【Judicial Summary】
The division of partnership property after the dissolution of the partnership is not conditional on the completion of the liquidation of all the assets and debts of the partnership, and even if the partnership has been dissolved and the division of the partnership property is completed, the partners shall still bear joint and several liability for the partnership debts.
【Case Number】
(2020) SPC Minshen No. 2314
【Subject of litigation】
Retrial applicant (plaintiff in the first instance and appellant in the second instance): Liu Zhirong, male, born on December 15, 1945, Han ethnicity, living in Dehui City, Jilin Province.
Entrusted litigation agents: Zhao Xin, Bi Lili, lawyer of Jilin Hengfeng Law Firm.
Respondent (defendant in the first instance, appellee in the second instance): Liu Fuquan, male, born on September 23, 1970, Han ethnicity, living in Dehui City, Jilin Province.
Entrusted litigation agents: Sun Linhong, Zhang Xueming, lawyer of Jilin Haohuan Law Firm.
The third person in the first instance: Jilin Fushengfa Real Estate Development Co., Ltd. Dehui Branch.
【Basic Information】
The retrial applicant Liu Zhirong applied to this court for a retrial in a dispute over a partnership agreement with the respondent Liu Fuquan and the third party of the first instance, Jilin Fushengfa Real Estate Development Co., Ltd. Dehui Branch (hereinafter referred to as Fushengfa Dehui Branch), and applied to this court for a retrial of the (2019) Jimin Zhong No. 417 Civil Judgment rendered by the Jilin Provincial Higher People's Court (hereinafter referred to as the Court of Second Instance). This court formed a collegial panel in accordance with law to conduct a review, and the review has now been concluded.
【Liu Zhirong's application for retrial】
(1) The partnership agreed in the Agreement on the Joint Development of the ZhenjinmingJun Project and the Hengkelong Hypermarket (hereinafter referred to as the Joint Development Agreement) signed by the two parties is the joint development and construction of Buildings 1 and No. 2 of the Zhenjinmingjun Community in Dehui City (hereinafter referred to as the Zhenjinmingjun Community). The two buildings are located on the same plot, and the land delisting fee paid by Liu Zhirong includes the entire plot. The rights and obligations of both parties in the partnership agreement are clear, and the projects under construction in Building 1 and Building 2 of Zhenjinming County Community are the property of the partnership.
(2) The preliminary development and construction costs of Building 1 and Building 2 of Zhenjinming County Community were all funded by Liu Zhirong, including a demolition deposit of RMB6.82 million, land delisting fees and construction costs. Liu Fuquan's capital contributions were all borrowed from the houses in the project under construction as collateral, Liu Zhirong was a co-borrower, and some of the loans were used to pay off the debts with the buildings in the projects involved in the case, and Liu Fuquan personally did not actually contribute.
(3) The part of the construction in Buildings 1 and 2 of Zhenjinming County Community has been delivered for use, although it has not been accepted, it does not affect Liu Zhirong's requirement to divide the partnership property proportionally. The divisible partnership property is the house under construction of Building 1 and Building 2 of ZhenjinMing county Community, which is partially deducted from the relocation and resettlement and the roofing project. In summary, Liu Zhirong applied for a retrial in accordance with the provisions of Article 200, Item 2 of the Civil Procedure Law of the People's Republic of China.
【Respondent's Defense】
Liu Fuquan submitted a written opinion saying that because Liu Zhirong did not perform the obligations stipulated in the joint development agreement, Liu Fuquan terminated the joint development agreement with Liu Zhirong in advance. Liu Zhirong only contributed 1.74 million yuan in the initial stage of the partnership, and in the following one year, Liu Zhirong borrowed 1.744 million yuan from the partnership funds, and all the partnership contributions were withdrawn in disguise, which should be regarded as Liu Zhirong's withdrawal. Liu Fuquan personally invested 21.62 million yuan. Except for the relocated houses and the houses in debt payment, there were no vacant houses to divide, and the court of first instance ruled that Liu Zhirong's litigation request for the division of the partnership property was correct.
【The court held】
This case is a partnership agreement dispute, and the focus of this case review is on the scope of the partnership matters and whether the partnership property should be divided.
Questions about the scope of partnership matters.
First, the two parties agreed in the joint development agreement to jointly develop the Zhenjinming County Community Project, if there is no special statement, it should refer to the overall project of the Zhenjinming County Community including Building 1 and Building 2, and now Liu Fuquan claims that only Building 1 is the scope of the partnership between the two parties, Building 2 is unilaterally funded and operated by Liu Fuquan, and Liu Fuquan should bear the corresponding burden of proof. Liu Fuquan actually operated Fusheng Fa Dehui Branch, had more evidentiary materials related to the development and construction of the project involved in the case, and was in a more favorable position in the production of evidence, and the court of first instance found that the scope of the partnership property was Building 1 of Zhenjinming County, on the grounds that Liu Zhirong failed to produce evidence to prove that there was a contribution and joint operation of building 2, and the burden of proof was wrongly assumed, and the basis for determining the facts was insufficient.
Second, the 6.82 million yuan of the demolition deposit for the project involved in the case included the funds contributed by Liu Zhirong. Liu Fuquan borrowed money in the name of Liu Zhirong and Liu Fuquan in the name of the partnership for the development and construction of the project involved in the case, and the relevant judgment ordered Liu Zhirong to bear joint and several repayment liability, the above facts show that Liu Zhirong had invested in the partnership matters, and according to the existing evidence, it cannot be determined that Liu Zhirong's capital contribution was only used for the development and construction of Building 1. Third, the case involved the development and construction of the project in stages, whether Liu Fuquan borrowed money with the property of Building 1 as collateral when developing and constructing Building 2, Liu Fuquan needed to provide relevant account books and other information on the development and construction of the Zhenjinming County Community Community Project to find out the facts, Liu Zhirong applied to the court to collect evidence during the original trial, but the court of first instance did not require Liu Fuquan to provide the above account books, and this issue was not clarified.
On the question of whether the Court of First Instance should hear the division of the partnership property.
First, the division of partnership property after the dissolution of the partnership is not conditional on the completion of the liquidation of the partnership assets and debts, and even if the partnership has been dissolved and the division of the partnership property is completed, the partners should still bear joint and several liability for the partnership debts. Although some of the litigation concerning partnership debts has not been heard or executed, they can be heard and judged on the basis of existing assets and debts that can be determined, and it is not necessary to wait for all partnership debts to be clarified before the partnership property can be divided.
Second, Liu Zhirong has now been determined by the effective judgment of the court to bear the partnership debt, and if the corresponding partnership property is not distributed, it is obviously unfair to Liu Zhirong.
Third, third, since Liu Zhirong and Liu Fuquan jointly developed and constructed the Zhenjinmingjun Community Project in the name of Jilin Fushengfa Real Estate Development Co., Ltd. (hereinafter referred to as Fushengfa Company), the relevant licenses for the development and construction of the Zhenjinmingjun Community were all handled under the name of Fushengfa Company, and the scope of the partnership property of Liu Zhirong and Liu Fuquan was also related to the interests of Fushengfa Company, the court of first instance did not clarify this. In summary, in accordance with Articles 204 and 206 of the Civil Procedure Law of the People's Republic of China and Article 395, Paragraph 1 of the Interpretation of the Supreme People's Court on the Application of the> < of the Civil Procedure Law of the People's Republic of China, this Court ruled as follows:
1. Instruct the Jilin Provincial High People's Court to retry the case;
2. During the retrial period, the enforcement of the original judgment shall be suspended.