【 Facts of the case 】

The court of first instance found that in October 2018, the plaintiff and the defendant each contributed 126,530 yuan to engage in housing agency affairs in the name of "Shell · Youming Jiaxiang Zhou Road Store" in the house. The parties have not entered into a written partnership agreement, and there are no other written contracts that clearly define the rights and obligations of the parties. After the two have been in partnership for a period of time, part of the house No. 118-2 will be subleased to the hair salon for use, the rent is 40,000 yuan per year, and the first lease period is from April 2019 to April 2020. In April 2019, the original and the defendant signed the "share withdrawal Agreement", which agreed: "Li Hongbiao and Sun Gang jointly operated the house located in the partnership, Sun Gang agreed that Li Hongbiao should withdraw due shares, withdrawal conditions, Li Hongbiao will get Sun Gang's deposit of 20,000 yuan and the rent of 118-2 small door for the first year, the rent will be paid according to the lessee's payment method." After signing the agreement, the plaintiff obtained a deposit of 20,000 yuan from the defendant, and the defendant paid 20,000 yuan to the plaintiff for a half-year rent of 118-2 houses. Thereafter, the defendant did not pay the plaintiff the rent of 20,000 yuan for the second half of the year. In March 2020, the Shell business supervision issued the "Notice of Punishment on the private delisting of Dalian Youming Home - Xiangzhou Road Store", which stated that from May to June 2019, the store owner Li Hongbiao and customers and owners privately traded the housing in the system, signed non-platform contracts, and charged 120,000 yuan of intermediary service fees, and gave the contract and delisted. In the trial, the original defendants all recognized that the "Shell · Youming Home Xiangzhou Road Store" located in the name of Dalian Zhonglian Housing Brokerage Co., Ltd. was established to join the credit deposit of 40,000 yuan, and the original defendants each contributed 20,000 yuan. In addition, Dalian Zhonglian Housing Brokerage Co., Ltd. was established on November 13, 2017, with the legal representative being Li Hongbiao and the shareholders being Li Hongbiao and Wang Haiyan.

【 Reason for judgment 】

The court held that Li Hongbiao and Sun Gang negotiated to jointly operate the housing agency business, and the two sides established a partnership for this purpose, and jointly and equally invested funds at the beginning of the partnership. After Li Hongbiao decided to withdraw from the partnership, the two sides reached a "withdrawal agreement", the name of the agreement is not accurate, but the real meaning is that after the partnership liquidation, Sun Gang agreed to pay Li Hongbiao 60,000 yuan return fee. This agreement shall be valid and binding upon both parties if the intention expressed is true and the content lawful. According to the agreement, Li Hongbiao received Sun Gang's deposit of 20,000 yuan and the first year's rent of 118-2 small gate, which was paid according to the lessee's payment method (paid every six months). After checking, Li Hongbiao has obtained a deposit of 20,000 yuan and the rent of the first half year of the 118-2 door head room, Sun Gang still owes Li Hongbiao the 118-2 door head room after the half year rent has reached the payment time, Sun Gang should pay according to the contract. Sun Gang refused to pay on the grounds that Li Hongbiao did not deliver the store's franchise procedures and credit deposit certificate for exercising the right of defense at the same time, and the lack of contract and legal basis. Because, according to Article 66 of the Contract Law of the People's Republic of China, the exercise of the right to simultaneously perform the defense should first be based on the same pair of contracts, but the share withdrawal Agreement involved in the case does not stipulate that the two parties bear the obligation to perform. The joining procedures and credit margin certificate for the delivery of the store advocated by Sun Gang are not the obligations of Li Hongbiao in the Share Withdrawal Agreement or the conditions attached to Li Hongbiao's obtaining the 60,000 yuan retirement fee. Therefore, Sun Gang's right of defense should not be supported, and the judgment of first instance should be corrected. Sun Gangru has evidence to prove that the two sides have reached an agreement on joining procedures and the transfer of credit margin vouchers, and can claim another case

Li Hongbiao did not ask Sun Gang to pay interest when he sued in the first instance, and his appeal for interest is an independent litigation claim that he added in the second instance, because the two sides could not reach a settlement.

【 Verdict 】

1. Revoke civil judgment No. 384 of Dalian Xigang District People's Court (2021) Liao 0203;

Sun Gang shall pay Li Hongbiao 20,000 Yuan within 10 days after this judgment takes effect.

If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the period of delayed performance shall be doubled in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China.

The first instance case acceptance fee of 300 yuan, the second instance case acceptance fee of 300 yuan, a total of 600 yuan, shall be borne by Sun Gang, the payment time is the same as above.