费嘉彬律师｜“地摊经济”真的要回来了，你准备好了吗？

    上班路上，在街角的早餐摊买个热腾腾的煎饼，开启元气满满的一天；加班的深夜，摊点温暖的灯光和香气四溢的食物，安抚肠胃和灵魂。这便是“地摊经济”的魅力所在。

     自3月以来，随着各地政策的放开，“地摊经济”成为了经济复苏的新动力，一方面拉动就业人数上升，另一方面带动消费。更有成都率先恢复地摊经济后，两个月提供8万人员就业的成功示范效应。一时间，地摊经济重回大众视野，成为热议话题。
     On the way to work, buy hot pancakes at the breakfast stand on the corner to start a vibrant day; late at night, stalls with warm lights and delicious food to appease the stomach and soul. This is the charm of the "ROAD-SIDE STALL economy".
    Since March，2020, with the liberalization of local policies, the "ROAD-SIDE STALL economy" has become a new driving force of economic recovery, driving up employment on the one hand and consumption on the other. There is also a successful demonstration effect of providing 80,000 jobs in two months after Chengdu（Sichuan Province,China）took the lead in restoring the stall economy. For a while, the ROAD-SIDE STALL economyreturned to public view and became a hot topic.
    现在越来越多的人关注到了“地摊经济”，并对加入地摊行业跃跃欲试，如果你是单打独斗当然不会有太多担忧，但是如果几个志同道合的人一起合伙经营，你应当注意合伙关系可能遇到的法律问题纠纷。
合伙关系常见的争议纠纷主要有出资纠纷、经营权纠纷、知情权纠纷、退伙纠纷等。笔者根据相关法律规定及实务案例，针对上述争议纠纷点，提出如下预防建议可供大家参考。
Now more and more people are concerned about the "ROAD-SIDE STALL economy" and are eager to join the industry. Of course, you won't have too much worry if you fight alone, but if several like-minded people work together, you should pay attention to the legal disputes that may be encountered in the partnership.
The common disputes in partnership include but not limited to investment, management right, right to know, withdrawal and so on. According to the relevant legal provisions and practical cases, in view of the above disputes, the author puts forward the following preventive suggestions for your reference.
（一）出资纠纷的预防建议
无论哪一种出资方式，首先是要求合伙人之间对于出资方式及价值的确认，避免在经营期间或合伙关系终止时一方对出资价值提出质疑引发矛盾。
1、如果采取货币出资的方式，出资一方应当要求另一方出具收到出资的证明，如某年某月某日收到XXX以转账方式出资XXX元等。
2、如果采取实物出资的方式，合伙人应当共同对实物价值进行协商或共同委托第三方资产评估机构估值，共同确认实物出资的价值。同时，应当注意实物出资的交付时间，包括风险转移时间和所有权（或使用权）转移时间等。
3、如果采取劳务出资的方式，应当在在合伙协议中明确如何评估一方劳务价值。
（二）经营权纠纷的预防建议
无论是采取何种形式的合伙经营模式，在合伙经营中，不建议将全部经营权交由其他合伙人。如果一方合伙人没有对另一方的经营行为进行约束，导致在整个合作期间出现对销售收入的不确定、对经营支出真实性的不确定，最后在分配剩余财产时矛盾激化。再回过头，已悔之晚矣。
为避免或减少这个风险的发生，笔者建议在合伙关系确立时，应先考虑好整个经营模式中所有可能出现的风险点，从而建立预控制方案。如销售环节，销售凭证的设计、开具、存档、保管等，销售收入的收款账号，在协议中可否明确至某个账户、银行、账号，或者某一个合伙人开设的专用微信账户、支付宝账户等。
（三）知情权纠纷的预防建议
针对不参与实际经营一方的合伙人来讲，为了保证自己的知情权，可以通过协议明确负责实际经营的合伙人有义务向不参与实际经营的合伙人披露的项目、数据、时间、方式，主张知情权的相关证明等。
从负责实际经营的合伙人角度来讲，也应当注意控制已履行披露义务的风险，负责实际经营的合伙人应当注意保存已尽披露义务的途径、内容、另一方合伙人的书面确认文件等。
（四）退伙纠纷的预防建议
随着经营过程的变化，也许双方合伙经营的基础也会出现变化，后续就会面临退伙的情形，为保障可退，如何退，在合伙协议中应当明确退伙条件，如提前退出的利润补偿机制等。
在退伙机制的设定时，应当注意区分，有过错退伙和无过错退伙的不同标准。如无过错退伙，是否可以享受未分配的红利，如有过错退伙，是否有权享受未分配红利等。
退伙时的资产价值如何评估，应当在协议中明确。
退伙后发生的，在退伙前未发现的债务处理办法都可以在协议中约定解决路径。
（一）Prevention suggestion of INVESTMENT
No matter which kind of INVESTMENT, the first thing is to require the partners to confirm the way and value of the INVESTMENT, so as to avoid the contradiction caused by one party questioning the value of the  INVESTMENT during the period of operation or when the partnership is terminated.
If the INVESTMENT is made in currency, the investor shall require the other party to issue a certificate of receipt of the INVESTMENT, such as receiving XXX to invest XXX yuan by transfer on a certain day in a certain year.
If the way of INVESTMENT in kindis adopted, the partners shall jointly negotiate the value of the object or jointly entrust a third-party asset appraisal institution to value it and jointly confirm the value of the contribution in kind. At the same time, attention should be paid to the delivery time of in-kind contribution, including risk transfer time and ownership (or use right) transfer time.
If the way of labor service investment is adopted, it should be clear in the partnership agreement how to evaluate the value of one party's labor services.
（一）Prevention suggestion of INVESTMENT
No matter which kind of INVESTMENT, the first thing is to require the partners to confirm the way and value of the INVESTMENT, so as to avoid the contradiction caused by one party questioning the value of the  INVESTMENT during the period of operation or when the partnership is terminated.
If the INVESTMENT is made in currency, the investor shall require the other party to issue a certificate of receipt of the INVESTMENT, such as receiving XXX to invest XXX yuan by transfer on a certain day in a certain year.
If the way of INVESTMENT in kindis adopted, the partners shall jointly negotiate the value of the object or jointly entrust a third-party asset appraisal institution to value it and jointly confirm the value of the contribution in kind. At the same time, attention should be paid to the delivery time of in-kind contribution, including risk transfer time and ownership (or use right) transfer time.
If the way of labor service investment is adopted, it should be clear in the partnership agreement how to evaluate the value of one party's labor services.
（二）Suggestions on the Prevention of Management right dispute
No matter what form of partnership model is adopted, it is not recommended that all management rights be transferred to other partners in the partnership. If one partner does not restrict the business behavior of the other party, it leads to the uncertainty of sales income and the authenticity of operating expenditure during the whole cooperation period, and finally intensifies the contradiction in the distribution of the remaining property. Looking back, it's too late to repent.
In order to avoid or reduce this risk, the author suggests that when the partnership is established, we should first consider all the possible risk points in the whole business model, so as to establish a pre-control plan. For example, the sales link, the design, issuance, filing and safekeeping of sales vouchers, and the account number of the sales revenue can be specified to a certain account, bank or account in the agreement, or the special Wechat account or Alipay account opened by a partner.
（三）Suggestions on the Prevention of disputes over the right to know
For the partners who do not participate in the actual operation, in order to ensure their right to know, it can be made clear through the agreement that the partners responsible for the actual operation have the obligation to disclose the projects, data, time and methods to the partners who do not participate in the actual operation, the relevant proof of claiming the right to know, and so on.
From the point of view of the partner in charge of the actual operation, attention should also be paid to controlling the risk of fulfilling the disclosure obligation, and the partner in charge of the actual operation should pay attention to preserving the ways and contents of the obligation of disclosure and the written confirmation documents of the partner of the other party.
（四）Suggestions on the Prevention of withdrawal disputes
With the change of the business process, perhaps the basis of the partnership between the two parties will also change, and then they will face the situation of withdrawing from the partnership. in order to ensure that they can withdraw and how to withdraw, the conditions for withdrawal should be clearly defined in the partnership agreement, such as the profit compensation mechanism for early withdrawal.
In the establishment of the withdrawal mechanism, attention should be paid to the distinction between the different standards of withdrawal with fault and without fault. If you withdraw from the partnership without fault, whether you can enjoy the undistributed dividend, if you withdraw from the partnership without fault, whether you have the right to enjoy the undistributed dividend, etc.
How to evaluate the value of the assets at the time of withdrawal should be clearly defined in the agreement.
What happens after withdrawing from the partnership and the debt treatment that has not been found before withdrawing from the partnership can be agreed upon in the agreement.
    任何合同的签订、民事法律关系的建立，都是预先防范重于诉讼救济。前期的风控安排，不仅可以避免因合伙关系约定不明造成的信任危机，而且可以节约双方的诉讼成本，更重要的是维护双方在未来参与市场经济活动中的声誉。
    随着“地摊经济”的新时代经济体制下不同的商业模式出现，合伙关系亦将更加复杂，笔者建议无论是公民个人亦或是法人或非法人组织，在正式确立合伙关系之前通过外部专业的公司法律顾问团队提供系统的风险控制方案和持续、有效实施的建议。
Pre-prevention is more important than litigation relief in the signing of any contract and the establishment of civil legal relationship. The early risk control arrangement can not only avoid the trust crisis caused by the unclear partnership agreement, but also save the litigation costs of both parties, and more importantly, maintain the reputation of both parties in participating in market economy activities in the future.
With the emergence of different business models in the new era of "road-side stall economy", the partnership will become more complexed. The author suggests that whether it is a citizen or a legal person or an unincorporated organization, before the formal establishment of the partnership, provide systematic risk control plans and suggestions for continuous and effective implementation through the team of external professional corporate legal advisers.