Investment relationship nominally but borrowing and lending relationship in fact

基本案情：

     被告因资金周转困难，向原告提出借款30万元，并许诺事成后高额回报，在原告对其转账20万时又要求原告备注“投资”，原告转账后，被告不肯出具借条，却要求要与原告签订一份出资30万元的合伙投资协议，并告诉原告，这个比借条更有效果，原告没有多想就签了字，签订日期为2016年10月7日。不久原告又以现金借给被告10万元，被告在原告的坚持下出具了10万元的借条。一年有，原告向被告催要包括20万元在内的出借款项。被告20万元的投资期限三年，还有两年就到期了，亏损不需要原告承担，获利会按比例分给原告，双方于是就此订立了第二份投资协议。到期后，被告只还了有借条的款项2万元，对20万投资款以亏损为由拒不返还。原告起诉到法院，要求被告归还剩余款项28万元。

Basic case：

    The defendant borrowed 300 thousand yuan from the plaintiff in October 2016, he asked her to remarked investment when she remitted him through bank, after he received 200 thousand yuan, he wasn’t glad to write iou but persuaded her to sign a partnership investment agreement on October seventh 2016, therein she must invest 300 thousand yuan. Subsequently when she gave him 100 thousand yuan in cash, he still didn’t want to write iou and asserted that was included in the investment fund provided by her, finally he wrote the iou of 100 thousand yuan because of her insistence.

     A year later when she asked him to repay the 200 thousand yuan fund, he said the partnership investment agreement would be executed in two years and ensured that she didn’t assume any loss but could share the profit proportionally, she said let’s write the content into a new agreement, then they negotiated another partnership investment agreement. After the expiration of the agreement, he didn’t repay her any investment fund except 20 thousand yuan of iou. She brought a litigation against him for 280 thousand yuan in the basic court, after the court convicted him of repaying her 280 thousand yuan capital and relative interest, he appealed to the intermediate court, the appellate court affirmed the first trial verdict.

不利因素：

    1.原告与被告签订了投资协议，20万元很可能被认定为投资款。

    2.原告转账20万元是备注为“投资”，该部分款项的法律关系更有可能被认定为投资关系而不是借贷关系。

Unfavorable factors：

    1. After she lent him 200 thousand yuan, she negotiated a partnership agreement with him.

    2. When she remitted him 200 thousand yuan, she remarked investment in accordance with his suggestion.

抗辩思路：

     合伙合同是两个以上合伙人为了共同的事业目的，订立的共享利益、共担风险的协议。合伙法律关系最为核心的法律特征即合伙人共享利益、共担风险。在本案中，双方明确表示，被上诉人不参与经营，只参与利益分配，不承担风险，这已经不符合合伙法律关系的特征，却更符合民间借贷的特征。

Coping strategies：

    Because she wasn’t required to assume any risk according to the partnership investment agreement, the legal relationship between them wasn’t consistent with characteristic of the investment than borrowing and lending, there’s a borrowing and lending relationship between them in fact.

判决结果：

     20万的款项法院认为是借款而不是投资款，故判决被告返还原告28万元借款和相应的利息。

Judgement or consequence：

    The basic and intermediate courts all affirmed the 200 thousand yuan was loan rather than investment fund.