1999 65438+ 10, Party A, Party B, Party C and Party D decided to invest and set up a partnership enterprise and signed a written partnership agreement. The contents of the partnership agreement are as follows: (1) Party A contributes RMB 654.38+million in cash, and Party B contributes RMB 80,000 in kind. With the consent of the other three people, Party C contributes RMB 60,000 in labor discount and Party D contributes RMB 40,000 in cash; (2) Party A, Party B, Party C and Party D shall distribute profits and bear risks according to the ratio of 2: 2: 1: 1; (3) Party A carries out the partnership affairs and represents the partnership externally, and the other three people will no longer carry out the partnership affairs, but the signing of the sales contract and the entrustment contract shall be subject to the consent of other partners. The partnership agreement does not stipulate the operating period of the partnership enterprise.
During the duration of the partnership, the following facts occurred:
(1)1999 In May, Party A signed an entrustment contract with a bona fide third party in the name of a partnership. After learning about it, Partner B thinks that the contract is not in the interests of the partnership, and after consulting with Party C and Party D, it expresses to Company A that it does not recognize the contract, because Partner A has no right to sign a consignment contract with a third party alone.
(2) From June, 5438 to October, 2000, Partner Ding withdrew from the partnership, but his withdrawal did not cause any adverse impact on the partnership. In March 2000, Partner Ding withdrew from the partnership. As a result, the partnership accepted Wu Xin's participation, and Wu contributed 40,000 yuan. In May, 2000, Company A, the creditor of the partnership enterprise, demanded that the current partners A, B, C and E of the partnership enterprise and the quitter Ding * * * should be jointly and severally liable for the debt of 240,000 yuan incurred by partner Ding before he quit the partnership enterprise. Ding refused to take the responsibility of paying off debts on the grounds of quitting the partnership. E refused to take the responsibility of paying off his pre-professional debts on the grounds of his new occupation.
(3) In order to improve the operation and management of the partnership, Partner A decided in April 2000 to employ Party B other than the partner as the operation and management personnel of the partnership; And provide guarantee for company C in the name of partnership.
(4) In April, 20065438+0, Partner B was unable to pay off the debt of 80,000 yuan due to Company D in the sales contract signed with Company D. Company D filed a lawsuit with the people's court in June, 20001year, and the people's court ruled that Company D won the case. In August, 20001year, Company D applied to the people's court to enforce all the property shares of Partner B in the partnership.
Requirements:
According to the above facts, answer the following questions:
(1) Is the consignment contract signed by Party A and Company A in the name of partnership valid? And explain why.
(2) Is Ding's claim valid? And explain why. If Ding repays Company A's debt of 240,000 yuan, who will he recover from? How much recovery?
(3) Is the claim of E valid? And explain why.
(4) Is it legal for Party A to employ Party B as the manager of the partnership and provide guarantee for Company C? And explain why.
(5) After Partner B was enforced by the people's court for all his property shares in the partnership, the partnership decided to remove Party B. Is the practice of the partnership in compliance with the law? And explain why.
(6) What happened to the withdrawal of Partner Ding? What conditions does he have to meet to quit?
Case 1 answer
(1) The consignment contract signed by Party A and Company A in the name of partnership is valid. According to the provisions of the Partnership Enterprise Law, a partnership enterprise shall not oppose an uninformed and bona fide third party when restricting its partners' rights to carry out partnership affairs and represent the partnership enterprise externally. In this topic, although Partner A has exceeded the internal restrictions of the partnership, Company A is a bona fide third party, so the consignment contract signed by Company A and Company A in the name of the partnership is valid.
(2) Ding's claim cannot be established. According to the provisions of the Partnership Enterprise Law, the quitter shall be jointly and severally liable with other partners for the debts of the partnership enterprise that occurred before his withdrawal. If Party D repays the debt of 240,000 yuan to Company A, Party D can recover from partners A, B, C and E, and the amount of recovery is 240,000 yuan.
Analysis: The quitter (externally) is jointly and severally liable for the partnership debts incurred before quitting the partnership, but not for the partnership debts (internally).
(3) The claim of Company E cannot be established. According to the provisions of the Partnership Enterprise Law, the newly-joined partners shall be jointly and severally liable for the debts of the partnership enterprise before joining the partnership enterprise.
(4) Party A's act of employing Party B as the manager of the partnership enterprise and providing guarantee for Company C is not in compliance with the regulations. According to the provisions of the Partnership Enterprise Law, when a partnership entrusts one or several partners to carry out partnership affairs, the following matters must be unanimously agreed by all partners: ① Dispose of the real estate of the partnership enterprise; ② Change the name of the partnership enterprise; ③ Transfer or dispose of the intellectual property rights and other property rights of the partnership; (four) to apply for registration of change to the enterprise registration authority; (5) provide guarantee for others in the name of partnership; ⑥ Hire people other than partners as managers of the partnership; ⑦ Other matters stipulated in the partnership agreement.