我国设立专门法律对公司、合伙企业的设立、经营、解散等一系列问题进行了规定,但仍然存在遗漏问题,如对未成立的公司的投资款返还问题并未作明确规定,导致司法实践中法院处理不一,缺乏法律依据的不当处理不但损害当事人合法权益而且增加当事人诉累。司法实践中此类问题不断出现,寻找法律依据,走出现实困境,这成为我们亟需解决的问题。本文通过现实案例引出问题,分析不同的审判观点与思路,以期从中发现更合适的解决问题之路径,并对现存问题提出自己的主张与建议。 China has set up special laws to regulate the establishment, operation and dissolution of corporations and partnerships. However, there are still some omissions. For example, the issue of the return on investment of unincorporated companies has not been clearly stipulated, leading to the failure of judicial practice Courts deal with different, lack of legal basis for improper treatment not only undermines the legitimate rights and interests of the parties but also increase the parties complain about tired. Such problems continue to emerge in judicial practice, looking for legal basis and going out of real predicament, which has become an issue that we urgently need to solve. In this paper, we draw out the problems through the real cases, analyze different opinions and ideas of the trial, in order to find a more suitable way to solve the problems and put forward our own proposals and suggestions on the existing problems.