"People law" thirtieth stipulation: the individual partnership refers to two or more citizens in accordance with the agreement, each providing funds, goods, technologies, partnership, joint labor. "Partnership enterprise law of the people's Republic of China (hereinafter referred to as" 'partnership') the provisions of article second "partnership enterprise, is in accordance with established in the territory of the Chinese by all the partners to make a partnership agreement, joint venture, partnership, profit sharing, risk sharing, and the debts of the partnership for bear unlimited joint and several the responsibility of for-profit organizations." Therefore, the partnership and the partnership enterprise, is a kind of economic sectors in recent years in our country's economic activities in the active. Because the partnership and the partnership enterprise attended by many people, a partner in kind of equal status, sometimes business strategy and position, and avoid loss for the surplus, prone to divergence. Especially some partnership or partnership no partnership agreement or the partnership agreement is too simple, many important matters not agreed or agreed is not clear, but also prone to disputes. The trial partnership internal disputes should apply the "general principles of civil law", the partnership enterprise shall apply the trial internal disputes "partnership law". "General principles of civil law" no provisions may apply "partnership enterprise law not detailed or regulations". Both the internal disputes or partnership, partnership enterprise internal disputes, can be called a partnership agreement disputes. In the case of a dispute, should pay attention to the following issues in a prominent.

One, correctly grasp the basic principles for the treatment of the partnership agreement disputes

1The most essential feature, master partnership. In accordance with the "general principles of civil law", "individual partnership refers to two or more citizens in accordance with the agreement, each providing funds, material, technology partnerships, joint labor. And partner on the contribution amount, distribution of surplus, debts, occupation, withdrawal from partnership, partnership termination, conclude a written agreement. The debts of the partnership, the partners according to the proportion of investment or agreement, shall be liable to the respective property. This is, as a partnership, the most notable feature is the joint investment, joint management, risks, profits and losses and Co. This is the "general rules of the civil law" to the partnership law. "Partnership law" provisions of the more clear and specific.

2 , partnership agreement does not allow some people only enjoy the agreed interest, not to take risks. "Partnership law" the thirty-second regulation, "partnership profits and losses, agreed by all the partners according to the partnership agreement ratio and Dan; at the end of the partnership agreement agreed profit and loss sharing ratio, the average distribution of each partner shall share. The partnership agreement may not stipulate that all the profits to part of the partners or borne by the partners of all losses."

3 , withdrawing partner, must be agreed by all the partners, if not agreed, due to withdrawal and causes losses to the partnership to compensation. "Partnership law" stipulates that the forty-seventh "is not specified in the partnership agreement the term of operation of the partnership affairs, partner in adverse not to the partnership under the influence of the withdrawal, can, but the other partners should ahead of time thirty days notice"; the provisions of article forty-eighth "partners in violation of the provisions of the unauthorized withdrawal before two, shall be compensation thus caused to the other partners".

4All partners, jointly and severally liable for the partnership's external debt. That is to say the partnership of foreign debt, undertaken by the property of partnership, the partnership property is not sufficient to pay off debts, all the partners in their own personal property responsibility.

5Investment partnership, partnership property and the partnership property accumulated belong to all the partners Co, co management, Co management.

6The partnership business activities, determined by all the partners, the partners have the right to carry out and supervise.

7Last, partner in clean end of duty, the liquidation of foreign debt, there are still remaining, returned to their investment, and property share profit. "Partnership law" stipulates that the fifty-seventh "partnership enterprise in any of the following circumstances, shall be dissolved: (a run) partnership agreement expires, the partners are unwilling to continue the business: (two) the reasons for dissolution as specified in the partnership agreement; (three) all the partners decide to dissolve; (four) the partners do not have preparation of the quorum prescribed in the partnership agreement; (five) the purpose of partnership has been achieved or not achieved; (six) the revocation of business executive; (seven) the other regulations of law, administrative regulations of the dissolution of the partnership." Sixtieth rule "the property of the partnership enterprise in the liquidation expenses, according to the following order of priority: (a) owed by the enterprise wages and labor insurance workers hired; (two) taxes owed by the partnership; (three) the partnership debt; (four) the return of the partner's investment. The property of the partnership enterprise in accordance with the above order liquidation after the remaining, distribution according to the provisions of the first paragraph of this article thirty-second ratio."

Two, how to determine whether the establishment of partnership

Although ran "general principles of civil law" and "partnership enterprise law" has a clear regulation to the partnership and the partnership enterprise, required either general partnerships or partnership enterprises should have the partnership agreement, and in the partnership agreement clearly partnership staff, to register the business sector to , nature in the partnership agreement clearly partnership. But in practice it often do not match or not consistent with the laws and regulations, provisions of many things. For example, some registered as a pure individual industrial and commercial households, but arguably is partnership, some registered as a collective enterprise, but at the end of the collective and investment; some national staff or enterprises responsible person have the business, but the state does not allow to do business, is registered as he man in the name of word; some registration is one or a few people, but in fact the investors or the word is another person; and the registration and the staff is not the same. These are give The partnership that has caused many difficulties. And we can't just according to the registration and there is no agreement to simply as a partnership with and without.

1, registered as a partnership, and clear the partnership agreement, and registration, protocol and the actual situation completely Consistent, identified as partnership, should be beyond all doubt;

2The partnership, partnership law to "joint investment, joint management" this is a general principle. Practice and some do not participate in the operation, and some to the technology investment should also be allowed to. The Supreme People's court "several opinions on implementing the" general rules of the civil law46Article stipulates that "citizens provide funds or in kind in accordance with the agreement, and agreed to participate in the joint distribution of surplus, but does not participate in the partnership business, labor, or to provide technical service and does not provide financial, physical, but agreed to participate in the distribution of surplus, as partners".

3, registration is a part, is another part of people, or one member of inconsistent but mutually are not dispute, should be recognized as a partnership, and should be based on the non controversial opinions just identified.

4The registration of collective enterprises, but the actual is according to the processing of personal partnership partnership should be. The "comments" section49"Individual partnership or individual industrial and commercial households, by the administrative department for Industry and commerce registration error to collective ownership of enterprises, but the actual individual partnership or individual industrial and commercial households, should be based on the individual partnership or individual industrial and commercial households treat.

5There are two people that, oral partnership. "The opinions" article50"The parties have no written partnership agreement, and without the approval of the administrative department for Industry and Commerce approved the registration, but have other conditions of the partnership, and more than two non interested proved to have a verbal agreement of partnership, the people's court may determine the partnership.

6After entering into a partnership, whether as a partner. The "comments" section51"The increase in partnership business in the process, a written agreement agreed, subject to consent by all the partners, without the consent of all the partners shall be deemed invalid, occupation." That is to say, After the consent of all the partners of the effective identification. That without the consent of all the partners is invalid, can not be identified.

7In the course of business, the withdrawal is also identified as partners. "The opinions" article52The "withdrawing partner, written agreed, according to the written agreement; written agreement did not agree, in principle shall be permitted. But because of its withdrawal from causing loss to the other things people, should consider the reasons for his withdrawal, reason and double party at fault, shall bear the liability to pay compensation to determine the." That is to say with withdrawal conditions according to the written agreement, the withdrawing partner before withdrawing, before the transaction on a partnership deal, after withdrawal does not assume responsibility partner . Do not meet the conditions of their own invalid withdrawal withdrawal, the withdrawal from both before and after the partners from first to last, bear the responsibility. No written agreement he proposed withdrawal withdrawal can be recognized, but as a result of the withdrawal of loss loss, to consider the reason why the degree of fault, and shall bear corresponding liability for compensation. It is no longer a partner in the partnership after. But its withdrawal before the dispute is still between the partners disputes.

Three, common partnership disputes

He Gang disputes the most is the essence of the rights and interests of the dispute. In the profit when some people want to exclude the possibility of another part of the partner qualification, or some people want to maintain or fight to the partner's qualification; at a loss when some people want to deny his partner's qualification or want to let other people share with their loss, confirmed that another part of the partner qualification. Then in the occupation or withdrawal issue, both sides or each partner each bosom confidant. In an , earnings, occupation people want to confirm their occupation, losses to confirm their occupation is invalid; the original partners is the opposite; the withdrawal, if there are larger profit partnership, a partner who want to confirm that the withdrawal is invalid, to share and Yi; losses, he wanted to make sure his effective, do not bear the loss, while the other partner is often the contrary.

1 , confirm the partnership disputes. Some people lack of funds in the handling of individual industrial and commercial households or partnership, to borrow a part or even all of the funds, is completely lending relationship; also some sponsor confined to some reasons, such as in the vocational staff, staff, national cadre and afraid to reveal the rich, in the capital contribution as a partner but verbal agreement not registered at the time of registration; some were saying that vague, earn money not white you; there is the contribution from has the inconvenience of partners with their relatives as husband, wife, son, daughter, father, mother or other person name as a partnership, but not to participate in the business. In these cases, although sometimes the operation continues, it may happen that have partnership. In relation to the business or the nature of the enterprise that partnership, especially related to the economic rights and duties of relevant personnel. Such as together partnerships confirm dispute, the plaintiff is a bank staff, he used the familiarizing yourself with a factory convenience, let the factory to the defendant60Million yuan as funds for the taxi fleet, and let his wife in the partnership, because someone report, he personally used building materials to the factory to the debt, even account. As the taxi is profitable, with his wife and his evil , the plaintiff argues that since he had already used in building materials, the factory is to account, is equal to its own investments. Therefore, asked to confirm their partnership. In this partnership that disputes if that the plaintiff and the defendant is lending relationship, not the partnership; if the partnership is found, it is not a lending relationship. Partnership enjoys share out bonus, and borrowing can only enjoy the interest, the economic benefits of size is not the same.

2 , confirm whether the withdrawal, the disputes. As mentioned before, in the course of business partnership, if profitable, is often in a party that the other party has withdrawal or exclude them from the partnership, or that its occupation is invalid; while the other side is make every attempt requirements identified in effective, no withdrawal, should enjoy the partner qualification. If the loss, the attitude and the request is often opposite. That is not the court for a request for the left right, but should be based on the facts and the law to judge. As in the so-called withdrawal in the dispute, the defendant and the plaintiff by the defendant agreed, investment40Million leased a house as the site,26Million for decoration,10Million for interior decoration, and lent to the plaintiff8Million as of their shares, so a total of58Shares of the investment17A billiard table (19.6Million yuan), net8Million as11.6Both sides share, profit after the stock dividends, management deadline1Years, by each party sends a cashier, to return in the income after decoration. And in the operation after two months, there is a dispute, the plaintiff withdraw the cashier. During the operation, the plaintiff and devotion10Billiard table at7.5Million yuan, the defendant and to buy13Tables,8Million, the number of change of both parties for64Wan Yuanhe19.1Million yuan. The plaintiff in the cashier2Million yuan (the defendants say it away2.9Million yuan). The plaintiff does not see the profit will own the cashier withdraw, asked the defendant to return their investment19.6Million yuan of investment, and the defendant bears interest. The defendant said due to see the business after a period of time not to profit, loss, require shall take away all the billiard table. Because of their huge investment, internal, external decoration and40Million rent paid, and buy13Zhang table. If the plaintiff will be put into the pool table away, their loss is very big, therefore did not agree with the plaintiff withdrawing, they continue to operate. Because the defendant that the first two months of the accounts do not provide the plaintiff, unable to provide evidence whether earnings and surplus profit much, your account is current account, no profit. If the plaintiff demanded withdrawal should not be supported, if the liquidation, so now only the billiard table, should be divided according to the proportion of investment, they should be accounted for the majority of . After the court of first instance over whether earnings not identified, on both sides of the input by the two sides agreed that. At the same time that the plaintiff shall set up according to the plaintiff, defendant input converted into cash to return the plaintiff30Million yuan. The accused, appeal, the case back to the trial court. The court of first instance and the court decided that the defendant returned20Million yuan. In this case, one of the most important is whether the plaintiff's withdrawal was founded. One is that both sides have the partnership agreement, the agreement management1During the year, the agreement, without the consent of the other party may withdraw from. Two is the plaintiff in a billiard table, billiard table if the withdrawal will withdraw, the partnership will not operate. The three is the plaintiff had from the proceeds2Million yuan, such as identification of profit, but can not withdrawal. How can a party only benefit not the losses? So the court finds that the plaintiff's withdrawal is wrong; second, even if that withdrawal, sentence the defendant to return cash with. The operation time of only more than a year, real still input. The implementation of the general principles of the civil law opinion article54The provisions "segmentation when a partner retires property accumulation, including partnership investment property and partnership during the property should be, and the creditor's rights and liabilities of the partnership during the. In the original time principle shall be refunded; a return a difficult, can in a phased return; return the difficulties of the original, can be a discount." This provision is clear, first of all should return the original. Because the plaintiff withdraw the cashier should not be regarded as withdrawal, so I didn't should return. Only in the operating results after the return of existence. So when the return should be according to the law, the liquidation is smooth, the parties property to repel, should also be the common property production. Firstly, according to the ratio of billiard table. From another perspective, the plaintiff only input19.1Million yuan, has taken away2Million yuan, the court get back20Million. The profit ratio14%. As the defendant, put the rent40Million, interior decoration10Million, lend the plaintiff8Million, exterior decoration owe18.6Million, to buy a billiard table8Million, meter80Million, almost no income, net60-70Million. such judgment, almost no fair. Therefore, the case should do clearing for investment funds, on the basis that the two sides investment proportion, if not that profitability, which respond to the business at the end of their property (actually dozens of billiard tables) according to the proportion of investment. If the defendant make billiard table damage to failure, should pay compensation at the market price. That is to say if that withdrawal is not established, then the partner of the partnership should be liable for any loss are .

3, correctly distinguish partnership dissolution and withdrawal. The partnership shall only occur in the dissolution of the partnership, cannot occur in the dissolution of the partnership after. Withdrawing and dissolution in different circumstances, different legal application. Partner's internal disputes, not against external creditors.

(1A dispute over foreign debt) partner. Partner in the partnership dissolved before the withdrawal, sometimes on the external liabilities may come to some agreement, but the agreement cannot withstand external creditors, the Supreme Court "comments" section53The "partnership business during the loss, a partner from the partnership is not agreed to share or reasonable share of the debts of the partnership, a partner who the original partnership debts shall bear liability,; he has shared the debts of the partnership, is jointly and severally liable for the debts of the partnership during in." Because the foreign debt is the relationship between the partnership and other creditors, the problem is not a simple dispute. But in the external creditors prosecution and part of the partners take on debt. condition, will be retired partner is liable for the debts of the problem, it may dispute between thus retired partner and not withdrawing partner.

(2Pay attention to the correct processing ) dissolution of the partnership. The partnership will be in certain circumstances. On the dissolution of a partnership of the condition, "the general principles of the civil law" provisions prescribed by the partnership agreement. There are clear provisions in the partnership law. In partnership dissolution, "partnership law" provisions of article fifty-seven of the "partnership enterprise has temporarily, under any of the following circumstances: (a) the partnership shall be dissolved upon the expiration of the term of operation, the partners are unwilling to continue the business; (two) the reasons for dissolution of the partnership agreement appeared; (three) all the partners decide to dissolve; (four) partner does not have a quorum; (five) the partnership agreement of partnership purpose has been realized or can not be achieved; (six) the business license is revoked in accordance with the law; (seven) other legal, administrative regulations stipulated in the partnership." On the dissolution of a partnership shall carry out liquidation. The liquidators all partners shall bear or designate one or several people for. The liquidation of the mission is to: (a) partnership liquidation property, prepare a balance sheet and an inventory of property; (two) processing and liquidate the unfinished partnership affairs; (three) payment of taxes owed; (four) the creditor's rights and liabilities; (five) the remaining treatment partnership after paying off the debts of property; (six) represent the partnership enterprise to participate in civil litigation. The property of the partnership enterprise in the liquidation expenses, payment of partnership enterprises are owed wages and labor insurance expenses, the workers hired by owed by the partnership, the partnership enterprise producer debts debt, finally returned to the partner's contribution. But the problem in the return on investment, because of his investment scale is different, may be a dispute. For example, some investment housing, such as housing business still, and not the mortgage and other matters, it is easier to return. Some investment is the money, in the finished products or the external debt, it is difficult to return. In these circumstances should execute the agreement and the legal. The partnership law article32"The provisions of partnership profits and losses of the partnership agreement, agreed to by the proportional allocation and sharing is not specified in the partnership agreement; benefit allocation of loss sharing ratio, the average distribution of each partner shall share. The partnership agreement may not stipulate that all the profits to part of the partners or borne by the partners of all losses. "As in partnership with Central Plains8A partner, the first2A proposed withdrawal, because the input is the housing, agreed to refund, you have no objection. After the other6People over a month, decided to dissolve the partnership. Agreement: for principal and profits are put in all external debt, so decided to clean up by one of two partners. To recover the payment according to individual investment proportion of first principal, and also profit. As in the collection of debt and spending, borne by the people according to the proportion of. While in the dissolution of a partnership, in which two people forced liquidation write written evidence, said the two people from a formal withdrawal, principal and profits in one month ago qing. The liquidators reluctantly back money to pay for this two people, because the other payments did not withdraw, some only is the only debt instruments, two people sued to the court. The court found written papers have been transformed into debtor creditor relationship, assume the responsibility judgment also . In this dispute, there is a very obvious problem, since the partnership has dissolved, the partners have signed a partnership agreement, and agreed to withdraw funds according to the proportion of investment the first principal after the profit, why will this agreement tear? There is a disposition principle in the civil law principle. That the parties can dispose of their rights. However, it should be noted that any person to dispose of his rights not to infringe the rights of others. One is two liquidator is against will is under the condition of stress, two of its acts against the other partner's rights. Others didn't recover the principal and the two partners can not only recover the principal and interest, but also a little many back, obviously is not fair, it is not legal. Step back and say, is even count themselves may waive his right to recover the principal words can not be together to give up the rights of others.

4Dissolution of the partnership property, processing. Overall, the partnership should be in accordance with the provisions of the partnership law smooth processing property dissolution. But to specific treatment also should master:

(1 ) partnership, how to handle the property must comply with the laws, rules and regulations. "The provisions of the law, in accordance with the general principles of the civil law" is "and" partnership law "provisions, the provisions for the order. These methods and smooth is not allowed Xu upside down, such as the need to "pay the wages and labor insurance expenses", this is the principles of our constitution, and paying the tax, which is required for the interests of the state; after the liquidation of foreign debt, this is the maintenance of the economic order of the inevitable; finally to return the partner's contribution. Never no matter what order is not sequential, only maliciously.

(2) provisions must comply with the agreement of partnership property. The partnership agreement is partners jointly formulated, small constitution belongs to the partners "". The "comments" section55Provisions, "termination of the partnership, the partnership property deal, a written agreement by written agreement."

(3If no written agreement) by most people or property more amount of processing, but to protect minority interests. Ibid55Provisions, "no written agreement negotiations fail, if the partner's contribution is equal, should consider the opinions to the majority; partner contributions of different views, according to investment accounted for the majority of the partners, but to protect minority interests." How to protect, should be applied the principle of equity.

(4) both withdrawal or dissolution of the partnership, the partners shall enjoy rights must also bear not only. Foreign to assume the debts of the partnership, to be fair to enjoy the rights obligations. Never put your risk is added to the other partners body. As in the case of some, some partners in the partnership dissolved, the external debt onto others and let the other partners to return their cash directly. He is principal and nothing much to request and let the other partners are can only get some irrecoverable debt. The principal take not, must undertake the partner's interest, it is too unfair.

(5 ) of withdrawing the partnership debt. In the process of partnership business, some partners may midway withdrawal. Then he to the partnership liabilities, in two people partnership one withdrawal should be made each other's consent, the partnership is dissolved withdrawal, he should bear the responsibility for the withdrawal of debt. Leave the partner should be re registration, to the individual industrial and commercial households. In many people in a partnership withdrawal should marry the majority partner agree. At the time the original $ group and the withdrawing partner partnership debt agreement shall be handled according to the partnership, but cannot resist the external creditors. If the withdrawal without partnership agreement, who retires, still should assume responsibility for external debt. No matter what the situation cases, invalid partner mutual collusion debt evasion behavior.

(6 ) due to part of the partners of partnership property occupancy disputes. In the partnership, a partner in the partnership due to some position (if you choose him responsible for duties (as), responsible for the sales and receivables) and right is different, can can appear individual partners of partnership property occupation phenomenon, such as a crime, with the relevant departments according to the crime of Embezzlement processing link. If no crime is constituted, the other partners shall prosecute court shall accept the application and shall be dealt with according to law. For should return should be ordered the return of real physical presence, return, return money real does not exist.

(7) treatment on external debt to escape the partner. Sometimes partners in arrears of large external debt situation they agreed dividing property, but may be due to the uneven distribution of cash or not, but to the court. In such cases, the court on the claim should be rejected the prosecution, in which has negative equity cases should be ordered its liquidation.