I acting together through litigation relief partnership agreement, and demanded the return of investment case, the Guangzhou intermediate people's court has made a final decision my client wins. Agents from the case of view, is not a termination of the partnership agreement return investment fund, but the key to this case is to determine the refundable amount of investment, because this kind of case is often a side in the partnership business after a period of time, and the investment can be returned in part for partnership operating profit and loss situation changes, then as a suit of one side, how to determine the retreat investment funds to clear the litigation request, is very important, but in this case it is the key fact after many twists and turns, the necessity of this kind of case in the case of the following audit analysis under.

   The case is actually very simple, A and B signed a partnership agreement, agreed A invested 100000 yuan, B 250000 yuan investment, joint operation of a chess floor monthly bonus according to 30%, the ratio of 70&, and the two sides also agreed that financial management B for chess pailou, both funded chess floor began operation. Three months after operation, the B were not to the A bonus, A to the court to request the lifting of the partnership agreement and return investment fund 100000 yuan. In the first instance, A and B agreed to terminate the contract, but the profit and loss of chess, there are different views, A argues that profit, B argued that loss, B is also proposed to produce financial statements, display card, there is a loss of 18000 yuan, but the two sides did not put forward the audit requirements. A will not agree to audit based on, the lawyers to apply to the court for investigation, submit to the tax authorities and the financial statements, but because the chess archway set up time is relatively short fails to submit a report without fruit. The court of first instance that does not adhere to the application by the court of audit A Ming after release, so the A could not bear the burden of proof of their claims shall bear the burden of unfavorable consequences, to reject the A return investment fund for. A the verdict of the first trial of appeal, for two reasons, one is the improper allocation of burden of proof, the chess decorated archway of the operation of B is more capable of proof; the court of first instance for the B financial statements provided by this evidence does not make the determination. After the court of the second, adoption of the B's financial statements, decision B and chess, pay 82000 to A.

   Looking from this case, although A and B have put forward different ideas of profit and loss, the court should also apply the principle of "B who advocate who burden" to determine the not exempt proof obligations, and because B is directly involved in financial management, the comparison is more has the ability to carry on the burden of proof for the profit and loss status, but A was used as the necessary request for the proceedings to make clear, from the current judicial practice, courts rarely according to the ability of proof burden of proof. So for the A, can not provide tax departments in the chess floor's financial statements, and shall apply for audit. Of course, in this case because B has provided financial statements, so the court of second instance such decision is no problem.

The word

Respected judge, judge:

   Guangdong Shun Hua law firm lawyers Hu Dingfeng, Zhou Xiaoni accepted the A agent with the chess club \B contractual dispute case, the lawyers on both sides of the case evidence, and participated in the trial procedure, we make the following agents for Collegiate reference:

A, A and B both sides confirmed: A actual investment of 143750.98 yuan, and during the period of 2009 May to August should bear the loss of 18132.09 yuan, court shall decide the.

A and B joint venture, cooperative business chess club, where A has invested 143750.98 yuan, the two sides have confirmed the fact in the first instance. The second trial court to withdraw the application for A in the audit, and confirm that B provides loss monthly report (evidence 4) authenticity, recognized B claim amount of loss and the A club should bear the loss amount. According to the "Regulations" provisions of civil action evidence, both parties confirm the fact, without further proof, the court shall determine that the.

In two, B proposed in the A investment deduct liquidated damages, misappropriation of funds totaling 105534.69 yuan claims, no factual and legal basis, the court should not support.

1, B argues that independent litigation request, B not in accordance with the legal provisions to the counterclaim form or further prosecution way forward. B proposed in A return of investment proceeds deductible damages for breach of contract and misappropriation of funds, to offset the negative part of A and non litigation request, is independent of the A litigation request outside the lawsuit, according to the "Civil Procedure Law", the B shall, within the prescribed time limit, a counter claim, or be prosecuted. The case for B no files a counterclaim, the court shall inform the prosecution trial separately, and not the claim relates to the facts and evidence.

The claim no factual and legal basis for 2, B, the following that one:

(1) B that A violates the agreement the provisions of article tenth shall pay liquidated damages of 28750.2 yuan, is the B understanding of the terms of the contract error. "Cooperation agreement" clause tenth, the investor shall fully funded, otherwise do give up investment cooperation in accordance with the investment of 20% compensation. The A has been in accordance with the contract agreed in May 1, 2009 will invest 100000 yuan to the original operator and the club, club decoration additionally increased investment from May to August 2009, the daily management of A in the club, so A does not exist under funded, give up investment, no need to pay liquidated damages.

(2) B A returned turnover gold 3000 yuan, work clothes 2000 yuan deposit, and that the A exists without the approval of the self report receipts 1009 yuan in the renovation period (evidence 8) and multiple daily decoration receipt (exhibit 9) 53643.4 yuan, for the return of the amount.

A revolving fund and working clothes deposit, because A is not responsible for the financial management of the club, so the revolving fund has been used for the club daily expenses, expenses have been paid the deposit turnover accounted for, and have instant by the cashier B.

B stands for "without approval from receipt of payment", is actually A buy fast food for the staff and the decoration workers spending. According to the two sides signed the "financial", agreed by the A for the club management, signing and approval within 2000 yuan daily spending and procurement. So A spending this meal is the financial system according to the performance of both sides agreed, daily management and expense.

B argues that some decoration receipt has reported, there is no basis. Because receipts have been obtained the cashier B approval, shall be recorded expenditure, while the decoration, has been in accordance with the proportion of investment accounted for two of investors additional investment, and the B subjective think decoration materials prices A buy high, but also did not provide the relevant market price statistics as evaluation criteria.

The foresaid opinions of collegiate bench, please reference!

                                 Guangdong Shun Hua Law Firm

                                 Hu Dingfeng, Zhou Xiaoni

Two May 11th, ten years