this defeat.