1, March 15, 2013, Huanren, Liaoning Rural Commercial Bank Co., Ltd. to build working group (hereinafter referred to as the preparatory work group) signed a "letter of intent to purchase equity" and Tokai century , on the East China Sea century the formation of investment into agriculture to increase their investment Huanren Reach agreement on relevant matters of the firm ;

2. On April 24, 2013, Donghai Century and Yuhui established a limited partnership: Yuhui invested 5 million yuan and assumed limited liability ; Donghai Century invested 30 million yuan and assumed unlimited liability . East Century issued by the "letter of appointment" which is a partnership of the enforcement branch of the East China Sea II partner.

3. On August 29, 2013, Donghai No. 2 remitted 90 million yuan to the preparatory work group . On the next day , Donghai Century issued a "Statement" to the preparatory work group , clarifying that it was assigned to the preparatory work group on August 29, 2013 to subscribe for shares The 90 million yuan in the gold account is the share capital of Donghai No. 2 entrusted by Donghai Century to pay on behalf of Donghai Century, and the legal representative of Donghai Century is entrusted with full power to handle matters related to the shareholding of Huanren Rural Commercial Bank, including but not limited to Allocation and receipt of funds.

4. On March 28, 2014, Bohai Trust issued a "Lawyer's Letter" to the preparatory work group, requesting the preparatory work group to immediately return the 90 million yuan invested in Donghai No.2 .

5, during the first trial, the court and obtain Tokai century legal representative of the investigation information Dong alleged contract fraud, investigation : 2013 8 - September period, the legal representative of Dong Tokai century take issue false documents and other means to cheat the Bohai Sea Trust trust, defrauding Bohai Trust's investment fund of 90 million yuan by signing a false contract.

1. Although Donghai No. 2 paid the 90 million yuan involved in the case to the special account of the preparatory working group, the payment of the payment was based on the new capital subscription intention established between the preparatory working group and Donghai Century and issued by Donghai Century The "Statement of the Situation" has a corresponding legal relationship.

2. Donghai No. 2 is a limited partnership. Donghai Century is the sole executive partner of Donghai No. 2. He has exclusive and exclusive executive power over the internal affairs of the partnership, that is, has control and control over the internal affairs of the partnership. After the preparatory work team obtained 90 million yuan, it transferred the money involved in the case to the personal account of its legal representative Li Dong designated by Donghai Century in accordance with the "Statement" issued by Donghai Century. The preparatory working group’s trust and interest in Donghai Century shall be protected by law. In addition, the preparatory work group transferred 90 million yuan of the case to Li Dong’s personal account designated by Donghai Century in accordance with the authorization and entrustment of Donghai Century in the "Statement of Information". Did not obtain improper benefits.

Therefore, the Supreme Court dismissed the plaintiff’s request for the return of the 90 million yuan subscription money involved in the case.

This case was caused by the illegal and unauthorized disposal of the partnership property by the representative of the executive partner, which caused losses to the partnership. Although the Supreme Court has made an effective judgment on this case, the legal issues raised by this case need to be further studied and considered.

A partnership is a typical commercial organization where human and sexual factors dominate. When dealing with cases involving partnership-related disputes, lawyers can think about the partnership’s external and internal relations. The following author intends to combine legal provisions , Practical experience put forward some opinions and opinions:

The second and third paragraphs of Article 26 of the "Partnership Law" are the basis for the source of the rights of delegated representatives.

The article stipulates: "According to the agreement of the partnership or the decision of all partners, one or more partners may be entrusted to represent the partnership enterprise and execute partnership affairs.

"Where a legal person or other organization as a partner executes partnership affairs, it shall be executed by a representative appointed by it."

From a legal point of view, an appointed representative is an indirect representative if authorized by the executive partner to represent the partnership. Different from the legal representative of a limited company directly representing the company, the appointed representative of a partnership enterprise is independently appointed by the executive partner. If the partnership agreement does not specifically stipulate, only the executive partner is required to perform relevant procedures in accordance with its internal system , The appointment and removal can be completed by making a unilateral decision. Therefore, the law does not clearly stipulate whether the duties of the appointed representative should be undertaken by the partnership. Judging from the case of court judgments, the second-instance civil case of Shanghai Zhongyun Asset Management Co., Ltd. v. Shanghai Shandu Jiqiu Investment Partnership (Limited Partnership) in Shanghai No. 1 Intermediate People’s Court ( 2016 ) Hu 01 Min Zhong 9525 In the judgment, the court held that based on the facts ascertained, Jiqiu Enterprise (plaintiff) failed to provide evidence to prove that the amount in dispute was paid to Zhongyun Company by Mao Haopeng (defendant) unauthorized use of his authorized representative status. Jiqiu’s claim that Mao Haopeng had infringed on the transfer of 3.8 million yuan could not be determined. In other words, the court held that in this case, the authorized representative of the partnership enterprise has a legal appearance and there is no evidence to the contrary to prove the act of the appointed representative, and the reasonable trust of the counterparty should be protected.    

As for this case, the Supreme People’s Court believes that Donghai Century is the sole executive partner of Donghai No. 2 and has exclusive and exclusive executive power over the internal affairs of the partnership, that is, it has control and control over the internal affairs of the partnership. After the preparatory work team obtained 90 million yuan, it received the "Statement" issued by Donghai Century, and was told to transfer the money involved in the case to the personal account of its legal representative Li Dong designated by Donghai Century. The preparatory working group’s trust and interest in Donghai Century shall be protected by law.

Therefore, as the counterparty to the transaction, judge whether the appointed representative of the partnership enterprise has the right to conduct transactions and dispose of property on behalf of the partnership enterprise. Based on the background of the transaction, conduct formal examinations on whether the appointed representative has the agency authority of the partnership enterprise, as reasonable as possible Prudent duty of care.

Article 96 of the "Partnership Law" clearly stipulates: " Partners perform partnership affairs, or partnership business employees take advantage of their positions to take advantage of the partnership business as their own, or adopt other means to invade the partnership. In case of enterprise property, the interest and property shall be returned to the partnership enterprise; if losses are caused to the partnership enterprise or other partners, they shall be liable for compensation in accordance with the law. ” Article 97 stipulates: “ Partners must comply with this regulation or the partnership agreement. may only unanimous consent of all transactions executed without treatment, causing losses to the partnership enterprise or to other partners, be liable for compensation according to law " . According to this article, when the relevant partners and their delegated representatives take advantage of the convenience of executing partnership affairs and violate the provisions of the partnership agreement, they will not be able to deal with the partnership affairs without the unanimous consent of other partners and cause losses to other partners. the right to bring damages actions .

In (Foshan Intermediate People's Court in 2019 ) Guangdong 06 Min Zhong 2452 number to Cai, Deng Qiqi tort liability disputes second instance civil ruling , the court held that the present case to Cai Zhiyong Deng Qiqi unauthorized disposal of property and illegal occupation of Kunli factory grounds, v. Deng Qiqi is requested to compensate for the losses it caused. Therefore, this case should belong to the scope of disputes over tort liability. Cai Zhiyong's lawsuit complies with the law, and the court of first instance should hear it. As to whether Cai Zhiyong's litigation request can be finally supported, it should be handled by the people's court before substantive processing.

Specific to the case mentioned at the beginning of this article, Donghai No.2, as the victim who suffered direct losses, can file a lawsuit for compensation for tort damage in another case, requiring the corresponding infringing subject to bear the responsibility for damages .