The profit distribution and loss sharing of the partnership enterprise shall be handled in accordance with the partnership agreement; If the partnership agreement is not stipulated or clearly stipulated, it shall be decided by the partners through consultation; If negotiation fails, the partners shall allocate and share the capital contribution in proportion to the paid-in capital; If the proportion of capital contribution cannot be determined, it shall be equally distributed and shared by the partners.

Zhang Zhongshan and Yan Guoping's partnership dispute appeal.

The Supreme People's Court, People's Republic of China (PRC)

Civil judgment?

(2000) Zhong Min Zi No.8

Appellant: Zhang Zhongshan.

Appellant (defendant in the first instance): Yan Guoping.

In the case of the dispute between Zhang Zhongshan and Yan Guoping on partnership management, both parties refused to accept the civil judgment of Hebei Higher People's Court (1998)No. 17 and appealed to our court. Our hospital formed a collegiate bench to hear the case in public according to law, and the trial has now ended.

It was found through trial that Longyao Electric Valve Factory was originally a small casting enterprise invested by Zhang Zhongshan, and it belonged to Nanbaishe Village where it was located. 1in April, 1994, Zhang Zhongshan and Yan Guoping verbally agreed to run the factory in partnership. The two sides agreed that during the partnership period, the two sides will share the profits and bear the risks at a ratio of 5: 5. At the same time, it is agreed that Zhang Zhongshan is responsible for the production and daily management of the enterprise, and Yan Guoping is responsible for the sales of the enterprise. During the same operation period, Yan Guoan, the younger brother hired by both parties, served as an accountant, and Wang, his wife, served as a cashier, and * * * was also responsible for the finance of the partnership. Since the establishment of the partnership, apart from receiving monthly wages, the two parties have not drawn profits from the enterprise, but only split the profits on the books at the end of each year according to the ratio of 5: 5, and then transfer them to the capital of the next year for investment in the enterprise to expand reproduction. 1March 1998, Zhang Zhongshan retired from the management of the enterprise. Since then, Yan Guoping has been in charge of the production and operation of the partnership. Later, due to disputes between the two parties, Zhang Zhongshan sued the court of first instance in September of the same year, requesting to dissolve the partnership between the two parties according to law, divide the partnership property according to law, and award him more than 5 million yuan of assets belonging to Zhang Zhongshan. On June+10 of the same year, Zhang Zhongshan changed his claim, claiming that the business statement issued by the accountant was wrong. Upon investigation of the relevant documentary evidence of the original contributions made by both parties, Zhang Zhongshan's total contribution is 283,809.85 yuan, and Yan Guoping's total contribution is 36,300 yuan. It is requested to divide the partnership property according to the proportion of the contributions made by both parties, and award the assets belonging to Zhang Zhongshan to him more than 7 million yuan.

It was also found out that:1August, 1998, the accountant Yan Guoan was not in the company for objective reasons, and the company's current accounts were left in the cashier's hand this month, which has been in the hand since the prosecution. The court of first instance decided to organize a settlement between the two parties to clarify the matter, but Zhang Zhongshan did not agree to the settlement. According to the partnership 1997 report provided by Zhang Zhongshan, by the end of 1997, the paid-in capital of the enterprise was 4,304,602.95 yuan, the profit was 3,636,758.55 yuan, and the welfare expenses payable were 59,064.65 yuan, totaling 8,000,426./. According to the balance sheet of July 3 1 65438,0998 provided by Yan Guoping, as of July 3 1, 1998, the paid-in capital of the enterprise was 78858 1.48 yuan, 1998 1. During the trial of the first instance, both parties agreed to calculate the total assets of the partnership by this method, and calculate the profits from August to June to July of 1 998. Therefore, by the end of 1998, the total assets of the partnership were 0,232,748.19+(2170389.96 ÷ 7) × 5 =11783,026.69 yuan. In view of the fact that both parties agreed to dissolve the partnership in the lawsuit, but both demanded to continue to operate the factory, the court of first instance adopted the bidding method to solve this problem after repeated unsuccessful mediation, and the result was unsuccessful.

During the second trial in our hospital, Zhang Zhongshan submitted the accounts and bills of the partnership of 1998 in August, but Yan Guoping thought that there were a lot of white bars in the bill submitted by Zhang Zhongshan, indicating that it would not be confronted and recognized, and said that the financial accounts of the partnership of 1998 after September could only be carried out after Zhang Zhongshan returned the 2.3 million yuan withdrawn from the enterprise in that month. Zhang Zhongshan also disagreed with Yan Guoping.

The court of first instance held that, based on * * *, both parties indicated that * * * jointly invested and operated Longyao Electric Valve Factory, and its behavior did not violate the law, so the property rights enjoyed by both partners according to law should be protected by law. Although there is no written agreement on the way, amount and proportion of the original investment, from the original investment account book of the enterprise, both parties have fulfilled their respective investment obligations. Before the lawsuit, Zhang Zhongshan repeatedly claimed that he was one-half of the shareholders of the enterprise, and the profits of the enterprise were distributed by the two parties according to the agreed ratio of 5: 5 for many years, so the fact that both parties enjoyed the property rights of the enterprise according to the ratio of 5: 5 was enough to confirm.

Zhang Zhongshan claims that due to Yan Guoping's fraud, the two parties' capital contributions are unequal, and he wants to share the property rights of the enterprise in proportion to his capital contribution. Because he can neither prove the occurrence of the alleged facts nor prove the causal relationship between the capital contribution ratio and the ownership ratio of the enterprise, it has already exceeded the legal limitation of action, so Zhang Zhongshan's claim cannot be established according to law and should be rejected. At present, the two sides have disputes due to many contradictions, unanimously demanding the dissolution of the partnership, and both said that they would continue to operate the factory. In order to be fair, the court adopted the way of bidding by both parties to solve the problem properly. However, because Zhang Zhongshan did not agree to divide the enterprise property rights according to the ratio of 5: 5, the bidding conditions were unequal and failed. Considering the important influence of both parties' actual operation ability and product sales on the survival and development of the enterprise, it is decided to order Yan Guoping to continue to operate in the factory and Yan Guoping to pay half of the assets of Zhang Zhongshan enterprise in installments within a reasonable period of time on the premise of fully protecting the legitimate rights and interests of both parties, which is conducive to the sustainable operation and development of the enterprise. Judging from this: 1. The partnership between Zhang Zhongshan and Yan Guoping was dissolved, and Longyao Electric Valve Factory was owned and operated by Yan Guoping; 2. Zhang Zhongshan's property share in the partnership enterprise was paid by Yan Guoping to Zhang Zhongshan at 589 15 13.345 yuan according to half of the total assets of the enterprise at the end of 0998; After 1999, 1 month to the effective date of the judgment, pay half of the monthly average profit 1998. The performance period of Yan Guoping in the preceding paragraph of this article is: 3.5 million yuan shall be paid to Zhang Zhongshan within three months after this judgment comes into effect, and the balance shall be paid within two years; 3. The account of Longyao electric valve factory in Zhang Zhongshan 1998 in August will be returned to Yan Guoping within 10 days after the judgment takes effect; 4. Reject Zhang Zhongshan's other claims.

After the judgment of the first instance, both parties refused to accept it and appealed. Zhong Zhang Hill appealed that the court of first instance did not audit the original capital of the partnership and the total assets of the existing enterprises, and the basic facts were not ascertained. As the investment in Yan Guoping is not in place, the total assets can only be divided according to the proportion of investment. No matter how much the two sides invest, it is obviously unfair to divide the profits equally according to the ratio of 5: 5. Therefore, it is requested to cancel the judgment of first instance and dissolve the partnership between the two parties. Longyao Electric Valve Factory will continue to be operated by Zhang Zhongshan. Re-audit and evaluate the original capital and total existing assets of the partnership, and divide them according to the actual contribution ratio of the partners. Yan Guoping appealed that the first-instance judgment did not consider deducting the tax payable and employee welfare expenses when identifying the partnership assets before July 3, 19981,and the above amount should be deducted from the total assets. In the case that the partners still don't know the profit and loss of the enterprise, the judgment of the first instance categorically asserts that the partnership enterprise is bound to make profits, and presumes that the profit period is "from June 1999 1 day to the effective date of this judgment", and calculates the monthly average profit of 3 10055.7 yuan. This kind of determination obviously has no legal basis and should not be supported. Therefore, the court of second instance is requested to find out the facts and amend the total assets according to law.

We believe that although there is no written partnership agreement between Zhang Zhongshan and Yan Guoping, both sides recognize their partnership and have other partnership conditions, so their partnership should be recognized. The property accumulated by the partnership belongs to Zhang Zhongshan and Yan Guoping. Since both parties agreed to divide profits and bear risks in a ratio of 5: 5 when they are in partnership, in actual performance, both parties divide profits and capital in a ratio of 5: 5, and make annual financial statements accordingly. Zhang Zhongshan did not raise any objection to this. At present, Zhang Zhongshan advocates paying dividends according to the proportion of capital contribution, which lacks basis and our hospital does not support it. During the trial of first instance, both parties agreed to calculate the total assets of the partnership before 10232748. 19 yuan listed in the financial statements during the partnership period. Although Zhang Zhongshan showed remorse during the second trial, he failed to provide evidence to the contrary, so our court refused to support him. On the issue that the court of first instance calculated the profit from August to June of 65438+February according to the average profit from June 1 to July 1998, because both parties agreed to calculate in the trial of first instance, Zhang Zhongshan did not provide the account for August 1998 and Yan Guoping did not provide the account after September 1998, the court of first instance accordingly. With regard to Yan Guoping's objection to the profit after 1999 1 calculated by the court of first instance, Yan Guoping claimed that it had not kept accounts and provided no evidence to the contrary, which was not supported by our court. As for Yan Guoping's claim that the corresponding taxes should be deducted, this case belongs to the property that the partnership has not actually spent, and only involves the division of property after the dissolution of the partnership, and the tax-related taxes should be paid by both parties respectively according to the relevant provisions of the tax law, so it will not be dealt with here. The first instance ruled that Zhang Zhongshan returned the account of1August 1998 to Yan Guoping, which was beyond the scope of the litigant's claim, and the account amount was unclear, so it should be corrected. According to items (1) and (3) of the first paragraph of Article 153 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

First, maintain the first, second and fourth items of the civil judgment of Hebei Higher People's Court (1998) Ji Minzi Chu Di 17.

Two, cancel the Hebei Higher People's Court (1998) Ji Min Chu Zi No.3 civil judgment. 17.

The acceptance fee for the first-instance and second-instance cases is 90,020 yuan, and 45,065,438 yuan +00 yuan shall be borne by Zhang Zhongshan and Yan Guoping respectively.

This is the final judgment.