Question 1: What is a joint venture contract?
Question 2: What does a joint venture contract mean?
A joint venture contract usually refers to an agreement in which two or more economic organizations agree to jointly contribute capital and jointly engage in certain production and economic activities in order to achieve the same economic purpose. Joint venture contracts can be classified differently from different perspectives. For example, according to the closeness of the joint venture, it can be divided into tight joint venture, semi-tight joint venture, loose joint venture, or legal person joint venture, partnership joint venture, contract joint venture, etc.; according to the respective industry attributes of the joint venture, it can be divided into industrial and industrial joint ventures. Production joint ventures between industry and commerce, production and marketing joint ventures between industry and commerce, technical joint ventures between industry and scientific research departments, investment joint ventures between industry and financial departments, etc.; according to the ownership forms of the joint venture parties, it can be divided into joint ventures between enterprises owned by the whole people. Joint ventures, joint ventures between collectively owned enterprises, joint ventures between the whole people and collectively owned enterprises, etc.
From the management practice of economic contracts, joint venture contracts should be divided into three types of contracts: legal person joint venture, partnership joint venture, and collaborative joint venture. Therefore, the text of the joint venture contract should also be classified according to the terms of the joint venture contract. This classification is standard.
The basic characteristics of a legal person joint venture contract are:
First, all parties to the joint venture must have a common investment, which can be capital, physical objects, industrial property rights and non-patented technology wait. Second, the joint venture is an autonomous economic joint entity with legal person status; third, since the joint venture has legal person status, all parties to the joint venture are liable for the debts of the joint venture to the extent of the investment amount.
The basic characteristics of a partnership-type joint venture contract are:
First, a partnership-type joint venture can form an organization, but this organization is not an economic entity and does not have legal personality. It is similar to a partnership between individual citizens. Second, all parties to a partnership-type joint operation must have investments. However, for the debts of the joint venture, the joint venture parties cannot only bear liability to the extent of their investment. Instead, the joint venture parties shall bear liability in accordance with the proportion of capital contribution or as agreed in the agreement. Responsible for the property owned or managed by each. Those who bear joint and several liability in accordance with the provisions of the law or the agreement shall bear joint and several liability. Third, the parties to a partnership joint venture directly participate in the management of joint venture affairs, unlike the legal person joint venture, where the property rights of the joint venture parties are separated from the management rights of the joint venture legal person.
The basic characteristics of a collaborative joint venture contract are:
Each joint venture unit operates its own business in accordance with the stipulations of the contract, and each assumes property responsibilities. Judging from its type and characteristics, this kind of joint venture contract is not actually a joint venture contract, because the parties to this type of contract generally do not contribute capital, and the rights and obligations in all aspects of the joint venture can be classified according to various types of contracts stipulated in the Economic Contract Law. kind. For example: (1) The long-term supply relationship formed based on the professional collaboration of products between the main engine factory and the accessory factory, the assembly factory and the machine parts factory, the processing factory and the raw material factory. Nowadays, it is often called a joint venture contract. In fact, it is a purchase and sale contract. A contract is different from a general purchase and sale contract in that there is an "associate organization" to coordinate the relationship between them. (2) One party invests in buildings, machinery and equipment, charges a fixed amount or a fixed proportion of fees, but does not participate in operation and management, and does not bear risks and debts; the other party engages in production and operation and bears risks. This joint venture is actually a kind of property leasing Contractual relationship. (3) The exchange of different types of goods and the exchange of different specifications and models of similar goods between the parties to the joint venture is actually an exchange contract, and the relevant provisions of the purchase and sale contract may apply. (4) Processing enterprises invest in energy and raw material production enterprises, and the latter compensates the investment yearly or one-time with increased production products. This is actually a compensation trade, and the relevant provisions of the purchase and sale contract may also apply. (5) If one party provides trademarks, patents or non-patented technologies, charges a fixed amount or a fixed proportion of fees, does not participate in business management, and does not bear losses, it is actually a trademark license and technology transfer contract.
Of course, collaborative joint venture contracts also have characteristics that are different from general economic contracts, that is, these contracts often contain some clauses about mutual coordination and strengthening business relationship management, and sometimes some kind of agreement must be established according to the contract. form of coordinating body.
Basic requirements for signing a joint venture contract
First, like the signing of other economic contracts, the signing of a joint venture contract must also implement the principles of equality, mutual benefit, consensus through consultation and good faith. No party may impose its will on the other party, nor may the superior authorities of each party interfere illegally.
Second, since the joint venture contract involves all aspects of people, property, property, production, supply and sales, the issues are relatively complex. All parties to the joint venture should conduct a serious feasibility study and analysis of the joint venture before signing the contract. Check each other out to prevent hasty signing.
Third, there are many types of joint venture contracts, and each contract has its own characteristics. The parties should sign the contract according to the characteristics of the joint venture contract and follow legal procedures. For legal person joint venture contracts and partnership joint venture contracts, special attention should be paid to three points: First, the relationship between the contract and the articles of association must be properly handled. These two types of contracts often coexist with contracts and articles of association, and articles of association and contracts should have their own emphasis and be consistent with each other. The second is to properly handle the relationship between the letter of intent and the formal contract. At present, when parties engage in joint ventures, they usually sign a letter of intent first and then sign a formal contract based on the letter of intent. Letters of intent are based on principles and are not legally binding.
Fourth, in practice, some local governments require joint venture contracts to be notarized or authenticated. This is beneficial to ensure the signing of a good contract. The parties concerned shall handle the matter in accordance with the requirements of the local government. If there are no regulations by the local government, if the parties concerned deem it necessary, the contract may also be notarized or authenticated.
Basic contents of the joint venture contract
1. Investment
According to the contract, investment is one of the basic obligations of the parties. Investments must have economic and practical value. In order to determine the profit and loss distribution ratio, the parties should price the capital contribution in the contract. When pricing investment properties, it must first be fair and reasonable, and secondly, it must comply with national pricing policies. When investing in labor services and technological achievement rights, they should be based on their economic benefits.
Not all property can be used as investment. Items whose circulation is prohibited or restricted by the state may not be invested or may not be invested within a certain range. When investing in the establishment of a new enterprise, the enterprises participating in the joint venture shall not use the tax profits, depreciation funds and capital occupation fees that should be paid to invest in the joint venture, nor may they misappropriate special funds allocated by the state for investment.
II. Profit Distribution and Loss Burden
The profits realized by the joint venture will be distributed by the joint venture parties in accordance with the articles of association and the contract after they are withdrawn from corporate funds or accumulated by public funds in accordance with regulations. distribute. The specific distribution ratio should be clearly agreed upon by the parties in the contract. If there is no agreement, the following distribution methods are often used in practice: (1) Distribution according to the price proportion of the investment of the joint venture parties; (2) According to the proportion of the profits of the joint venture parties before the joint venture is established to the total profits of the parties after the joint venture. Distribute; (3) Distribute to the joint venture party according to a fixed amount or proportion, and the remaining part belongs to the main factory.
For the losses of the joint venture, the proportion of each party's burden should be the same as the proportion of profit distribution. In a legal person-type joint venture, the amount of property that each party bears losses should be limited to the amount of investment; in a partnership-type joint venture, the losses incurred by the parties to the joint venture are not limited to the amount of investment. If the investment amount is insufficient to compensate, they should use their own other properties to compensate Bear liability; if the parties agree to be jointly and severally liable by law or contract, they shall bear joint and several liability.
3. The organizational form of joint venture and the performance of joint venture obligations
For legal person joint ventures, the joint venture must have a legal organizational form, and the legal representative of the joint venture will conduct business on behalf of the joint venture. Activity.
Partnership-type joint ventures and joint ventures generally should also have a certain organizational form. The joint venture parties may establish a management and coordination organization or recommend a person in charge to implement relevant affairs in the joint venture and conduct external activities on behalf of the joint venture, and the legal consequences shall be borne by each joint venture. If there is no management, coordination body or person in charge, any party may carry out activities on behalf of the joint venture after negotiation between the parties.
IV. Liability for breach of contract
After a joint venture contract is established in accordance with the law, it becomes legally binding and cannot be changed or terminated by either party at will. Otherwise, you should bear legal liability. Common breaches of contract include: (1) Failure to invest according to the time limit, method, amount or proportion stipulated in the contract; (2) Misappropriation or transfer of investment funds or property of both parties without authorization; (3) Obstruction, Impede the normal business activities of the joint venture; (4) Withdraw from the joint venture without authorization.
Like other economic contracts, when a party to a joint venture contract breaches the contract, he shall also be liable to compensate for losses or pay agreed liquidated damages. If other parties require continued performance of the contract, the breaching party still needs to perform.
V. Dispute Resolution Methods
The resolution method of joint venture contract disputes is generally the same as the resolution method of economic contract disputes, that is, it can be resolved through negotiation between the joint venture parties, or you can apply for an arbitration award Or apply to the People's Court for trial in accordance with the law.