Beijing Tongzhou Court released "Beijing City Deputy Center private enterprise business trial white paper (2016-2021)"
[Referee] Tongzhou Court believes that the party should first fulfill the debt, there is exact evidence that the other party has one of the following circumstances, can suspend performance: (1) The business situation is seriously deteriorated; (2) transfer property, escape funds, With an escaping debt; (3) Loss business reputation; (4) other situations that have lost or may lose their debt capacity.
If the parties don’t have any exact evidence, they should bear the responsibility of breach of contract.
The parties should be notified in a timely manner in accordance with the above provisions.
When the other party provides appropriate guarantees, the fulfillment should be resumed.
After the discovery, the other party did not resume the performance capabilities within the reasonable period and did not provide appropriate guaranteed, and the permit can release the contract. According to the convention, the medical equipment company should pay 80% of the 300 ventilator payment before May 8, 208. Tie 58.8 million yuan is produced by the manufacturer, so the medical equipment company should first fulfill the debt. Only when the medical equipment company has exact evidence that the logistics company has lost or may lose its debt capacity, the party may abort the payment obligations according to law, and should notify the other party in time after suspended performance. In this case, on the one hand, the medical equipment company does not have an 80% payment of 300 ventilator, and the logistics company is not obliged to export to the manufacturer, so the logistics company has not delivered all the goods and cannot explain its loss or possibly Loss performance.
According to the relevant evidence submitted by the medical equipment company, the logistics company has lost or may lose the performance of the logistics company or may lose the conditions of the logistics company in its expiration of the payment obligation, which does not meet the conditions of the unanual defense; on the other hand, according to the law, medical equipment The company will exercise an uneasiness of the claim to notify the logistics company in a timely manner to restore the performance or provide guarantee in a timely manner, but in case evidence that the medical equipment company does not exercise the disorder of unanimous defense when the medical equipment company payment is expired. Express. Therefore, the medical equipment has advocated the right to exercise the right to pay for the right to pay, and the court does not support it. In the end, the court recognizes medical equipment companies to breach contracts and bear the liability of breach of contract.
After the first instance, the medical equipment company did not accept the appeal, the second instance court decided to dismiss the appeal and maintained the original judgment. Typical Significance: "Unsave Defense", also known as guaranteeing the right to defense, refers to the establishment of the Shuangwang contract, according to the contract, should first fulfill the contractual obligations, the other party cannot perform contractual obligations, or if there is a contract When the obligation, the right to perform contractual obligations is temporarily suspended before the other party is performed or guaranteed. However, in order to prevent the abuse of distress claims, put an end to any excuse of the other party does not fulfill the debt or there may be the possibility of fulfilling the debt of the debt, the debt should be in fulfilling the debt, the debt of the contract, the "Principal" "Civil Code" Clearly stipulate that the party to fulfill the debt of the debate against definition of debt should give the other party’s legally unable to fulfill the exact evidence that there is anything that cannot fulfill the possibility of debt. The typical significance of this case is that the reminder of the parties need to pay attention to the following points: First, the parties must have exact evidence to prove that the other party has seriously deteriorated; transferring property, escape funds, to escape debts; loss of business reputation; Loss or may lose other situations that fulfill their debt capacity.
The above evidence should be obtained before the exercise, and according to this as a basis for the performance of the opposing party; the second is that the exercise of uneasiness should be made in a notice, and the notice should be clearly indicated by the meaning of the hand, the meaning of the hand, and the specific reasons, Evidence should be attached if necessary, so that the other party takes appropriate way to restore its performance or provide guarantees to facilitate the contract to continue its performance.
Case 2 [Basic Case] ??At a certain relationship with 上海松江品茶联系 clothes, Li signed the "Cooperation Agreement" agreement, all parties cooperated to jointly set up a joint-stock company, (Download Name: Educational Technology Co., Ltd.), carry out children’s education and training, agreement Project-related courses, technology, operation management and funds of 350,000 yuan, accounting for 45% of the shares, providing funds of 350,000 yuan and online technical support, 上海吃广式早茶的地方 accounting for 25% of shares; Li Mou is 450,000 yuan to share, accounting for 30% The general manager of the shares and clothes. The profits generated by the Common Investment School are allocated to allocate all joint investors.
After signing the agreement, it has paid 350,000 yuan in investment.
In a case where the cooperation industry is not completed, Jacket, Li Mou has not carried out cooperation projects, and the agreement has not actually fulfilled and cannot be fulfilled.
The company is now the company’s company is your own company, that is, an education company.
In this regard, the clothes indicated that the company that disagreed to the protocol, the company agreed, is an education company, which is registered on the agreed project address. Each investor is the most beginning to register a new company, but because of the problem that the registration address cannot be resolved, and the newly established company cannot use education and training words, and finally use a business license of a education company, and clothes let other investors register as An education company shareholders, but other investors do not agree.
The cooperation project of this case is not implemented through the company, but through the implementation of the agreement, the investment ratio of cooperation projects is determined by the agreement, profit distribution and loss sharing should also be implemented in accordance with the agreement. Submitted a WeChat chat group including Li, Yu, proved that it has been in a group chat in group chat. At a certain beginning, I thought that a partner is a cooperative project. Everyone is renovated together, but later I feel that the store is not a cooperative project, and the clothes say that the new company license has not been done, and the business registration is not there, so I think clothes is Use investment to run your company. Suppose the court recognizes that the store is a cooperative project, and it does not agree to audit and clear the project. [Referee "] Tongzhou courts believe that the parties concerned: the parties of the partnership agreement, not violating the law, administrative regulations, and legally effective. Now in a request to relieve the "cooperation agreement", it is required to return investment and interest. Tongzhou Court believes that although the tripartite has not set up a joint-stock company in accordance with the agreement, it has selected the business address and has selected business addresses. Carry out the outside operation of a "one Youth Technology Club", at the same time, the store has a financial group, a piece of clothes, Li and others, the WeChat group, the equipment procurement, campus decoration, and financial situation. Communication, this can be seen that the "Cooperation Agreement" has been actually carried out, and it is also involved in the management management of the project. The purpose of the contract is not to be realized, and the dispense condition of the contract is not yet reached.
At the same time, all parties are based on the "Cooperation Agreement", and all parties have been used for project development. If they want to cancel the contract needs to be liquidated to determine a total of assets, common debts, now only require the release of contract refund, but It is clear that disagreement does not agree on the cooperation project, and there is no condition to disseminate cooperation. Therefore, the claims have lack facts and legal basis, rejected in a litigation request. After the first instance of the pronunciation, I did not accept the appeal, and the second instance court sentenced to the appeal and maintained the original judgment.
Typical Significance: By investing in investors, cooperates to operate, share income, sharing losses, and is a common investment model in business operations. The parties are based on contributing to fund, representing one or a few people, collecting the funding of the parties, and then puts the payment into the operation of the cooperative project.
In the case where the investment project has been carried out, the investment of the parties has been put into the project.
At this point, if you have an investor exiting, or ask the contract, you need to clear the project assets to determine the benefits, investment of the parties, investment and profitability. In the case where the parties have failed to clear the partnership, the investor requires the development of all investment funds. On the other hand, the development of the project that can continue to operate, causing the rest of the investors to cause property rights; on the other hand, invest If the person has not born in the project, the debt retreats will be retired, which will cause investors to evade investment obligations when they encounter difficulties, and avoid the corresponding responsibilities, which is not conducive to the fairness and stability of commercial investment. Investment in the market economy is not conducive to economic development.
Therefore, in the case where the cooperation relationship is not clear, it shall not be supported by one party to return all investment.