南通双盈贸易有限公司诉镇江市丹徒区联达机械厂、魏恒聂等六人买卖合同纠纷案
[裁判摘要]
一、在当事人约定合伙经营企业仍使用合资前个人独资企业营业执照，且实际以合伙方式经营企业的情况下，应据实认定企业的性质。各合伙人共同决定企业的生产经营活动，也应共同对企业生产经营过程中对外所负的债务负责。合伙人故意不将企业的个人独资企业性质据实变更为合伙企业的行为，不应成为各合伙人不承担法律责任的理由。
二、合伙企业债务的承担分为两个层次：第一顺序的债务承担人是合伙企业，第二顺序的债务承担人是全体合伙人。合伙企业法第三十九条所谓的“连带责任”，是指合伙人在第二顺序的责任承担中相互之间所负的连带责任，而非合伙人与合伙企业之间的连带责任。
原告：南通双盈贸易有限公司，住所地：江苏省南通市瑞丰花园23幢。
法定代表人：石建军，该公司董事长。
被告：镇江市丹徒区联达机械厂，住所地：江苏省镇江市丹徒区高资镇。
负责人：魏恒聂，该厂投资人。
被告：魏恒聂，男，汉族，39岁，住江苏省镇江市丹徒区高资镇。
被告：蒋振伟，男，汉族，42岁，住江苏省扬州市经济技术开发区施桥镇。
被告：卞跃，男，汉族，50岁，住江苏省扬州市邗江北路。
被告：祝永兵，男，汉族，40岁，住江苏省扬州市经济技术开发区施桥镇。
被告：尹宏祥，男，汉族，35岁，住江苏省扬州市经济技术开发区施桥镇。
被告：洪彬，男，汉族，38岁，住江苏省扬州市邗江区汊河街道。
南通双盈贸易有限公司(以下简称双盈公司)因与镇江市丹徒区联达机械厂(以下简称联达厂)、魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬发生买卖合同纠纷，向江苏省南通市中级人民法院提起诉讼。
原告双盈公司诉称：被告魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬于2005年12月开始合伙经营联达厂，合伙期限为10年。2006年10月3日，被告联达厂与双盈公司签订工矿产品购销合同一份，约定联达厂向双盈公司购买焦炭2000吨，单价为1200元／吨，货到需方场地后一周内结清货款。合同签订后，双盈公司先后供给联达厂焦炭1636．625吨，总货款为1 821 038．65元，但联达厂仅给付部分货款，仍拖欠货款 1 213 785．95元。请求判令：联达厂、魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬共同给付货款1 213 785．95元，并承担逾期付款利息(自2006年12月15日起至判决确定的给付之日止按银行同期贷款利率计算)。
被告卞跃辩称：本案中的焦炭买卖业务发生于原告双盈公司与被告联达厂之间，如联达厂的资产不足以清偿债务，该厂投资人被告魏恒聂应该以个人财产予以清偿。虽然被告魏恒聂、蒋振伟、卞跃及祝永兵于2005年12月18日签订了合伙合同，但是该合伙合同并未实际履行，联达厂亦仍为个人独资企业。卞跃不是本案的适格主体，双盈公司要求卞跃等个人支付联达厂的欠款没有事实和法律依据，故请求驳回双盈公司的诉讼请求。
被告联达厂、魏恒聂、蒋振伟、祝永兵、尹宏祥、洪彬在一审中未应诉答辩。
江苏省南通市中级人民法院一审查明：
原告双盈公司与被告联达厂于2006年10月3日签订工矿产品购销合同一份，约定由双盈公司向联达厂提供焦炭2000吨，单价为1200元／吨，货到需方场地后一周内结清货款。合同签订后，双盈公司先后向联达厂供货1636．625吨，总货款为 1 821 038．65元。联达厂支付了部分货款，尚欠1 213 785．95元。2007年1月7日，联达厂向双盈公司出具欠条一份，载明“发票已全部收到，共计欠款1 213 785．95元”。
此前，被告魏恒聂于2005年9月8日登记注册成立个人独资企业即被告联达厂，并领有营业执照。后来被告魏恒聂、蒋振伟、卞跃及祝永兵于2005年12月18日签订合伙合同一份，约定：合伙人魏恒聂原独资经营的联达厂因扩建、改建需追加投资，现由魏恒聂、蒋振伟、卞跃、祝永兵四人共同出资，合伙经营，变更为合伙经营企业；合伙人魏恒聂以位于镇江市丹徒区高资镇巢山村的部分厂房和土地作价15万元出资，土地上现有部分房屋将在合伙后拆除，原有企业的机器设备也将报废；蒋振伟、卞跃、祝永兵三人根据实际建房及购买设备需要出资；合伙后的企业名称仍为联达厂，仍使用原魏恒聂领取的联达厂营业执照，原个人独资企业营业执照自合伙合同签订之日起归合伙企业所有，原投资人魏恒聂不得再单独使用该营业执照；蒋振伟、卞跃、祝永兵的出资，用于新建厂房和购买机械设备，全部投资结束后，根据实际使用资金大家共同认可；魏恒聂、蒋振伟、卞跃、祝永兵各占25％的比例分配；合伙债务先由合伙财产偿还，合伙财产不足清偿时，由各合伙人共同承担；合伙企业由魏恒聂负责生产及工人的管理，蒋振伟负责对外开展业务，对合伙企业进行日常管理和产品销售，卞跃负责财务，祝永兵负责采购。合伙合同签订后，联达厂购买了冶炼炉等设备进行技术改造，并向原告双盈公司购买焦炭用于生产。
2006年12月23日，被告魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬又签订协议书一份，载明魏恒聂等六人按照约定出资成立联达厂，因正常生产进入困境，现就怎样解决该厂困境一事，协商达成一致意见：在10日内理清该厂自成立至该协议生效期间的所有账目；魏恒聂等六人一致同意全权委托魏恒聂将该厂对外承包，承包费用于偿还对外的债务和六人各自的投资；承包金额暂定最低每年50万元；该厂承包前对外的债权债务由魏恒聂负责处理，与其余五人无关。此后，联达厂将厂房、设备等租赁给他人使用。
本案一审的争议焦点是：一、被告联达厂是否欠原告双盈公司货款；二、如联达厂欠货款，被告卞跃等个人应否向双盈公司承担责任。
江苏省南通市中级人民法院一审认为：
一、原告双盈公司已提供了购销合同、入库单、欠条等证据证明被告联达厂欠双盈公司货款未付，被告卞跃对该证据的真实性虽提出异议，但未能提供抗辩证据。相反，卞跃提供的被告魏恒聂的调查笔录能证明联达厂确欠双盈公司货款。其他被告均因不到庭而放弃了抗辩的权利。因此，对于双盈公司关于联达厂欠其货款 1 213 785．95元的主张，应予采信。
二、原告双盈公司主张被告联达厂由被告魏恒聂、蒋振伟等人合伙经营，并提供了合伙合同、协议书等证据证明。双盈公司还认为，其提交的入库单中有被告祝永兵的签名，祝永兵正是按合伙合同中关于其负责采购的分工约定而在入库单中签名，由此说明合伙合同已实际履行。被告卞跃主张其虽签有合伙合同、协议书，但实际并未履行。原审法院认为，双盈公司提供的合伙合同等证据已能证明魏恒聂等人之间系合伙关系，卞跃提供的本案另三位被告的书面陈述，因其不到庭，对其真实性难以认定。即使卞跃及其他三位被告所作的陈述是真实的，其也只是提出投资未到位，而投资未到位只能说明未诚信履约，并不能产生如同解除合同或退伙、散伙等法律行为所产生的法律效果。相反，在后来魏恒聂、蒋振伟等的六人协议书中，却进一步明确了联达厂系六人出资成立的事实，并且六人还同意以该厂对外承包的费用来偿还对外债务及六人各自的投资。因此，对于双盈公司提出的联达厂系魏恒聂等人合伙经营的主张，应予采信。
被告联达厂按工商登记仍为个人独资企业，但事实上已转为合伙企业，只是尚未也不想在工商部门进行变更登记，此有合伙人在合伙合同中延用原营业执照的约定为证。从后来被告魏恒聂、蒋振伟等的六人协议书来看，四人签订合伙合同之后，被告尹宏祥、洪彬二人又加入合伙企业成为合伙人。
综上所述，被告联达厂尚欠原告双盈公司货款1 213 785．95元，此款应由联达厂偿还。联达厂通过出具欠条明确了义务，其未付款即应付款并赔偿双盈公司货款的利息损失。联达
厂系魏恒聂等六人合伙经营的企业，根据法律规定，合伙人对合伙的债务承担连带责任，魏恒聂等六合伙人应对联达厂的债务承担连带清偿责任。联达厂、魏恒聂、蒋振伟、祝永兵、尹宏祥、洪彬经传票传唤无正当理由未到庭参加诉讼，视为放弃诉讼权利，法院依法缺席审判。
据此，依照《中华人民共和国民法通则》第三十五条、第八十四条、第八十八条第一款，最高人民法院《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》第四十七条，《中华人民共和国民事诉讼法》第一百三十条之规定，江苏省南通市中级人民法院于2008年7月29日作出判决：
一、被告联达厂偿还原告双盈公司货款1 213 785．95元，并给付双盈公司该款自2007年1月8日起至判决确定的给付之日止按中国人民银行同期贷款利率计算的利息；
二、被告魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬对被告联达厂的上述债务承担连带清偿责任。上述应履行之付款义务于判决发生法律效力之日起10日内履行完毕。如果未按判决指定的期间履行给付金钱义务，应当依照《中华人民共和国民事诉讼法》第二百二十九条的规定，加倍支付迟延履行期间的债务利息。
到此结束
卞跃不服一审判决，向江苏省高级人民法院提起上诉称：一、原审判决依据合伙合同及协议书认定存在合伙关系不当。1．卞跃提供的对原审被告魏恒聂、蒋振伟、尹宏祥的调查笔录可以证明：合伙合同并未实际履行，蒋振伟、卞跃等人均未出资，亦未共同经营管理或执行合伙事务；魏恒聂向尹宏祥和洪彬各借25万元用于原审被告联达厂的技术改造；联达厂无法偿还债务，尹宏祥和洪彬多次催款，魏恒聂则采用签订协议书的方式稳住借款人；魏恒聂要求蒋振伟、卞跃、祝永兵也在协议书上签字的理由是证明联达厂对外承包所得款项应用来偿还魏恒聂欠尹宏祥和洪彬的50万元借款。原审判决对卞跃提供的上述证据以真实性难以认定为由未予采纳，且在魏恒聂、卞跃等人均明确表示没有合伙的情况下确认存在合伙关系，该认定违背了当事人之间的真实意思表示。2．原审法院并未查清合伙人的出资金额与出资比例，这印证了合伙合同仅为意向性合同，并未实际履行。3．有原审被告祝永兵签名的入库单并未经其本人确认，无法确认该签名的真实性，不能作为证据使用，即使该签名是真实的，也不能得出合伙关系成立的结论。二、原审法院在相关当事人没有收到开庭传票的情况下就开庭审理本案，程序违法。综上所述，请求依法改判或将本案发回重审。
被上诉人双盈公司答辩称：原审法院审理程序合法，认定事实清楚，适用法律正确，上诉人卞跃的上诉理由不能成立，请求二审法院驳回上诉，维持原判。
江苏省高级人民法院经二审，确认了一审查明的事实。
本案二审的争议焦点是：一、原审被告联达厂是否为被上诉人卞跃和原审被告魏恒聂、蒋振伟、祝永兵、尹宏祥、洪彬六人合伙经营的企业；二、卞跃等人的出资数额、出资比例不明确以及联达厂名义上的个人独资企业性质是否影响本案中各合伙人的民事责任；三、原审法院的审理程序是否违法。
江苏省高级人民法院二审认为：
一、原审被告联达厂是上诉人卞跃和原审被告魏恒聂、蒋振伟、祝永兵、尹宏祥、洪彬六人合伙经营的企业。
上诉人卞跃等人有合伙经营联达厂的确定意思表示。原审被告魏恒聂、蒋振伟、祝永兵和卞跃四人于2005年12月18日签订的合伙合同，明确约定由该四人共同出资、合伙经营，将原由魏恒聂独资经营的原审被告联达厂变更为合伙企业。该合同还对合伙经营范围、合伙期限、出资方式、利润分配、合伙事务的执行、入伙与退伙等合伙企业设立中的主要内容作
了明确约定。该合伙合同表明魏恒聂、蒋振伟、卞跃、祝永兵合伙经营联达厂的意思表示是非常明确的。
上诉人卞跃等人已实际出资并共同参与了原审被告联达厂的经营决策活动。2006年12月23日，原审被告魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬六人签订协议书一份，载明魏恒聂等六人按照约定出资成立联达厂，为解决联达厂的生产经营困境，六人一致同意将联达厂对外发包，承包金额暂定为最低每年50万元，并用收取的承包费偿还联达厂的债务与六人的投资。根据该协议的内容可以认定，魏恒聂、蒋振伟、卞跃、祝永兵在签订合伙合同后已“按照约定”实际出资，且合伙人已由合伙合同签订时的四人变更为签订协议书的六人。而且，企业是否继续生产经营、是否选择“对外承包”这一模式进行经营、收取多少承包费用等，均关乎企业的命运，属于企业的重大经营决策事项。魏恒聂等六人以签订协议书的形式共同就上述重大经营事项作出决策，行使了合伙人才应享有的权利，从而进一步证明该六人已实际共同参与了联达厂的经营活动。卞跃等人已实际出资并共同经营的事实说明合伙合同在实际履行。卞跃在无法推翻共同出资、共同经营这一事实的情况下，以原审法院未查清出资数额及比例为由认为合伙合同仅为意向性合同、并未实际履行的观点不能成立，不予采纳。
原审被告魏恒聂与其他五人之间系共同投资而非借款关系。上诉人卞跃认为其与原审被告蒋振伟、祝永兵在2006年12月23日的协议书上签字仅是对魏恒聂与原审被告尹宏祥、洪彬之间的借款关系进行证明，并在一审中提交了其委托代理人向魏恒聂、蒋振伟、尹宏祥所作的调查笔录，用以证明上述观点。法院认为，由于魏恒聂、蒋振伟、尹宏祥是本案的当事人，该调查笔录的内容经当事人本人确认后，性质上属于案件当事人的陈述，人民法院应当结合案件的其他证据对其进行审查才能确认应否作为认定事实的依据。但魏恒聂等三人经原审法院合法传唤，未到庭参加诉讼，未能对调查笔录进行确认，且调查笔录的内容与本案中其他证据存在矛盾。因此，原审法院未采信该三份调查笔录并无不当。此外，2006年12月23日的协议书并未提及卞跃所称的借款事实，亦不能从中得出卞跃等三人是作为借款关系证明人参与协议签订的结论。相反，该协议书关于魏恒聂等六人一致决定在10日内理清联达厂自成立至该协议生效期间的所有账目、将联达厂对外发包并将承包费用于偿还联达厂的债务和六人各自的投资的约定，可以证明卞跃等六人与联达厂之间系投资关系、魏恒聂与其他五人之间系共同投资而非借款关系。相反，如果认可其“实为借款”的辩称，不仅会导致当事人对签约的不负责任和契约关系的混乱、失信，也是对外部债权人的极大不公。因此，对于卞跃的上述观点，不予采纳。
二、上诉人卞跃等人的出资数额、出资比例不明确以及原审被告联达厂名义上的个人独资企业性质均不影响本案中各合伙人的民事责任。
出资数额、出资比例是合伙协议的重要内容，但仅涉及合伙企业各合伙人的内部关系，依法不应影响合伙企业及合伙人对外的责任承担。因此，尽管根据现有证据合伙人的出资数额及比例尚不清楚，但这不影响上诉人卞跃等合伙人在本案中的责任承担。
由于合伙合同明确约定合伙后的企业仍沿用原企业名称与营业执照、原个人独资企业营业执照自合伙合同签订之日起归合伙企业所有、原投资人魏恒聂不得再单独使用该营业执照，故尽管原审被告联达厂实质上已变更为合伙性质、生产经营活动由各合伙人共同决策，但联达厂在工商行政管理部门仍登记为个人独资企业。换言之，联达厂未据实变更企业性质系各合伙人作出的不合法的安排。各合伙人既然共同决定联达厂的生产经营活动，就应对联达厂生产经营过程中对外所负的债务负责。上诉人卞跃等合伙人故意不将联达厂的个人独资企业性质据实变更为合伙企业的行为，不仅应当受到相关行政法规的规制，亦不应当成为各合伙人不承担民事法律责任的理由，否则交易安全得不到保护，相关法律规制合伙企业及合伙人的目的将会落空。
三、原审法院的审理程序合法。
原审法院在采用法院专递无法向原审被告蒋振伟等当事人送达开庭传票等相关法律文书的情况下，采用公告的方式进行送达，符合法律规定。蒋振伟等人经合法传唤，无正当理由未到庭，原审法院依法可以缺席审理。上诉人卞跃关于原审法院在相关当事人没有收到开庭传票的情况下即开庭审理的主张与事实不符，其关于原审判决程序违法的上诉理由无事实依据，不予采纳。
综上所述，原审被告联达厂虽在工商行政管理部门登记为个人独资企业，但实质系上诉人卞跃、原审被告魏恒聂、蒋振伟、祝永兵、尹宏祥、洪彬合伙经营的企业。联达厂欠被上诉人双盈公司的1213785.95元货款发生于合伙期间，属于合伙企业的债务。对合伙债务如何承担，《中华人民共和国民法通则》、最高人民法院《关于贯彻执行<中华人民共和国民法通则>若干问题的意见(试行)》以及《中华人民共和国合伙企业法》(1997年8月1日起施行)(以下简称合伙企业法)均有相关规定。合伙企业法第三十九条规定：“合伙企业对其债务，应先以其全部财产进行清偿。合伙企业财产不足清偿到期债务的，各合伙人应当承担无限连带清偿责任。”第四十条第一款规定：“以合伙企业财产清偿合伙企业债务时，其不足的部分，由各合伙人按照本法第三十二条第一款规定的比例，用其在合伙企业出资以外的财产承担清偿责任。”据此，合伙企业债务的承担分为两个层次：第一顺序的债务承担人是合伙企业，第二顺序的债务承担人是全体合伙人。由于债权人的交易对象是合伙企业而非合伙人，合伙企业作为与债权人有直接法律关系的主体，应先以其全部财产进行清偿。因合伙企业不具备法人资格，普通合伙人不享受有限责任的保护，合伙企业的财产不足清偿债务的，全体普通合伙人应对合伙企业未能清偿的债务部分承担无限连带清偿责任。因而，合伙企业法第三十九条所谓的“连带”责任，是指合伙人在第二顺序的责任承担中相互之间所负的连带责任，而非合伙人与合伙企业之间的连带责任。本案中，对于联达厂欠双盈公司的货款，联达厂应先以其全部财产进行清偿。联达厂的财产不足清偿该债务的，卞跃等合伙人对不能清偿的部分承担无限连带清偿责任。原审判决对联达厂与卞跃等合伙人的责任顺序未作区分，应予纠正。综上，卞跃的上诉请求无事实与法律依据，不予支持。原审判决认定事实清楚，审理程序合法，但适用法律有误。
据此，江苏省高级人民法院依照《中华人民共和国合同法》第一百五十九条、第一百六十一条，合伙企业法第三十九条、第四十条第一款，《中华人民共和国民事诉讼法》第一百三十条、第一百五十三条第一款第(二)项之规定，于2009年11月17日判决：
一、维持江苏省南通市中级人民法院(2007)通中民二初字第0062号民事判决第一项及案件受理费部分；
二、撤销江苏省南通市中级人民法院(2007)通中民二初字第0062号民事判决第二项；
三、魏恒聂、蒋振伟、卞跃、祝永兵、尹宏祥、洪彬对联达厂不能清偿的债务部分承担无限连带清偿责任。
本判决为终审判决。
fnl_376130
只看带绿色的
当做刚起诉，什么都没发生
Nantong Shuangying Trading Co. Ltd. v. Lianda Machinery Plant in Dantu District of Zhenjiang City, Wei Hengnie and Other Five Persons
(A case concerning sales contract dispute)
[Summary]
1. When the parties involved agree that a partnership enterprise will continue to utilize its original business license obtained as a sole proprietorship but it is actually operated in the form of partnership, the nature of this enterprise shall be determined based on its actual nature. Where partners jointly make decisions regarding production and operating activities of the enterprise, they shall also jointly assume liabilities for the debts of the enterprise incurred during its production and business operation. The partners may not avoid assuming liabilities by intentionally not changing the nature of the enterprise from a sole proprietorship into a partnership.
2. Debts of a partnership enterprise shall be borne at two levels: the partnership enterprise assumes liabilities for its debts in the first stage, and all partners assume liabilities for its debts in the second stage. The “joint liabilities” mentioned in Article 39 of the Partnership Enterprise Law of the People’s Republic of China (hereinafter referred to as the “Partnership Enterprise Law”) refers to the joint liabilities assumed by partners in the second stage rather than those assumed by the partnership enterprise and the partners thereof.
Plaintiff: Nantong Shuangying Trading Co. Ltd., domiciled at No. 23 Building of Ruifeng Garden, Nantong City, Jiangsu Province.
Legal representative: Shi Jianjun, Chairman of Board of Directors of this Company.
Defendant: Lianda Machinery Plant in Dantu District of Zhenjiang City, domiciled at Gaozi Town, Dantu District, Zhenjiang City, Jiangsu Province.
Person-in-charge: Wei Hengnie, investor of this Plant.
Defendant: Wei Hengnie, male, age 39, of the Han ethnic group, domiciled at Gaozi Town, Dantu District, Zhenjiang City, Jiangsu Province.
Defendant: Jiang Zhenwei, male, age 42, of the Han ethnic group, domiciled at Shiqiao Town, Economic and Technological Development Zone, Yangzhou City, Jiangsu Province.
Defendant: Bian Yue, male, age 50, of the Han ethnic group, domiciled at North Hanjiang Road, Yangzhou City, Jiangsu Province.
Defendant: Zhu Yongbing, male, age 40, of the Han ethnic group, domiciled at Shiqiao Town, Economic and Technological Development Zone, Yangzhou City, Jiangsu Province.
Defendant: Yin Hongxiang, male, age 35, of the Han ethnic group, domiciled at Shiqiao Town, Economic and Technological Development Zone, Yangzhou City, Jiangsu Province.
Defendant: Hong Bin, male, age 38, of the Han ethnic group, domiciled at Chahe Sub-district, Hanjiang District, Yangzhou City, Jiangsu Province.
Nantong Shuangying Trading Co. Ltd. (hereinafter referred to as “Shuangying Company”) filed a lawsuit with the Intermediate People’s Court of Nantong City, Jiangsu Province against Lianda Machinery Plant in Dantu District of Zhenjiang City (hereinafter referred to as Lianda Plant), Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin regarding disputes over a sales contract.
It is alleged by the plaintiff, Shuangying Company, in its complaint that: in December 2005, the defendants Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin created the partnership business Lianda Plant with a ten year term. On October 3, 2006, Lianda Plant and Shuangying Company concluded a purchase-and-sales contract for industrial and mining products, stipulating that Lianda Plant shall purchase 2,000 tons of coke from Shuangying Company at a unit price of 1,200 yuan per ton; and the payment shall be settled within one week of the purchased products arriving at the site of the purchaser. After concluding the contract, Shuangying Company had supplied 1,636.625 tons of coke to Lianda Plant, amounting to a total of 1,821,038.65 yuan. However, Lianda Plant made only partial payment, leaving unpaid a sum of 1,213,785.95 yuan. It is the prayer of Shuangying Company that the court may order Lianda Plant, Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin to jointly pay 1,213,785.95 yuan plus the interest accrued on the overdue payment, which should be calculated at the interest rate of bank loans over the same period from December 15, 2006 to the date of payment as rendered in the judgment.
It is alleged by the defendant, Bian Yue, in his answer that: the coke transaction in this case occurred between Shuangying Company and Lianda Plant. As such, if Lianda Plant’s property was insufficient to repay its debts, Wei Hengnie, the investor in the plant should repay such debts from his personal property. On December 18, 2005, Wei Hengnie, Jiang Zhenwei, Bian Y ue, and Zhu Yongbing concluded a partnership contract, but it is alleged that the partnership contract was not actually performed, and thus Lianda Plant remained a sole proprietorship. As such, it is alleged that Bian Yue was not a proper subject to bear liability, and Shuangying Company’s demand that Bian Yue and other individuals should pay the default of Lianda Plant lacked both factual and legal basis. It is the prayer of Bian Yue that the court may reject the request of Shuangying Company.
In the trial of first instance, Lianda Plant, Wei Hengnie, Jiang Zhenwei, Zhu Yongbing, Yin Hongxiang, and Hong Bin did not file an answer with the court.
In the trial of first instance, the Intermediate People’s Court of Nantong City, Jiangsu Province found that:
On October 3, 2006, Shuangying Company and Lianda Plant concluded a purchase-and-sales contract for industrial and mining products, according to which Shuangying Company supplied 2,000 tons of coke to Lianda Plant at a unit price of 1,200 yuan per ton, with payment to be settled within one week of delivery of the products to the purchaser. After concluding the contract, Shuangying Company supplied 1,636.625 tons of coke to Lianda Plant, with total payment amounting to 1,821,038.65 yuan. Lianda Plant made partial payment, leaving unpaid a sum of 1,213,785.95 yuan. On January 7, 2007, Lianda Plant issued an IOU to Shuangying Company, stating that “Lianda Plant has received all invoices and a total of 1,213,785.95 yuan is unpaid and owed to Shuangying Company.”
On September 8, 2005, Wei Hengnie registered and established Lianda Plant, a sole proprietorship, and obtained a business license. On December 18, 2005, Wei Hengnie, Jiang Zhenwei, Bian Yue, and Zhu Yongbing concluded a partnership contract, stipulating that Lianda Plant was previously solely owned and operated by Wei Hengnie, due to expansion and renovation of this plant, Wei Hengnie, Jiang Zhenwei, Bian Yue, and Zhu Yongbing would jointly invest in this plant and thereafter the plant would become a partnership enterprise jointly owned and operated by Wei Hengnie, Jiang Zhenwei, Bian Yue, and Zhu Yongbing. Wei Hengnie made an investment of 150,000 yuan, with partial facilities and lands located in Chaoshan Village, Gaozi Town, Dantu District, Zhenjiang City. After the partnership contract came into force, the existing facilities on the lands were to be removed and the original machinery and equipment discarded. Jiang Zhenwei, Bian Yue, and Zhu Yongbing would make investments according to the actual costs for new facility construction and equipment purchase. The partnership enterprise would retain the name Lianda Plant and continue to utilize the original business license. The original business license for Lianda Plant obtained by Wei Hengnie as a sole proprietorship became property of the partnership as of the date the partnership contract was concluded, and as such Wei Hengnie no longer had an exclusive right to use it. The investments by Jiang Zhenwei, Bian Yue, and Zhu Yongbing were used to build new facilities and to purchase machinery and equipment. After all the investments were made, the stake of each partner was calculated based on the funds actually used. Wei Hengnie, Jiang Zhenwei, Bian Yue, and Zhu Yongbing would each be allocated 25% of any profits. Partnership debts would first be repaid from the partnership property. When such property was insufficient, the partners of the enterprise were to be jointly liable. In the partnership enterprise, the responsibilities were as follows: Wei Hengnie was responsible for production and employee management, Jiang Zhenwei for external business, routine management, and product sales, Bian Yue for financial affairs, and Zhu Yongbing for purchasing. After concluding this partnership contract, Lianda Plant purchased smelting furnaces and other equipment necessary for technological improvement, as well as coke from Shuangying Company necessary for production.
On December 23, 2006, Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin concluded another agreement, according to which these six persons established Lianda Plant with agreed investments. In order to address issues related to production problems at the plant, the following agreement was reached after negotiation: all accounts for the plant from its
establishment up to the effective date of the agreement were to be clarified within ten days; Wei Hengnie and the five other persons agreed that Wei Hengnie would be fully authorized to contract out the plant to a 3rd party, and the income from contracting fee would be used to repay any debts owed as well as the funds invested by the six persons; the minimum allowable annual contracting fee was temporarily set at 500,000 yuan; the rights and obligations of the plant prior to being contracted out were to be handled by Wei Hengnie, without the involvement of the other five persons. Afterwards, the premises and facilities of Lianda Plant were leased to other persons.
The focuses of disputes in this case in the trial of first instance were: (1) whether Lianda Plant owed payment to Shuangying Company; and (2) if Lianda Plant owed payment, whether Bian Yue and other persons should be liable for compensating Shuangying Company.
In the trial of first instance, the Intermediate People’s Court of Nantong City, Jiangsu Province held that:
1. Shuangying Company has provided the purchase-and-sales contract, warehousing entries, IOU, and other evidence which prove that Lianda Plant owed payment to Shuangying Company. Though Bian Yue raised objection to the authenticity of such evidence, he failed to provide the evidence necessary for rebutting. On the contrary, the transcripts from the investigation of Wei Hengnie provided by Bian Yue could in fact prove that Lianda Plant indeed owed payment to Shuangying Company. The other defendants gave up their right to defense by not appearing in court. As such, the allegation of Shuangying Company that Lianda Plant owed it payment of 1,213,785.95 yuan is accepted.
2. Shuangying Company alleged that Lianda Plant was a partnership enterprise owned and operated by Wei Hengnie, Jiang Zhenwei, and other persons. It provided evidence such as the partnership contract and agreement to substantiate this allegation. Shuangying Company also alleged that the warehousing entries it submitted had the signature of Zhu Yongbing, who signed the warehousing entries in accordance with his responsibility for purchasing as stipulated in the partnership contract. As such, it is proven that the partnership contract was actually in force. Bian Yue alleged that although he had concluded the partnership contract and agreement, they were not actually in force. In the opinion of the court of first instance, the partnership contract and other evidence provided by Shuangying Company proved that Wei Hengnie and other persons were in fact partners. Bian Yue provided written statements from the other three defendants, but it was difficult to determine their authenticity as they did not appear in court. Assuming that the statements of Bian Yue and other three defendants were correct, they stated only that their investments were to be made. This proves only that they failed to perform the contract in good faith and could not yield legal effects such as the rescission of the contract, withdrawal from partnership, dissolution of partnership, or other judicial acts. On the contrary, in the agreement concluded by Wei Hengnie, Jiang Zhenwei, and other four persons, it was specified that Lianda Plant was established with investments from the aforementioned six persons, and that they consented to repay the debts of the plant as well as their investments with the income from the contracting fees. As such, the allegation of Shuangying Company that Lianda Plant was a partnership enterprise owned and operated by Wei Hengnie and other persons should be adopted.
In the industrial and commercial registration, Lianda Plant was listed as a sole proprietorship. In fact, it was transformed into a partnership enterprise. The partners had agreed in the partnership contract to continue using the original business license, which proved that the partners failed to, or were unwilling to, modify the registration with the industrial and commercial department. The partnership was originally created by the agreement between Wei Hengnie and Jiang Zhenwei, Bian Yue, and Zhu Yongbing. Two more persons, Yin Hongxiang and Hong Bin, were later added as partners. This addition is evidenced by the agreement concluded by Wei Hengnie, Jiang Zhenwei, and four other persons.
In conclusion, Lianda Plant still owed Shuangying Company 1,213,785.95 yuan, which should be paid by Lianda Plant. Lianda Plant acknowledged this obligation by issuing an IOU, but did not pay Shuangying Company the amount payable with the interest accrued. Lianda Plant was a partnership enterprise owned and operated by Wei Hengnie and other five persons. In accordance with legal regulations, the partners should assume joint liabilities for the debts of their partnership enterprise. As such, Wei Hengnie and the five other partners should assume joint liability for repaying the debts of Lianda Plant. Lianda Plant, Wei Hengnie, Jiang Zhenwei, Zhu Yongbing, Yin Hongxiang, and Hong Bin did not appear in court to participate in court proceedings upon summons, nor did they provide a valid reason for their absence. As such it was deemed that they waived their rights of litigation and the court entered a default judgment.
Accordingly, on July 29, 2008, in accordance with Articles 35, 84, and 88 (paragraph 1) of the General Principles of the Civil Law of the People’s Republic of China (hereinafter referred to as the “General Principles of the Civil Law”), Article 47 of the Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law (for Trial Implementation), and Article 130 of the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the “Civil Procedure Law”), the Intermediate People’s Court of Nantong City, Jiangsu Province entered a judgment that:
1. Lianda Plant shall make a payment of 1,213,785.95 yuan for goods received, and pay Shuangying Company interest as calculated at the interest rate of loans over the same period of the People’s Bank of China from January 8, 2007 to the date of payment as rendered in this judgment;
2. Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin shall assume joint liability for repaying the aforementioned debts of Lianda Plant. The aforementioned obligation for payment shall be performed within ten days of this judgment coming into force. If the defendants fail to fulfill their payment obligation within the time limit specified, they shall pay double the interest owed on the debt, due to the delayed performance.
到此结束
Bian Y ue filed an appeal against the judgment of first instance with the Higher People’s Court of Jiangsu Province based on two allegations. First, it is not proper for the judgment of first instance to determine that Lianda Plant was a partnership on the basis of the partnership contract and agreement, for the following reasons: (1) The investigation transcripts of Wei Hengnie, Jiang
Zhenwei, and Yin Hongxiang, as provided by Bian Yue, could prove that the partnership contract was not actually performed. Jiang Zhenwei, Bian Yue, and other persons did not provide funds or they themselves did not become involved in the joint business management or execution of partnership matters. Wei Hengnie borrowed 250,000 yuan from Yin Hongxiang and Hong Bin each to perform technological improvement in Lianda Plant. When Lianda Plant failed to repay the debts, and Yin Hongxiang and Hong Bin demanded the repayment multiple times, Wei Hengnie calmed the borrowers by signing an agreement with them. The purpose of Wei Hengnie, when he asked Jiang Zhenwei, Bian Y ue, and Zhu Yongbing to sign the agreement, is to prove that the proceeds from the contracting of Lianda Plant to a 3rd party would be used by Wei Hengnie to repay the 500,000 yuan loan from Yin Hongxiang and Hong Bin. The judgment of first instance did not adopt the aforesaid evidence provided by Bian Y ue on the ground that its authenticity was difficult to establish. It confirmed that there was a partnership among Wei Hengnie, Bian Yue, and other persons under circumstances where they had expressly stated that they were not linked by partnership. Such a finding violated the true will of the parties involved; (2) The court of first instance did not ascertain the amount and ratio of contributions of each partner, which corroborates that the partnership contract was merely a contract of intent without actually being performed; (3) The warehousing entry signed by Zhu Yongbing was not confirmed by him, and as such its authenticity cannot be confirmed and should not be used as evidence. Even if it was Zhu Yongbing’s signature, the court could not arrive at the conclusion that the partnership was established. The second allegation in the appeal is that the court of first instance held the trial under the circumstance where the parties involved had not received a summons and the procedures were therefore illegal. As such, Bian Yue requested the court to amend the judgment or remand the case for retrial.
It was alleged by Shuangying Company, the appellee, that the trial procedures of the court of first instance were legal, the facts found in the judgment of first instance were clear, and the law was correctly applied. The appeal grounds of Bian Y ue are unfounded. Shuangying Company requested the court of second instance to reject the appeal of Bian Yue and maintain the original judgment.
Upon trial of second instance, the Higher People’s Court of Jiangsu Province confirmed the facts found in the trial of first instance.
The focuses of disputes in the trial of second instance were: (1) whether Lianda Plant was a partnership enterprise owned and operated by the appellant Bian Yue, and the defendants in the trial of first instance Wei Hengnie, Jiang Zhenwei, Zhu Yongbing, Yin Hongxiang, and Hong Bin;
(2) whether the unspecified value and proportion of investment by Bian Yue and other persons, and the registered nature of Lianda Plant as a sole proprietorship affected the civil liabilities assumed by the partners in this case; and (3) whether the trial procedures of the court of first instance were illegal.
In the trial of second instance, the Higher People’s Court of Jiangsu Province held that:
1. Lianda Plant was a partnership enterprise owned and operated by the appellant Bian Yue, and
the defendants in the trial of first instance Wei Hengnie, Jiang Zhenwei, Zhu Yongbing, Yin Hongxiang, and Hong Bin.
Bian Y ue and other persons did intend to start the partnership business Lianda Plant. On December 18, 2005, Wei Hengnie, Jiang Zhenwei, Zhu Yongbing, and Bian Yue concluded a partnership contract, which specified that they jointly provided funds and formed a partnership business. In doing so, Lianda Plant, which was originally solely funded by Wei Hengnie, was transformed into a partnership enterprise. In addition, the contract specified the scope of the partnership business, partnership term, form of contribution, profit distribution, execution of partnership matters, joining and retiring from the partnership, and other elements typically associated with the establishment of a partnership enterprise. This demonstrates that Wei Hengnie, Jiang Zhenwei, Bian Yue, and Zhu Yongbing had the specific intention of forming the partnership business Lianda Plant.
Bian Yue and other persons did in fact provide funds and jointly participate in business decision-making for Lianda Plant. On December 23, 2006, Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin concluded an agreement which stated that Wei Hengnie and five other persons provided funds as specified in the agreement and established Lianda Plant. To address problems in production and operation, the six persons agreed to contract Lianda Plant to third parties, with the minimum annual contracting fee temporarily set at 500,000 yuan. The revenues from the contracting fees were used to repay the debts of Lianda Plant and the investments of the six persons. As determined according to the agreement, Wei Hengnie, Jiang Zhenwei, Bian Yue, and Zhu Yongbing did in fact provide funds “as agreed”after signing the partnership contract. While there were four partners when the partnership contract was concluded, this was increased to six once this agreement was concluded. In addition, whether an enterprise continued production and operation itself or whether it operated in the mode of “a contracted project”, as well as the amount of contracting fees being collected are critical to the destiny of an enterprise, and are critical business decision matters. Wei Hengnie and five other persons jointly made a decision on the aforementioned critical business decision matters by concluding an agreement and exercised their partners’ rights, which further proves that these six persons jointly participated in the business operation of Lianda Plant. The fact that Bian Yue and other persons did in fact provide funds and participate in joint business operations proves that the partnership contract was performed. Since Bian Y ue failed to disprove the existence of joint contribution and operation, his allegation that the partnership contract was merely an agreement of intent and was not actually performed on the grounds that the court of first instance did not determine the ratio of contribution is unfounded and should not be adopted.
Wei Hengnie and five other persons were linked by joint contributions while not linked by creditor-debtor relationship. Bian Yue held that he, along with Jiang Zhenwei and Zhu Yongbing signed the agreement on December 23, 2006 in order to indicate the creditor-debtor relationship between Yin Hongxiang, Hong Bin, and Wei Hengnie. In the trial of first instance, Bian Yue submitted the transcripts from the investigation of Wei Hengnie, Jiang Zhenwei, and Yin Hongxiang by his attorney to support his aforementioned allegations. In the opinion of this Court, as Wei Hengnie, Jiang Zhenwei, and Yin Hongxiang were parties involved in this case, upon
confirmation by these parties, the investigation transcripts are of the same nature as statements by the parties. As such, the people’s court should consider the investigation transcripts on the basis of other evidence in the case before determining whether they could serve as a foundation for determining facts. However, after being summoned according to law by the court of first instance, Wei Hengnie and two other persons did not appear in court and thus failed to confirm the investigation transcripts. In addition, the contents of investigation transcripts have some points which were contrary to other evidence in the case. As such, the court of first instance did not adopt the three investigation transcripts, which was not improper. As well, the agreement concluded on December 23, 2006 did not discuss the alleged loan, thereby failing to support the conclusion that Bian Y ue and two other persons concluded the agreement as witnesses for such loan. On the contrary, in the agreement, Wei Hengnie and five other persons agreed to clarify, within ten days, all accounts for Lianda Plant from its establishment to the effective date of this agreement, and agreed to contract Lianda Plant to third parties and utilize the contracting fees to repay the debts of Lianda Plant as well as their investments. This could prove that Bian Yue and five other persons were associated with Lianda Plant as investors, and Wei Hengnie and five other persons were associated as joint investors rather than being in a creditor-debtor relationship. Quite the contrary, if the court accepted the defense of Bian Yue that “such funds were borrowed”, it would not only cause the parties involved not to assume liabilities for the concluded agreement, but also cause uncertainty and bad faith in contract. This would also be patently unfair to external creditors. As such, the aforementioned opinions of Bian Y ue should not be adopted.
2. The unspecific amounts and proportions of contributions by Bian Yue and other persons, as well as the professed nature of Lianda Plant as a sole proprietorship did not affect the civil liabilities assumed by each partner.
The amount and ratio of contributions are major aspects of a partnership agreement. They concern only the internal relationship between partners in the partnership enterprise and should not affect the liability assumed by the partnership enterprise and the partners thereof. Though the amount of contributions and ratio of contributions of the partners are unclear on the basis of existing evidence, this does not affect the liability assumed by Bian Yue and other partners.
As specified in the partnership contract, after the establishment of the partnership enterprise, the enterprise continued to use the original name and business license. The original business license obtained as a sole proprietorship was owned by the partnership enterprise as of the date of the conclusion of the partnership contract, and Wei Hengnie, the original investor, should not utilize this business license separately. As such, although Lianda Plant has been transformed into a partnership enterprise in substance and its production and operating activities were under shared decision-making, it remained a sole proprietorship as registered with the administrative department for industry and commerce. In other words, Lianda Plant’s failure to faithfully change its nature was an unlawful arrangement by each partner. As each partner jointly participated in the production and operation activities of Lianda Plant, each of them should assume liabilities for its debts. Bian Yue and other partners did not change the nature of Lianda Plant from a sole proprietorship into a partnership intentionally, this is an act which should not only be restricted by relevant administrative regulations, but also should not serve as grounds for their rejection of civil
liabilities. Otherwise, the security of transactions would not be protected and the purposes of the partnership enterprise and partners thereof, restricted by relevant laws and regulations, would be frustrated.
3. The trial procedures of the court of first instance were legal.
When the court of first instance failed to serve relevant legal documents such as summons to Jiang Zhenwei and other persons, it served them by public announcement, which complied with legal regulations. After legally being summoned by the court, Jiang Zhenwei and other persons did not appear in court without providing a valid excuse. As such, the case could be heard by default by the court of first instance in accordance with the law. Bian Yue alleged that the court of first instance held an open trial when relevant parties involved did not receive a summons; this did not comply with the facts. Bian Yue’s appeal ground that the trial procedures of the first instance were illegal lacked factual basis, and should not be adopted.
In conclusion, Lianda Plant was registered as a sole proprietorship in the administrative department for industry and commerce. However, in substance, it was a partnership enterprise owned and operated by Bian Yue, Wei Hengnie, Jiang Zhenwei, Zhu Yongbing, Yin Hongxiang, and Hong Bin. The payment for goods amounting to 1,213,785.95 yuan owed by Lianda Plant to Shuangying Company occurred during the partnership period and thus was a debt of the partnership enterprise. There are relevant provisions on how to bear the debts of a partnership enterprise in the General Principles of the Civil Law, the Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law (for Trial Implementation), and the Partnership Enterprise Law of the People’s Republic of China (hereinafter referred to as the “Partnership Enterprise Law”) (implemented as of August 1, 1997). Pursuant to Article 39 of the Partnership Enterprise Law, “A partnership business shall first of all use all of its property to repay its debts. Where the property of the partnership business is insufficient for repayment of its payable debts, each partner shall bear unlimited joint liabilities for the repayment.” Paragraph 1 of Article 40 prescribes that “Where debts of a partnership business cannot be fully borne by the property of the business concerned, the insufficient part shall be paid by each party by using property other than that having been contributed to the partnership business according to the proportion set in the first paragraph of Article 32 of this Law.” Accordingly, the debts of a partnership enterprise should be borne at two levels: the partnership enterprise was the debtor first in sequence, and all partners were the debtors second in sequence. Since it was the partnership enterprise and not the partners that completed the transaction with the creditors, the partnership enterprise was the subject having a direct legal relationship with the creditors, and therefore all of its property was first used to repay the debt. The partnership enterprise did not have status as a legal person. As such, a common partner is not under the protection of limited liability. Where the property of a partnership enterprise is insufficient to repay debts, all its partners should assume unlimited joint and several liabilities for the part of the debt that was not repaid by the partnership enterprise. Therefore, the “joint liabilities” as mentioned in Article 39 of the Partnership Enterprise Law refers to the joint liabilities of the partners assuming liability second in sequence, rather than the joint liabilities between the partnership enterprise and the partners thereof. In this case, Lianda Plant should repay its debts to Shuangying Company first
People’s Republic of China (hereinafter referred to as the “Partnership Enterprise Law”) (implemented as of August 1, 1997). Pursuant to Article 39 of the Partnership EnterpriseBusiness Law, “A partnership business shall first of all use all of its property to repay its debts. Whereas the property of the partnership business is insufficient for repayment of its payable debts, each partner shall shoulder bear unlimited joint liabilities for the repayment.” Paragraph 1 of Article 40 prescribes that “Whereas debts of a partnership business cannot be fully borne by the property of the business concerned, the insufficient part shall be paid by each party by using property other than that having been contributed to the partnership business according to the proportion set in the first paragraph of Article 32 of this Law.” Accordingly, the debts of a partnership enterprise should be borne at two levels: the partnership enterprise was the debtor first in sequence, and all partners were the debtors second in sequence. Since it was the partnership enterprise and not other than the partners that made completed the transactions with the creditors, and the partnership enterprise was the subject with having a direct legal relationship with debtorsthe creditors, and therefore all of its property was firsttly used to repay the debts. The partnership enterprise did not have status as athe legal person status. SoAs such, a common partner is not under the protection of limited liabilityies. Where the property of a partnership enterprise wisas insufficient to repay debts, all its partners should assume unlimited joint and several liabilities for the part of the debts that were was not failed to be repaid by this the partnership enterprise. Therefore, the “joint liabilities” as mentioned in Article 39 of the Partnership Business Enterprise Law refersred to the joint liabilities of the partners in the liability assumptionassuming liability second in sequence, rather than the joint liabilities between the partnership enterprise and the partners thereof. In this case, Lianda Plant should repay its debts to Shuangying Company firstly with all of its property. Where its property was is insufficient to repay its debts, Bian Yue and other partners should assume unlimited joint and several liabilities for the debts that failed to behave failed to be repaid. The judgment of first instance did not differentiate the sequence for assuming liabilitiesthe assumption of liabilities by of Lianda Plant, Bian Yue, and other partners, which should be rectified. In conclusion, the appeal requests of Bian Yue lacksed both factual basis and legal basis, and should not be supported. The facts found in the judgment of first instance were clear and the trial procedures were legal. However, the application of law was incorrect. In conclusion, on November 17, 2009, in accordance with Articles 159 and 161 of the Contract Law of the People’s Republic of China, Article 39, and paragraph 1 of Article 40 of the Partnership Enterprise Law, and Article 130, and Item (2), Paragraph 1 of Article 153 of Civil Procedure Law, the Higher People’s Court of Jiangsu Province rendered its judgment as follows: 1. Item (1) and the part concerning the case acceptance fees in the civil judgment (No. 0062 [2007], First, Civil Division II, IPCIntermediate People’s Court of, Nantong City, Jiangsu Province) made by the Intermediate People’s Court of Nantong City, Jiangsu Province shall be maintained; 2. Item (2) of the civil judgment (No. 0062 [2007], First, Civil Division II, Intermediate People’s Court ofIPC, Nantong City, Jiangsu Province) made by the Intermediate People’s Court of Nantong City, Jiangsu Province shall be quashed;
16
3. Wei Hengnie, Jiang Zhenwei, Bian Yue, Zhu Yongbing, Yin Hongxiang, and Hong Bin shall bear unlimited joint and several liabilities for the debts that have failed to be repaid by Lianda Plant. This judgment shall be final.
17