Understand legal issues and give help.

First of all, it is determined that it is legal to remove the name in one of the following acts. You must find evidence to prove that the client has not committed the following acts.

Article 20 Under any of the following circumstances, a resolution may be made to replace the partner with unanimous consent of the other partners:

(1) Failing to fulfill the obligation of capital contribution;

(2) Causing heavy losses to the unit due to intention or negligence;

(three) there is misconduct in the execution of the affairs of the unit;

…………………………………………。

The resolution on the removal of a partner shall be notified in writing to the removed celebrity. The removed celebrity shall take effect from the date of receiving the notice of removal, and the removed celebrity shall withdraw from the partnership.

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Give a similar example.

On February 13, 2006, Cheng paid 20,000 yuan to the property management company, and the property management company issued a receipt, indicating that the reason for the payment was partnership. However, the Share Agreement has not been approved by Zhang and Ren, the shareholders of the company, and the company has not gone through the change registration formalities of Cheng's "shareholding" in the local industrial and commercial department.

The occupation program is illegal! ! ! !

Article 43 Unless otherwise agreed in the partnership agreement, the new partner shall be unanimously agreed by all the partners, and a written partnership agreement shall be concluded according to law.

When concluding the occupation agreement, the original partner shall truthfully inform the new partner of the operating and financial conditions of the original partnership.

(1) Occupancy program

The General Principles of Civil Law does not stipulate the occupation procedure. Article 5 1 of the Supreme People's Court's Opinions on Implementing the General Principles of Civil Law stipulates: "If there is a written agreement, it shall be handled in accordance with the agreement; If there is no agreement in the written agreement, it must be agreed by all partners. Without the consent of all partners, it is deemed invalid. " Article 44 of the Partnership Enterprise Law stipulates: "A new partner shall obtain the consent of all partners and conclude a written partnership agreement according to law." Article 56 stipulates: "The registered items of the partnership enterprise have changed or need to be re-registered due to reasons such as withdrawing from the partnership, joining the partnership, amending the partnership agreement, etc. , it shall go through the relevant registration formalities with the enterprise registration authority within 15 days from the date of making the change decision or reason. " Based on the above legal provisions, the occupation procedure can be summarized as the following three points:

1. If there are provisions in the written agreement, such provisions shall prevail; If there is no agreement, it shall be agreed by all partners. More specifically, the admission is a major issue, which must be unanimously agreed by all partners in principle and cannot be decided according to the principle that the minority is subordinate to the majority. However, if the original partnership agreement clearly stipulates that the majority of partners can decide to allow others to join the partnership, it should also be allowed based on the principle of freedom of contract.

2. Sign the occupation agreement according to law. The purpose of concluding the occupation agreement is to clarify the rights and obligations between the new partner and the original partner, which is helpful to reduce disputes. However, the occupation agreement is still a civil contract. According to the spirit of contract law, unless the law has special requirements, the form of a contract only has the effect of evidence, and it does not have the establishment or effectiveness of the contract. Therefore, whether it is a partnership or a general contract partnership, the law only advocates a written agreement, but if there is evidence that there is an oral or other form of occupation agreement between the two parties, and no other contract is invalid, the occupation agreement is of course valid. This provision of the Partnership Enterprise Law should be understood in combination with the principles of the Contract Law.

3. If it belongs to a partnership enterprise, it shall go through the registration of change according to law. However, industrial and commercial registration mainly plays the role of publicity, and it cannot be used against a bona fide third party without registration. Within the partners, the validity of the occupation agreement is judged entirely according to the provisions of the contract law, and the validity of the occupation agreement cannot be denied on the grounds that the registration has not been changed. This means that the original partner cannot deny the partner status and equity of the new partner on the grounds that the registration has not been changed; Nor can a new partner deny his obligations under the admission agreement on the grounds that he has not changed his registration.

(2) the responsibility of the occupier

Of course, the occupier shall bear unlimited joint and several liability for the partnership debts incurred after occupation. Whether the possessor should also bear unlimited joint and several liability for the partnership debts that occurred before his possession is controversial. In the practice of partnership litigation, new partners often argue that the partnership debts incurred before joining the partnership enterprise have nothing to do with it. On this issue, the legislation of different countries is also different. For example, the partnership law of Britain and Australia stipulates that the new partner shall not be liable for the original debts before the occupation, but most countries still stipulate that the occupier shall be equally liable for the partnership debts that occurred before the occupation. The first paragraph of Article 45 of China's Partnership Enterprise Law stipulates: "New partners enjoy the same rights and bear the same responsibilities as the original partners. If there are other provisions in the occupation agreement, those provisions shall prevail. " The second paragraph stipulates: "Before joining the partnership, the new partners of the partnership shall be jointly and severally liable for the debts of the partnership." It is not difficult to see from this clause that the occupier, like the original partner, is jointly and severally liable for the partnership debts incurred before its occupation. The reason why the second paragraph only says "joint and several liability" without mentioning "unlimited liability" is that it is a basic principle for partners to assume unlimited liability, which need not be repeated. Some scholars understand the second paragraph as "the possessor only bears joint and several liability with the property invested by the partnership" [63], which is one-sided. This is because if only the partnership property is responsible, there will be no joint liability. Joint and several liability itself is embodied in that when the property of the partnership enterprise is insufficient to pay off the debts of the partnership enterprise, the partners should bear joint and several liability, not just the proportion of their capital contribution.

It is in line with the concept of fairness for the occupier to bear unlimited joint and several liability for the partnership debts incurred before the occupation. As a group, partnership is continuous, and its capacity for civil liability is guaranteed by the personal property of its members, whether it is occupied first or later. Once a new partner joins the partnership, he not only enjoys the equity gained by joining the partnership, but also undertakes the obligations that accompany the equity. This is consistent with the responsibility of the company's new shareholders, who cannot claim exemption because the company's debts occurred before their shares. The only difference is that the shareholders of the company are only liable for the debts of the original company to the extent of their capital contribution, and the partners are jointly and severally liable for the debts of the original partnership with their personal property. Moreover, the admission agreement is an internal agreement of the partners, which is unknown to outsiders. If the new partner is not responsible for the debts of the original partnership, it is easy to evade the responsibility by fictional occupation time. Of course, the second paragraph of Article 44 of the Partnership Enterprise Law also stipulates: "When concluding the partnership agreement, the original partner shall inform the new partner of the operating and financial conditions of the original partnership enterprise." If the original partner deliberately conceals the business status of the partnership, or even fabricates facts to deceive the new partner to join the partnership, it shall be handled according to the relevant provisions of the Contract Law on concluding a contract by fraudulent means, depending on its specific circumstances, but it cannot be used against a bona fide third party. However, if the original partner colluded maliciously with the creditors of the original partnership to defraud the new partner to join the partnership to pay off the debts of the original partnership, it shall be treated as an invalid contract.

It is worth noting that if the partnership agreement stipulated in the first paragraph of Article 45 of the Partnership Enterprise Law has other provisions, from its provisions, it means that the new partner and the original partner can make an agreement on the commitment of the original partnership debt. In practice, many new partners do agree not to assume partnership debts before joining the existing partnership. At this time, this agreement obviously conflicts with the joint liability stipulated in the second paragraph of Article 45 of the Partnership Enterprise Law. How to do this? In fact, if we divide partnership affairs into internal affairs and external affairs, we can clearly distinguish internal legal relations from external legal relations. A partnership agreement, including an admission agreement and a withdrawal agreement, is an internal contract of partners, and the relevant provisions of the contract law apply, and most of its contents can be chosen by the parties at will. For example, the new partner can agree with the original partner not to bear the debts of the original partnership. The relationship between the new partner and the creditors of the partnership is an external legal relationship. Their rights and obligations are not only bound by the contract, but also by the mandatory legal norms in the partnership law or its laws. Its purpose is nothing more than protecting the interests of bona fide third parties. Therefore, if the new partner and the original partner agree that the new partner will not bear the debts of the original partnership, the agreement is only valid between the partners and cannot be used as a basis for confronting a third party other than the partners. After the new partner assumes the responsibility for the third party, he may claim compensation from other partners according to the provisions of the occupation agreement. It should be emphasized that it is very important to distinguish the internal legal relationship and external legal relationship of a partnership in the whole partnership law. Internal legal relationship is a kind of contractual relationship, which respects the autonomy of the parties and pays attention to arbitrary normative adjustment. External legal relations involve the interests of society and others, and are mainly based on mandatory norm adjustment. Failure to accurately distinguish the internal legal relationship from the external legal relationship of a partnership will often lead to mistakes in understanding, which will be involved in many legal issues of a partnership.

Second, the exit procedure and the responsibility of the quitter.

Quitting a partnership is different from dissolving a partnership. Although the partnership is based on the partnership contract, it is organized to some extent. If two or more partners are willing to continue the partnership after one partner withdraws from the partnership, there is no need for the law to deny the continued existence of the partnership, which will help maintain the stability of the partnership and make it really play the role of the market subject, thus contributing to economic development.

(1) Exit the program

The General Principles of the Civil Law does not stipulate the procedure for withdrawing from the partnership, but only stipulates in Article 31: "Partners shall conclude a written agreement on matters such as capital contribution, surplus distribution, debt commitment, admission, withdrawal and termination of the partnership." Article 52 of the Supreme People's Court's Opinions on Implementing the General Principles of Civil Law stipulates: "If a partner withdraws from the partnership, it shall be handled in accordance with a written agreement; If there is no agreement in the written agreement, it should be allowed in principle. However, if his withdrawal causes losses to other partners, he shall consider the reasons, reasons and faults of both parties and determine the liability for compensation he should bear. " In view of the frequent disputes over withdrawing from a partnership in judicial practice, the Partnership Enterprise Law has made detailed provisions on the procedures and responsibilities for withdrawing from a partnership, including eleven articles from Article 46 to Article 56. Based on the above legal documents, China has three exit procedures:

1. protocol exits. Withdrawal by agreement means that during the performance of the partnership contract, the quitter and other partners reach an agreement through consultation on the issue of withdrawal and the responsibilities of the quitter, so that the partner qualification of the quitter is eliminated. The problem often encountered in judicial practice is that the quitter and other partners agreed to return the investment of the quitter in the withdrawal agreement, but did not agree on the commitment of the partnership debt. Should other partners be deemed to give up the right to ask the quitter to share the partnership debt? Or do you think that the two parties have not made an agreement, so the relevant laws and regulations apply, and the quitter should be jointly and severally liable with other partnership enterprises for the partnership debts that have occurred before his withdrawal? This cannot be generalized, but should be analyzed according to the specific circumstances of the case. Generally speaking, the presumption that the parties give up their rights has a great influence on the parties and must be cautious. Unless it is clearly stipulated in the withdrawal agreement that the quitter will no longer bear the partnership debt before withdrawing from the partnership, or according to the contents of the withdrawal agreement, it can be reasonably and clearly determined that other partners have given up asking the quitter to share the partnership debt, otherwise it cannot be presumed that the quitter does not need to share the partnership debt before withdrawing from the partnership just because other partners agree to return the investment of the quitter. Of course, as mentioned above, the legal relationship of partnership is always divided into internal legal relationship and external legal relationship. If it is clearly stipulated in the withdrawal agreement that the quitter will no longer share the debts of the partnership before withdrawing from the partnership, the agreement is valid among the partners, and the parties can freely dispose of their civil rights, but the agreement cannot be against a third party. Creditors of the partnership still have the right to ask the quitter to bear the debts of the partnership before withdrawing from the partnership, but after the quitter assumes the responsibilities, he may claim compensation from other partners according to the withdrawal agreement.

2. announce your withdrawal. "Declaring withdrawal from partnership refers to the right between partners and their partners to terminate the legal relationship in the partnership contract according to the intention of one party. The withdrawal statement is expressed by the partner to the other partners in the meaning of one party. " [64] It is precisely because the withdrawal statement can only take effect if the withdrawing partner unilaterally expresses his will without the consent of other partners, so in order to protect the interests of other partners, the law must stipulate the necessary conditions and procedures for the withdrawal statement.

According to the provisions of Articles 46, 47 and 48 of China's Partnership Enterprise Law, the conditions for reporting withdrawal from the partnership mainly include (1) the reasons agreed in the partnership agreement; (two) it is difficult for partners to continue to participate in the partnership; (3) Other partners seriously violate the obligations stipulated in the partnership agreement; (4) The partnership agreement does not stipulate the term of operation of the partnership, and the withdrawal of partners will not adversely affect the implementation of partnership affairs. The procedure for announcing the withdrawal is that the withdrawing partner notifies all other partners, and the notice will take effect when it arrives. Where a partnership elects a representative of a partner, the notice to the representative may be regarded as a notice to all partners. In addition, in the case of item (4), the withdrawal from the partnership must be made at an appropriate time that will not affect the partnership affairs, and the other partners should be notified 30 days in advance so that the other partners can be prepared to avoid and reduce losses. If the above four conditions are not met, the shares will be withdrawn without authorization, and if losses are caused to other partners, compensation will be made.

3. Legal withdrawal. Legal withdrawal refers to the elimination of partner qualification due to some reason not based on the expression of partner's will but according to the law. According to the partnership enterprise law, the situations of legal withdrawal in China include: (1) the partner dies or is declared dead according to law; (2) The partner is legally declared as a person without civil capacity; (3) The individual partner is insolvent; (4) All the property shares of the partners in the partnership enterprise shall be enforced by the people's court.

In addition to the above three conditions and procedures, there is another form of eliminating partnership qualification, that is, delisting. Deletion means that a partner violates the law or the contract, and other partners unanimously decide to deprive the partner of his partner qualification. The delisting conditions are as follows: (1) the partners have not fulfilled their capital contribution obligations; (2) Causing losses to the partnership enterprise due to intentional or gross negligence; (three) improper behavior in the implementation of partnership affairs; (4) Other reasons stipulated in the partnership agreement. The procedure of delisting is: (1) All partners except celebrities must agree unanimously; (2) The resolution on the removal of a partner shall be notified to the removed celebrity in writing, and the removal shall take effect from the date when the removed celebrity receives the notice of removal, and the removed celebrity will withdraw from the partnership. At the same time, in order to prevent the majority partners from harming the interests of minority partners, the law also provides relief channels for celebrities who have been removed from the list. If the removed celebrity disagrees with the removal resolution, he may bring a lawsuit to the people's court within 30 days from the date of receiving the notice of removal. This kind of lawsuit belongs to the lawsuit of confirmation.

(two) the rights and obligations of the quitter

1. If a partner withdraws from the partnership, the other partners and the withdrawing partner shall conduct liquidation according to the property status of the partnership at the time of withdrawal, and return the property share of the withdrawing partner. If there are unfinished partnership affairs when withdrawing from the partnership, it shall be liquidated after liquidation. For example, a real estate development project operated by a partnership has not yet been settled. At this time, whether the project wins or loses is unknown, and it is actually impossible to settle. The above withdrawal settlement is a typical and standardized settlement method. However, in the practice of partnership, due to the time-consuming and labor-intensive comprehensive accounting of partnership assets and high cost, in order to simplify the procedure of withdrawing from partnership, partners often estimate the value of partnership property and determine the share of property that should be returned to the withdrawing partner through consultation. Even when you quit, there are unfinished partnership affairs, which could not be settled originally. In practice, partners can determine the share of property that should be returned to the withdrawing partners through estimation. This Agreement shall also be valid, unless there is a major misunderstanding or obviously unfair's situation, and the burden of proof for the major misunderstanding or obviously unfair lies with other partners who have not quit the partnership. In judicial practice, we should try our best to maintain the effectiveness of the contract and establish a business ethics of honesty and credibility.

2. If the withdrawing partner contributes in kind, because withdrawing from the partnership is different from dissolving the partnership, withdrawing from the partnership only means that the subject of the partnership has changed, and the partnership itself still exists and continues to operate. In order to maintain the stability of the partnership and protect the interests of other partners, in principle, it is not allowed to ask for the return of physical objects, only the currency with corresponding value can be returned. However, if the return does not affect the partnership affairs; Or with the unanimous consent of other partners; Or if the original partnership agreement clearly stipulates, it can be returned in kind. China's "Partnership Enterprise Law" is not clear about this point. The Partnership Enterprise Law only stipulates that it shall be stipulated in the partnership agreement or decided by all partners. When no agreement is reached or all partners can't make a unanimous resolution, the handling method needs to be improved.

3. A quitter without objection, like other partners, shall bear unlimited joint and several liabilities for the partnership debts that have occurred before he quits, and shall no longer be liable for the partnership debts that have occurred after he quits. The problems that need attention are as follows: 1. If a partner withdraws from the partnership in accordance with the provisions of Article 47 of the Partnership Enterprise Law, the withdrawing partner shall notify the other partners 30 days in advance. At this time, the effective date of withdrawal should be the thirtieth day after the notice of withdrawal reaches other partners, and the quitter should be responsible for the partnership debts before the withdrawal takes effect. Secondly, the partnership enterprise is a registered partnership enterprise or other forms of partnership organization, and the registration needs to be changed when quitting the partnership. Due to the publicity and credibility of the registered partner list, after the third party has business with the partner because of trusting the partner's credit, the partner cannot claim exemption on the grounds that he has withdrawn from the partnership and has not changed his registration. At this time, it is necessary to distinguish the internal legal relationship and external legal relationship of partnership. Externally, although the quitter has declared or reached an exit agreement, he cannot confront a bona fide third party before changing the registration. Internally, after the quitter bears the civil liability from the time of withdrawal to the time of change of registration, he can recover from other partners. If the partnership enterprise has caused losses to the quitter due to its delay in handling the change registration, the partnership enterprise shall also compensate the quitter for the losses.