Effective Defense | After "seven trials", the prosecution was finally withdrawn, and Zhongcheng, Qingtai, Jinan, provided an "effective" defense for a job-related crime case.

On January 18, 2022, a duty crime case in which lawyer Wang Junjie of Zhongcheng Qingtai Jinan Institute served as a defender was withdrawn. The procuratorial organ decided to withdraw the prosecution against the defendant Wang on the grounds of insufficient evidence. The court discussed and made a decision by the trial committee, allowing the procuratorial organ to withdraw the prosecution against the defendant Wang. According to the relevant provisions of the Criminal Procedure Law and the Criminal Procedure Rules of the People's Procuratorate, for cases where the prosecution is withdrawn, the People's Procuratorate shall make a decision not to prosecute within 30 days after the prosecution is withdrawn; no further prosecution shall be carried out without new facts or new evidence. The litigation process of this case can be described as twists and turns. After seven trials by the court, all the litigation procedures set by the Criminal Procedure Law have been basically completed. This case occurred in 2018. After the investigation by a municipal supervisory committee was concluded, the procuratorial organ filed a public prosecution for the defendant Wang's crime of embezzlement; on June 29, 2018, the court of first instance ruled that Wang constituted the crime of embezzlement. After the sentence was pronounced, Wang refused to accept the appeal, and the procuratorial organ also protested. On December 7, 2018, the Intermediate Court of Second Instance ruled to reject the protest and appeal and uphold the original judgment. After the above judgment became legally effective, the defendant Wang filed a complaint, and the intermediate court that accepted the complaint rejected the complaint on March 27, 2019. On November 25, 2019, after the president of the intermediate people's court found that there was a mistake, the intermediate court decided to retry the case and ruled to send it back for retrial. The court of first instance retried the case and rendered a criminal judgment on November 12, 2020, after which the defendant, Wang, appealed against the judgment. On June 23, 2021, the Intermediate Court ruled to rescind the original sentence and send it back for retrial. The court of first instance retried the case in July of the same year. During the retrial, the procuratorial organ made a decision to change the prosecution on September 3 of the same year, reducing the criminal facts and amount of the defendant Wang's occupation, and finally withdrew the prosecution of all the criminal facts and amount of the defendant Wang on January 18, 2022 on the grounds of insufficient evidence. Zhongcheng Qingtai Jinan Institute was entrusted in November 2020 and July 2021 respectively to appoint lawyer Wang Junjie as the defender of the defendant Wang Mou in the second and retrial stages of the first instance. After intervening in this case, the defense lawyer carefully studied the file materials, carefully designed the defense plan, and actively performed the defense duties, and realized the effective defense of the case. The following defense experience can be shared or used for reference: full communication, in-depth reading, active investigation and evidence collection. -- Full communication There is no smooth road and shortcut to achieve effective defense, but full communication, in-depth marking and active investigation and evidence collection are called the "troika" leading to effective defense by the industry ". Effective communication includes communication with the parties, co-counsel and judicial officers. In this case, it was through many meetings with the defendant and his relatives that the defense lawyer had an in-depth understanding of the background and suspicious places of the case, thus obtaining evidence clues for applying for judicial organs to obtain evidence in the second instance stage. The active communication with the original defense lawyer in this case will help to make full use of and learn from the work results of the original defense lawyer, avoid duplication and avoid detours. The defense ideas and defense views of this case are formed on the basis of the defense opinions of the original trial lawyer.. Communication with judicial investigators helps them understand and agree with the defense point of view. After all, the lawyer's defense statement will only work if it is recognized and accepted by the court. Otherwise, it will only be a waste of text and a sigh. It is the active communication with the judge that enables them to initially understand and agree with the lawyer's defense point of view. -- In-depth marking Marking is the basic skill of criminal defense lawyers, and it is also the only way for lawyers to understand the case, find loopholes in the prosecution's evidence, and form defense ideas. In-depth marking is the premise and foundation of effective defense. Marking papers is a hard job, especially in the face of dozens of files in this case, the only hard work is self-knowledge. Marking is not a simple process of reading papers. It embodies professional knowledge, experience and wisdom and inspiration. It can be said that only to a certain extent and depth can we find its wonderful opportunity. After many rounds of marking the case, from rough to detailed to various kinds of evidence one by one, we finally found a key evidence affecting conviction and sentencing-a copy of the IOU. This evidence was in the file from the beginning of the case, but all the personnel ignored it and believed that it was not meaningful as an IOU consistent with other evidence and was auxiliary evidence, however, it is precisely this IOU that shows that the identity of the defendant Wang is the "handler" rather than the borrower (in the guilty verdict, the defendant Wang was found to be the borrower, and Wang also believed that he was responsible for repayment). The "appearance" of this evidence affected the evidence system of the whole case, which was an important reason for the procuratorial organ to think that the evidence in this case was insufficient to withdraw the prosecution. -- Active investigation and evidence collection Generally speaking, procedural defense is the best defense, and evidence defense is the most effective defense in practice. If there is new evidence that affects conviction and sentencing in a case, it means that it is only a matter of time and procedure to change the sentence. In this case, in addition to the "IOU" found in the original file, an evidence clue was also found, that is, the defendant claimed that the money collected from the villagers' shops along the street had been handed over to the land management department through bank transfer (several years have passed), but no record of bank transfer was found, and the land management department also denied receiving the relevant money. The defense lawyer repeatedly asked and even sternly questioned the defendant, hoping that the defendant could truthfully "explain" the whereabouts of the money, but the defendant tried his best to confirm that he had handed it over to the land management department through bank transfer. Where did the money go? The supervisory department retrieved the transfer records of all bank accounts under the defendant's name, but did not find the whereabouts of the money. Finally, based on the defendant's age (more than 50 years old), education (Senior high school), living environment (rural), etc., the defense lawyer inferred that if the defendant's statement is true, then the financial institution to which the transfer is based on the principle of convenience should be in a nearby village and town, and the financial institution should be a common financial institution in the village and town. Based on this criterion, the defense counsel then inferred that the institution to which it transferred the money was likely to be a rural credit union or a postal savings bank. However, the supervisory committees of these two financial institutions have investigated and there is no transfer record. Under what circumstances does the defendant think he has transferred the account but has no record of the transfer? One major possibility is the post office certificate of deposit!!! According to this inference and evidence clues, the defense lawyer submitted an application to the court for new evidence. Under the strong promotion of the presiding judge, the supervisory committee obtained the record of the defendant's handling of large deposit certificates during this period of time, and then obtained the record of a staff member of the land management department taking out the money on the deposit certificates several times. The truth was about to come out. The defendant handled the cash into a certificate of deposit and handed it to a staff member of the land management department. After a long time, he mistakenly believed that he had transferred it to a staff member. The money was finally taken by a staff member. What is even more surprising is that according to the relevant internal policies, the land management department does not charge any other fees except for the cost of the property certificate for the shops along the street in rural areas! At present, the staff member is under investigation for suspected duty crimes and perjury. Of course, the lawyer's defense point of view will only play a role if it is adopted and accepted by the court. The people's court and the people's procuratorate adhere to the principle of "taking facts as the basis and law as the criterion" and fairness and justice, which is the fundamental guarantee for the fair handling of the case.

2022-01-21

Leaders of Jinan Culture and Tourism Bureau visited Zhongcheng Qingtai Jinan Institute for exchange

On January 20, 2022, Director Liu Jianfeng of the Cultural Law Enforcement Detachment of Jinan Culture and Tourism Bureau, Deputy Director Shang Jie and Chief Liu Lin visited Zhongcheng Qingtai Jinan Institute for exchange. Cheng Shoufa, deputy director of Zhongcheng Qingtai Jinan Institute and director of Intellectual Property Center, warmly received the visiting leaders. Director Cheng Shoufa accompanied him to visit the office environment of the law firm, introduced the basic information of the law firm's various functional areas, performance honors, party building work, etc., and focused on the innovative measures of Zhongcheng Qingtai to promote party building in the party member activity room. In the work exchange, the leaders of Jinan Culture and Tourism Bureau expressed their attitude of supporting the rights protection of rights holders in the field of intellectual property and their determination to crack down on illegal activities in the field of culture according to law; Zhongcheng Qingtai law firm will maintain long-term effective communication and exchange in relevant fields, and provide all-round legal service support in the identification of intellectual property infringement and the characterization of illegal acts in the field of culture.

2022-01-21

Real estate perspective: a brief analysis of the conditions for the termination of the cooperative development of real estate contract.

2022-01-20

Real estate perspective: the construction project price priority compensation rules analysis.

1. Introduction In the process of building the socialist rule of law with Chinese characteristics, ensuring the right to survival and maintaining the stability and unity of the rule of law society are the basic requirements for legal practitioners to adhere to the unity of political, social and legal effects. The legal affairs system in the field of construction engineering, especially in the field of real estate construction engineering, is complicated, involving the conflict and protection of the legal rights of real estate developers, construction units, construction workers, actual builders, commercial banks, home buyers and other civil subjects, covering the concept of multi-dimensional rights such as the right to survival and development. It is of great significance to properly deal with the rights of relevant civil subjects in accordance with the law, clarify and determine the priority protection order of different civil rights, and give different civil subjects reasonable expectations of priority or inferior protection of their own rights from a legal point of view. it is of great significance to ensure the construction progress of real estate construction projects and promote the protection of the legitimate rights and interests of different civil subjects in the field of real estate construction projects and the degree of social trust. The construction contractor materializes his labor, materials, etc. into the construction of the project in the most direct way in exchange for the remuneration capital needed to protect his right to survival, and his rights based on the construction of the project should be protected in accordance with the law, and the protection should be limited. Based on the perspective of the priority compensation right of construction project price, this paper focuses on the analysis and summary of the main points of litigation practice on the priority compensation right of construction project price, in order to clarify the concept of rights and litigation practice tendency in the field of construction project and the priority compensation right of construction project price, and to promote the full understanding and effective exercise of the priority compensation right of construction project price by the right holders and relevant legal practitioners. The legal nature of the priority compensation right of the 2. construction project price. 1. Statutory rights that do not require registration Civil rights can be divided into legal rights and contractual rights based on the manner in which they are created and established. Based on the perspective of the current effective law, Article 807 of the the People's Republic of China Civil Code (the "Civil Code") is a legal provision on the right to priority compensation for the price of construction works. The right of priority compensation for the price of construction works is established by the Civil Code in the form expressly provided for by law, does not require a special agreement between the parties to the construction contract, does not require registration and publicity, and is a legal right. 2. Priority protection of rights Civil rights can be divided into priority rights and ordinary rights on the basis of whether protection is given priority or not. The Civil Code stipulates that the right holder of the construction project price shall give priority to the payment of the project discount or auction price, and gives the effect that the construction project price can be realized in priority over the ordinary right. 3. Typical contractual rights Civil contracts can be divided into typical contracts and atypical contracts based on whether the name is uniformly determined. The construction contract is a typical contract under the "Construction Contract" section of the Civil Code. The right to priority compensation for the construction project price occurs in the construction project contract and is a typical contract right. 4. from rights Civil rights can be divided into sovereign rights and subordinate rights based on the standard of master-subordinate relationship. The existence, determination and expiration of the claim for the construction project price is a prerequisite for the enjoyment and exercise of the right of priority compensation for the construction project price. If the claim for the price of the construction project is extinguished as a result of the completion of the performance, the priority right to be paid for the price of the construction project shall be extinguished. The priority right to be paid for the construction project price belongs to the subordinate right of the main right to claim the claim of the construction project price. 5. Non-security interests Based on the type of object of rights, civil rights can be divided into claims and property rights. The priority compensation right of the construction project price points to the price of the construction project and the project discount or auction price, which belongs to the property right, but does not belong to the legal mortgage, quality right or lien type of security right. In summary, the right to priority compensation for the construction price is a non-security interest that does not need to be registered as a statutory right of priority protection in a typical contract. 3. construction project price priority compensation right priority In the theory of civil law, due to the difference of the nature of the right, the legal protection effect of real right and creditor's right is different, and the real right takes precedence over the creditor's right. However, based on the consideration of public interest and other factors, there is a situation where claims take precedence over property rights. 1. Priority of demolition and resettlement The first paragraph of Article 7 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts" (referred to as the "Judicial Interpretation of Commercial Housing Sales Disputes") (Fa Shi [2003] No. 7) implemented on June 1, 2003 It is the priority of the demolition and resettlement person, also known as the source of legal basis for the priority of the special creditor's rights of the demolished person. The Judicial Interpretation of Commercial Housing Sale Disputes (Fa Shi [2020] No. 17) implemented on January 1, 2021 deleted the above provisions. Based on the principle that the law is not retroactive, the priority of the demolition and resettlement of the demolished person that has effectively existed before the implementation of the new judicial interpretation should not be denied, and its effectiveness should continue to be protected by law. The right to compensation for demolition and resettlement enjoyed by the demolished person in accordance with the law is the transformation of the property rights of the demolished. The demolition compensation and resettlement agreement is a reciprocal contract, which essentially means that the demolisher exchanges a specific house for the demolished house of the demolished person, and the house is exchanged for the house to guarantee the basic living and living needs of the demolished person. A clear agreement on the specific location and use of the compensation and resettlement house is a prerequisite for the establishment of the priority of demolition and resettlement. The priority of demolition and resettlement takes precedence over the rights of consumers of commercial housing and the priority of compensation for the price of construction projects. 2. The rights of consumers of commercial housing Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court, Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Prices (hereinafter referred to as "Reply on the Priority of Compensation for Construction Project Prices", abolished on January 1, 2021) (Fa Shi [2002] No. 16), and the Executive Office of the Supreme People's Court on<最高人民法院关于建设工程价款优先受偿权问题的批复>The reply on how to understand the provisions on giving priority to the protection of consumers' rights ([2005] Zhihe Zi No. 16) and the reply of the Supreme People's Court to the request for instructions from the Shandong Provincial Higher People's Court on the dispute over the housing sales contract of Jinan Caishi Villa ((2014) Zhihe Zi No. 23 and 24) are the sources of legal basis for the rights of commercial housing consumers. The term "rights of commercial housing consumers" comes from the "Minutes of the National Court Civil and Commercial Trial Work Conference" (referred to as the "Minutes of the Nine People's Conference") "126. [The relationship between the rights of commercial housing consumers and mortgage rights]", also known as consumer-type The priority of home buyers. According to the above provisions, buyers who have signed a purchase contract, used for the sole residential use, and have paid more than half of the contract price, their right to claim the delivery of the house, the right to return the purchase price in the case of the house has not been completed, etc., is protected by law, and takes precedence over the contractor's right to receive priority compensation for the construction project price. 3. Security interests In accordance with the provisions of the fourth division of the Civil Code, "Security interests" and the principle of property law, security interests include only mortgages, pledges and liens. The right of priority compensation of the construction project price has the value of security for the realization of the claim of the construction project price, but it does not belong to the category of security right, which can be referred to, but the provisions of the civil code security right can not be generalized. For example, the establishment of the right of priority compensation for the construction project price is not conditional on the delivery, lien or registration of the right of priority compensation for the construction project price. According to the provisions of Article 36 of the Interpretation (I) of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts (hereinafter referred to as "Judicial Interpretation I of Construction Disputes") (Fa Shi [2020] No. 25), the priority of compensation for the construction project price takes precedence over the mortgage. If there is not only the contractor's right of priority compensation for the construction price of the same construction project, but also the mortgage right of the construction project of the commercial bank, the priority compensation right of the construction project price takes precedence over the mortgage right. 4. Employee claims The first paragraph of Article 113 of the the People's Republic of China Enterprise Bankruptcy Law (the "Bankruptcy Law") is the main source of legal basis for employee claims. In the field of bankruptcy reorganization of market entities, employee claims include the wages and medical, disability subsidies, and pension expenses owed by the bankrupt, and the basic pension insurance and basic medical insurance expenses that should be transferred to the employee's personal account, as well as laws, The compensation that administrative regulations stipulate that it should be paid to employees also includes the pre-acceptance of employee fund-raising and the third-party advance of non-wage protection funds after acceptance. After acceptance, the third party of the wage protection fund advances the employee's claim, which is the subordinate employee's claim, and after the employee's claim is settled according to the property distribution plan, it takes precedence over the ordinary claim. Correspondingly, non-employee fund-raising before acceptance and third-party advances to employees before acceptance are ordinary claims. Post-acceptance of employee fund-raising and post-acceptance of non-employee fund-raising are common debts. According to the Supreme People's Court's Application.<中华人民共和国企业破产法>Article 3, paragraph 2, of the (II) on Certain Issues provides that security interests take precedence over employee claims and employee claims take precedence over ordinary claims. 5. Tax Priority Articles 45 and 46 of the the People's Republic of China Law on the Administration of Tax Collection and Article 113, paragraph 1, paragraph 2, of the Bankruptcy Law are the source of the legal basis for tax priority. Because taxes take precedence over unsecured claims, I .e. ordinary claims, tax claims have the legal effect of taking precedence over ordinary claims to be paid off, so they are called tax priority. In general, mortgages, pledges, and liens take precedence over tax priority, I .e., security interests take precedence over tax priority. Based on the information disclosure measures such as the taxpayer's tax arrears announcement system, the taxpayer's obligation to explain the tax arrears, and the security interest holder's right to investigate the tax arrears, the security interest holder should be aware of the defects in the rights of the security when accepting the security provided by the debtor, and can properly exclude the good faith of the security interest holder without knowledge. Therefore, if the tax priority occurs before the security right, the tax priority takes precedence over the security right. In accordance with Article 8 of the the People's Republic of China Enterprise income tax Law and Articles 34 and 35 of the regulations on the implementation of the the People's Republic of China Enterprise income tax Law, enterprises are allowed to deduct wages and salaries, basic social insurance premiums and housing accumulation funds when calculating taxable income. The deduction covers the claims of employees in insolvency proceedings. After deducting the employee's claim, the enterprise calculates the tax payable, forming a tax claim that takes precedence over ordinary claims. Therefore, the employee's claim takes precedence over the tax priority. 6. Ordinary claims According to the provisions of Article 118 of the Civil Code and the principle of equality of creditor's rights, the legal effect of creditor's rights formed by contract, infringement, etc. shall not be divided into advantages and disadvantages due to the order of establishment, and shall be equally protected by law. There is no distinction between the common claims that coexist, and there is no distinction between priority or inferiority, and the various priorities are unified. 7. Defects in rights (1) Lease According to the provisions of Article 725 and Paragraph 1 of Article 726 of the Civil Code, Article 14 and Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in Hearing Cases of Disputes over Urban Housing Lease Contracts (Fa Shi [2020] No. 17), and Article 28 of the Provisions of the Supreme People's Court on Auction and Sale of Property in Civil Execution by People's Courts (hereinafter referred to as "Provisions on Auction and Sale and Sale"), the lease cannot prevent the realization of the mortgage that has been established before the lease, and the people's court shall remove the lease that has an impact on the realization of the mortgage, and the lessee shall have the right of priority purchase under the same conditions. Because the right of priority compensation for the construction project price takes precedence over the security right, the lease on the construction project cannot prevent the realization of the right of priority compensation for the construction project price. (2) Preservation According to the Supreme People's Court's Application.<中华人民共和国民事诉讼法>According to Article 157 of the Interpretation and Article 28 of the Provisions on Auction and Sale of Property, the preservation of property shall not affect the realization of the real right for security, and the proceeds from the auction of property shall give priority to the settlement of the claims of the security interest holder and other priority recipients. Because the priority compensation right of the construction project price takes precedence over the security right, the property preservation measures of the construction project shall not affect the realization of the priority compensation right of the construction project price. (3) Transfer With reference to Article 206 of the Civil Code, the Supreme People's Court on the Application<中华人民共和国民法典>Article 43, paragraph 2, of the Interpretation of the Security System (the "Judicial Interpretation of the Security System") stipulates that the mortgaged property may be transferred during the mortgage period, and the mortgage right shall not be affected after the transfer, unless the registration publicity prohibits or restricts the transfer of the mortgaged property. The priority compensation right of the construction project price has the function of guarantee, and the effect of the transfer of the construction project on the priority compensation right of the construction project price may be determined by reference to the above-mentioned provisions. From the time when the contractor begins to fulfill its construction obligations, materialize the labor of construction workers and the value of engineering equipment and materials into the construction project, and the contractor shall fulfill its obligation to pay the price of the construction project, the construction project shall provide the legal guarantee function for the contractor's claim for the construction project price. The right of priority compensation for the construction project price is a legal right that does not require registration and publicity, and the contractor has the right to transfer the construction project in accordance with the law, and if the construction project is transferred, the right of priority compensation for the construction project price is not affected, and the contractor may claim the right of priority compensation for the construction project price from the transferee in accordance with the law. 8. Agreed waiver or limitation According to the provisions of Article 42 of the judicial interpretation of the construction project dispute, the right of priority compensation for the construction project price is the right enjoyed by the construction project contractor in accordance with the law. According to the principle of autonomy, the contractor shall have the right to dispose of his rights according to his own will and decide to waive or restrict the exercise of the right of priority compensation for the price of the construction project. According to the principle of good faith and credit, the legislative purpose of the priority compensation right of construction project price is to protect the right of survival of construction workers, and the contractor shall be bound by the legislative purpose of the priority compensation right of the construction project price. The contractor shall not waive or restrict the exercise of the right of priority compensation for the construction project price in violation of the purpose of the legislation, for example, by promising to the contractor to waive the right of priority compensation for the construction project price after the completion of the payment of the construction worker's remuneration, which is valid in accordance with the law because it does not harm the interests of the construction worker. The contractor abandons or restricts the exercise of the right of priority compensation for the construction project price against the legislative purpose, such as unilaterally promising to the contractor or maliciously colluding with the contractor to waive the right of priority compensation for the construction project price when the contractor is under pressure from the loan bank when applying for the mortgage loan for the construction project, requiring the contractor to issue a commitment to waive the right of priority compensation for the construction project price, it is invalid according to law because it seriously damages the interests of construction workers. 4. Construction project price priority compensation right subject. </中华人民共和国民法典></中华人民共和国民事诉讼法></中华人民共和国企业破产法></最高人民法院关于建设工程价款优先受偿权问题的批复>

2022-01-15

The fine industry is firmly committed to the foundation, hard work and forge ahead again | Zhongcheng Qingtai Jinan Regional Work Summary Commendation Meeting Held Ceremoniously in 2021

On January 15, 2022, the 2021 work summary commendation meeting of Zhongcheng Qingtai Jinan region was held ceremoniously. The theme of the meeting was "to make a firm foundation for the fine industry, to forge ahead and to start again". It comprehensively summarized the achievements of 2021, commended the advanced and deployed the 2022 work. Due to the need for epidemic prevention and control, the meeting adopted a combination of online and offline, with members of the Party Committee, Management Committee and award-winning representatives attending the meeting on-site in the large conference room in the office area of China Resources Building, and other colleagues participating online through online video. Lawyer Yao Huming, chairman of the board of supervisors of Zhongcheng Qingtai General Office and deputy director of Jinan Institute Management Committee, presided over the meeting. Annual Report Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai Jinan Institute, made a report on "Summary of Work in 2021 and Key Points of Work in 2022. Director Geng pointed out that in 2021, the law firm will stride into a new five-year journey, with the mission of opening a new stage of development of the law firm, in order to create a national mainstream direction, strive to adapt to the new situation of economic and social development and the legal service market, actively overcome various challenges and difficulties, and act pragmatically and seek progress in stability in accordance with the main points of work for the whole year and the work plan at the beginning of the beginning of the year, excellent results have been achieved in law firm party building, business income generation, market expansion, professional development, law firm management, talent training, social responsibility, and brand influence. At the same time, Director Geng pointed out the problems and deficiencies of the work in 2021, analyzed the challenges and opportunities faced by the development of the law firm, and put forward the development goals and development measures of the law firm in 2022, in combination with the new situation of economic and social development and the new trend of the development of the law firm. He encouraged all colleagues to maintain their original intention, strengthen their confidence, establish their ambition, build their ingenuity, take their responsibilities and implement in place, start a new journey and reach a new peak, to achieve sustained, stable and healthy development of the law firm. Recognition of excellence The meeting commended outstanding individuals and teams in 2021. Yuan Jian, deputy director of Zhongcheng Qingtai Law Firm, read out the commendation documents. Han Honggang, member of the two committees and director of the general office, and Dong Yiming, director of the Beijing Institute, presented awards to the winners. The five winners spoke separately. General Assembly summary At the end of the meeting, Han Honggang, director of Zhongcheng Qingtai General Office, delivered a speech. Director Han congratulated Jinan on its achievements in 2021, affirmed Jinan's outstanding contribution to the development of Zhongcheng Qingtai Institute, reported on the work of Jinan Institute in 2021, such as business exchange, use of Guangren Fund, joint meeting of Party building, etc., and proposed the next work plan in the fields of knowledge management and legal product research and development. It is hoped that Jinan Institute will continue to play a leading role, move in a unified pace and action with all branches, firmly focus on the goal of promoting the integration of law firm development and building a mainstream national institute, and welcome 2022, which is full of expectations, with high morale. The fine industry is firmly on the foundation, and we will set out again. Farewell to the wonderful and infinite 2021 and welcome the 2022 full of hope. All Chengqing Thai people will continue to move forward with pride, stick to the original intention of the people's lawyers, keep in mind the mission, and use a high sense of social responsibility and solid professional knowledge to provide for all sectors of society. More professional, refined and efficient legal services, to be participants, practitioners, strivers, and contributors of the rule of law in China.

2022-01-15

J & T Capital Watch... the nature of the difference and the internal resolution procedures to be performed.

There are different views on the nature of the margin make-up in the academic circles and judicial practice, the author through consulting the relevant literature and judicial cases, found that the nature of the margin make-up and the internal resolution procedures that should be performed still have room for discussion, this paper intends to analyze and discuss the above issues from the perspective of case analysis. I. Nature of a deficiency make-up agreement The nature of the differential make-up agreement is currently divided into three main views in judicial practice, as follows: (I) promise to say A guarantee contract is a contract in which the guarantor and the creditor agree that when the debtor fails to perform the debt due or the circumstances agreed upon by the parties occur, the guarantor is required to perform the debt or assume responsibility. The guarantee contract is the subordinate contract of the main creditor's debt contract. If the main creditor's rights and debts contract is invalid, the guarantee contract is invalid, unless otherwise provided by law. It is common in judicial practice to characterize the "Deficiency Make-up Agreement" as a guarantee contract, and it is also one of the views held by many scholars. Case: dispute over guarantee contract between huarong international trust co., ltd. and kaidi ecological environment technology co., ltd. [(2019) supreme law civil judgment no 560]] Referee's point of view: Whether it is from the core provisions of the "Deficiency Make-up Contract" for the interpretation of the text, or from the interpretation of the contract system, the nature of the contract is in line with the legal characteristics of the guarantee contract. (II) Debt Joins Say According to the general principle of civil law, debt accession means that a third party joins the existing debt relationship, and in terms of the debt itself, the debtor is jointly and severally liable to the creditor, and its legal effect is equivalent to the debt accession creating an independent debt for itself. In contrast to a guarantee, the debt of the debtor is heavier than the debt of the guarantor. Case: Dispute over Securities Trading Contract between Zou Chenghui and Huaxin International Trust Co., Ltd. [(2021) Jingminzong No. 97]] Referee's view: The nature of Zou Chenghui's commitment to make up the difference to Huaxin Trust Company is a debt addition, not a guarantee or guarantee, let alone a subordinate attribute. (III) independent contract says There is also a view that the obligation to make up the difference as a credit enhancement measure, the "difference to make up the agreement" should be an independent contract, not the company to provide external guarantees. Case: Contract Dispute between Anhui Zhongan Financial Asset Management Co., Ltd. and Gansu Gangtai Holding (Group) Co., Ltd. [(2020) Wan 01 Min Chu No. 639]] Referee's point of view: The "Difference Make-up Agreement" in this case is an independent contract, which should be distinguished from the "Guarantee Contract", and the obligation to make up the difference stipulated in the "Debt Restructuring Difference Make-up Contract" is the direct compensation obligation of the difference-making person to the creditor under certain circumstances. To sum up the three cases, the difference in different situations is of a different legal nature. Although the current law of China does not clearly define the nature of the difference make-up agreement, but the Minutes of the National Court Civil and Commercial Trial Work Conference 91. [Nature of the letter-adding document] and the Supreme People's Court on the application of<中华人民共和国民法典>Article 36 of the Interpretation on the Guarantee System (that is, the third party provides similar commitment documents such as balance compensation and liquidity support to creditors as credit enhancement measures, which means to provide guarantee. If the creditor requests the third party to bear the responsibility, the people's court shall determine whether it is guarantee or debt joining according to law, and if it is difficult to determine whether it is guarantee or debt joining, the people's court shall determine it as guarantee. When the commitment document provided by the third party to the creditor does not conform to the guarantee and does not conform to the debt accession, the obligations and responsibilities of the third party to be performed are determined on the basis of the commitment document) and so on. In practice, the company should make a difference-making agreement in accordance with the law, taking into account the true purpose of the agreement and the true intention of the parties. II. Internal company resolution procedures to be performed to make up the difference At present, the laws and regulations have not yet made clear provisions on the specific procedures to be performed for the difference make-up matters, and this paper intends to make a preliminary discussion on the internal resolution procedures to be performed for the difference make-up based on the different nature of the difference make-up. The internal resolution procedure to be performed (I) the shortfall of a guarantee nature. Case: Dispute over Financial Loan Contract between Chongqing Jieer Medical Equipment Co., Ltd. and Chongqing Jiulongpo Sub-branch of Industrial and Commercial Bank of China [(2018) Civil Judgment No. 165 of Chongqing Minchu]] Judging point of view: Article 16 of the company law stipulates that "if a company invests in other enterprises or provides guarantee for others, it shall be decided by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association; if there is a limit on the total amount of investment or guarantee and the amount of individual investment or guarantee in the articles of association, it shall not exceed the prescribed limit. Where a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders". In this case, in accordance with the provisions of the articles of association of the Company (the obligor of the difference payment) when the "Letter of Commitment to Make up the Difference" was issued on November 20, 2017, a decision on the Company's investment in other enterprises or the provision of guarantees for others shall be made with the unanimous consent of the Board of Directors in advance, otherwise the decision shall be invalid. Jieer Company and ICBC Jiulongpo Sub-branch (creditors) both recognize that the Letter of Commitment for Deficiency Compensation is a guarantee. However, ICBC Jiulongpo Sub-branch has not submitted evidence to prove that the issuance of the Letter of Commitment for Deficiency Compensation has been unanimously approved by the shareholders and the board of directors of Jieer Company. Therefore, the creditor's claim that the obligor for deficiency compensation shall bear joint and several guarantees is not supported. Lawyer's Summary: As far as the difference compensation agreement with the nature of guarantee is concerned, the relevant cases (for example, the Supreme People's Court (2019) Supreme Law Civil Judgment No. 560, (2019) Supreme Law Civil Judgment No. 877) have been clearly defined, and the resolution procedures of the board of directors or the shareholders' meeting shall be carried out in accordance with the Company Law and the articles of association of the company. (II) internal resolution procedures to be performed to make up the difference in the nature of debt accession. Case: Dispute over Financial Loan Contract between Beijing Branch of China CITIC Bank Co., Ltd. and Letv Information Technology (Beijing) Co., Ltd. [(2019) Supreme Law No. 1438]] Judgment View: The Supreme People's Court held that although LeTV's act of joining its shareholder LeTV Holdings's debt is not an act of providing guarantees for shareholders, the company's commitment to the debt to join this direct responsibility should be resolved by the general meeting of shareholders. If the company's participation in shareholder debt is not regulated, it will undoubtedly indulge the parties to circumvent the provisions of Article 16 of the Company Law by joining the debt, making the bar useless. LeTV's intention to join the debt of its shareholder LeTV Holdings has not been passed without a resolution of the general meeting of shareholders or a resolution of the board of directors, which violates the relevant provisions of the "Company Law. As a listed company, LeTV's articles of association are publicized to the public. The articles of association have clear provisions on the company's external guarantees, resolutions of the general meeting of shareholders, and the powers of the board of directors. According to the "Company Law" and the regulations of the industry regulatory authorities, China CITIC Bank should do the necessary duty of care for LeTV's debt joining behavior. Compared with the guarantee liability, the debt borne by the joiner is heavier than that of the guarantor, so the debt joining should comply with the resolution procedure of the general meeting of shareholders or the board of directors stipulated in Article 16 of the Company Law. As a result, it is determined that CITIC Bank is at fault and cannot be identified as a bona fide counterpart. The letter issued by LeTV to CITIC Bank was deemed invalid due to failure to perform the procedures of the shareholders meeting or the board of directors resolution, and it is not binding on LeTV. Lawyer's Summary: As far as the difference compensation agreement with the nature of debt accession is concerned, on the one hand, the liability for debt accession is obviously heavier than that for guarantee contract. At this time, if the agreement is not subject to the internal resolution procedure of the company, according to the legal principle of "light to light", the difference compensation agreement is likely to be deemed invalid. On the other hand, article 23 of the Ninth Minute makes it clear: "The legal representative agrees with the debtor in the name of the company to join the debt and notifies the creditor or expresses to the creditor his willingness to join the debt, and the validity of the agreement is dealt with in accordance with the relevant rules of this summary on the company's provision of security for others." That is, debt accession must be based on the resolution of the company's shareholders (general) meeting, board of directors and other corporate organs as the basis and source of authorization. Therefore, the shortfall that is deemed to be in the nature of debt accession shall be subject to the resolution procedures of the board of directors or shareholders' meeting in accordance with the Company Law and the Articles of Association of the Company. (III) internal resolution procedures to be performed for the shortfall of an independent contract. Case: Contract Dispute between Anhui Zhongan Financial Asset Management Co., Ltd. and Gansu Gangtai Holding (Group) Co., Ltd. [(2020) Wan 01 Min Chu No. 639]] Judgment point of view: the court held that judging from the contents of the contract signed on the same day, the "debt restructuring balance compensation contract" is not the same as the "debt restructuring guarantee contract". The "debt restructuring balance compensation contract" is an independent contract different from the guarantee contract, and the internal examination and approval decision-making procedures for providing external guarantee stipulated in Article 16 of the the People's Republic of China Company Law and the articles of association of Gangtai Holding Company are not of course applicable. The Deficiency Agreement in this case is an independent contract and should be distinguished from the Guarantee Contract. The obligation to make up the difference stipulated in the "Debt Restructuring Balance Making up Contract" is the obligation of the balance making up the difference to the creditor under certain circumstances. The obligation to make up the difference cannot be generalized to the act of providing external guarantees, and the company cannot provide guarantees for others. The relevant provisions of the resolution of the board of directors or the shareholders' meeting or the shareholders' meeting. The debtor's resolution to make up the shortfall should be valid as an independent contract rather than a guarantee contract, even if it has not been subject to an internal decision-making process. Lawyer's Summary: As far as the difference-making agreement is considered as an independent contract is concerned, there are different judgments in judicial practice, and the author tends to think that whether the difference-making agreement with an independent contract needs to perform the internal resolution procedure of the company needs to be judged in combination with the specific content of the difference-making agreement. Three this article summary and suggestion Based on the above analysis, the author recommends the following: 1. In practice, based on the principle of civil law autonomy, judicial cases generally affirm the validity of the obligation to make up the difference. However, in order to avoid disputes, the parties should have a clear understanding of the purpose to be achieved by the difference replenishment document when designing the difference replenishment document, whether it is intended to be used as a guarantee, debt addition or other form of agreement, it is recommended that the relevant agreement be clearly defined around the purpose to be achieved. 2. The difference compensation agreement with the nature of guarantee or debt accession shall perform the internal resolution procedures of the company in accordance with the provisions of Article 16 of the Company Law and the articles of association of the company. There is some dispute as to whether the difference compensation agreement identified as an independent contract requires a corresponding company resolution. For prudent consideration, the author suggests that creditors should also simultaneously review whether the subject of the difference compensation obligation has fulfilled the internal resolution procedure of the company. In particular, as far as listed companies are concerned, in accordance with the Securities Law, the notice on regulating the external guarantee behavior of listed companies (CSRC [2005] No. 120), the measures for the Administration of Information Disclosure of listed companies (revised in 2021) and the Supreme people's Court on the application<中华人民共和国民法典>有关担保制度的解释》规定，上市公司提供差额补足，除须经有权机构的决议程序外，还需要经过公告信息披露程序，否则差额补足协议也存在被认定为无效的法律风险。  </中华人民共和国民法典></中华人民共和国民法典>

2022-01-14

Administrative Litigation Vision (III) | Administrative Litigation Plaintiff Qualification

Foreword The plaintiff of administrative litigation refers to the citizens, legal persons and other organizations who are dissatisfied with the administrative act and bring a lawsuit to the people's court in their own name in accordance with the provisions of the Administrative Procedure Law. The plaintiff qualification of administrative litigation is the legal ability of citizens, legal persons or other organizations to bring administrative litigation to the court and become the plaintiff of administrative litigation. It is related to who can bring administrative litigation and start the judicial review procedure of administrative action. The plaintiff qualification is another important issue after the scope and jurisdiction of administrative litigation, which is of great significance to the theoretical research and judicial practice of administrative litigation. The Concept and Nature of Plaintiff Qualification in 1. Administrative Litigation The qualification of the plaintiff in administrative litigation refers to the qualification of the plaintiff to file an administrative lawsuit, also known as the plaintiff's qualification, which is a necessary element for citizens, legal persons and other organizations to request the court to protect their legitimate rights and interests infringed by administrative acts. The scope of the plaintiff's qualification determines the scope of the subject under judicial protection. For the prosecutor, it determines who can request the court to protect their legitimate rights and interests in their own name. For the court, it is the court to accept the prosecution. The basis determines which people can be accepted by the court. The plaintiff qualification of administrative litigation is the basis of the administrative litigation system, it is an issue of administrative litigation procedure, which does not involve substantive issues. The recognition of the plaintiff's qualification is not the same as the recognition of the plaintiff's right to win the case. Whether the plaintiff is qualified or not directly determines whether the case can enter the litigation procedure. If the plaintiff is not qualified, the court directly decides not to accept the case or dismiss the lawsuit after accepting it. The plaintiff in administrative litigation is one of the participants in administrative litigation, and not all citizens, legal persons or other organizations can bring a lawsuit against the administrative act of the administrative organ. The qualification of plaintiff in administrative litigation is a key issue related to who is qualified to initiate the judicial review of administrative actions. Its essence is how to deal with the relationship between citizenship and administrative power, judicial power and administrative power. The establishment of the qualification of the plaintiff in administrative litigation should not be too wide or too narrow. It is necessary to balance the relationship between protecting the legitimate rights and interests of the relative person, preventing the abuse of administrative litigation procedures, and avoiding hindering administrative efficiency. An accurate definition of the plaintiff qualification in administrative litigation is conducive to protecting the legitimate rights and interests of citizens and supervising the administration of administrative organs in accordance with the law. Contents of the Plaintiff Qualification in 2. Administrative Litigation The first paragraph of Article 25 of the "Administrative Litigation Law" stipulates: "The counterpart of an administrative act and other citizens, legal persons or other organizations that have an interest in the administrative act have the right to file a lawsuit." This is the general provision of the law of our country to the subject with the qualification of plaintiff in administrative litigation. According to this provision, two conditions must be met for the plaintiff qualification of administrative litigation, one is that the subject should be the administrative counterpart or other citizens, legal persons or other organizations, and the other is that it has an interest in the administrative act. Therefore, to have the qualification of the plaintiff subject of administrative litigation, the following conditions need to be met at the same time: (I) have the ability to litigate The ability of litigation rights, also known as the ability of the parties or the ability to participate in litigation, refers to the ability of the parties to obtain the legal status of the plaintiff or defendant in the litigation, here refers to the ability to obtain the legal status of the plaintiff. As far as the plaintiff in administrative litigation is concerned, the subjects with the ability to litigate can only be citizens, legal persons and other organizations. Under special circumstances, the law also provides rights remedies for the deceased and terminated legal persons and other organizations that no longer have the ability to rights. The second and third paragraphs of Article 25 of the "Administrative Procedure Law" stipulate that if a citizen who has the right to bring a lawsuit dies, his close relatives may bring a lawsuit. If the legal person or other organization that has the right to bring a lawsuit terminates, the legal person or other organization that has the right to inherit it may bring a lawsuit. It should be noted that administrative litigation is not a simple type of litigation of "people suing officials". Administrative agencies (such as legal persons in the type of legal persons) can also act as plaintiffs against other administrative entities, that is, "officials suing officials". The ability of administrative litigation rights is the same as the ability of civil litigation rights, and the subject who does not have the ability of litigation rights cannot bring a lawsuit as a plaintiff. (II) have litigation capacity Litigation capacity, also known as litigation capacity, is the ability of the parties to participate in litigation in person or appoint an agent to exercise their litigation rights and assume litigation obligations with their own actions. Citizens who bring a lawsuit need to have the ability to litigate, those who do not have the ability to litigate cannot bring a lawsuit in their own name, and their legal representatives are required to act on their behalf. (III) has an interest relationship with the accused administrative act Whether it is the administrative counterpart or other citizens, legal persons and other organizations that can initiate administrative litigation, they must have an interest in the administrative act they sue. The element of interest is the core element of the plaintiff's qualification in administrative litigation, and it is also the difficult and controversial point to judge the plaintiff's subject qualification. Combined with legal theory and trial practice, the elements of interest are summarized: 1. Existence of a right or interest conferred and protected by a law If the rights and interests of the plaintiff to apply for relief are not required to be protected by law, then even if the plaintiff believes that the administrative action has caused damage to himself, there is no need to resort to justice for protection. Such interests are generally limited to public law interests, but may be extended to private law interests where there are special provisions in the law. For example, the administrative act being sued as stipulated in Article 12, Paragraph 1 of the Interpretation of the Administrative Litigation Law involves its neighboring rights or the right to fair competition. 2. The right or interest is vested in the plaintiff and the plaintiff brings the action in his own interest. The plaintiff must bring a lawsuit for his own rights and interests. If he sues for the interests of others or the public, he shall not be qualified as a plaintiff. Taking complaints and reports as an example, Article 12, Item 5 of the Judicial Interpretation of the Administrative Litigation Law stipulates that "in order to protect one's own legitimate rights and interests, the administrative agency with the responsibility of handling complaints has made or failed to deal with the complaint" is related to the administration. One of the situations in which the act has an interest. If complaints and reports are to have the elements of interest, the whistleblower must be for his own legitimate rights and interests [see (2013) case no 14 of line he zi]. The "Meeting of the First Circuit Court of the Supreme People's Court on Several Issues Concerning the Application of Administrative Trial Law" issued on July 23, 2018 explained the plaintiff qualification of the whistleblower. As consumers, recipients of services, competitors, victims, or claimants of rewards for reporting matters, in order to safeguard their own legitimate rights and interests, report the illegal acts of operators to administrative organs with statutory powers of investigation and punishment, whistleblowers who apply for government information disclosure on the handling of reported matters shall have an interest in the government information disclosure reply or non-reply act of the statutory authority, and shall be qualified as a plaintiff. Ordinary citizens only use the constitutional right to report and accuse to the statutory authority to report the illegal business activities of the operator and request to be investigated and dealt with. The whistleblower applies for government information disclosure on the handling of the reported matter, usually with the statutory authority. The government information disclosure response behavior or non-response behavior has no interest and does not have the plaintiff qualification. However, the administrative organ promises to have a reward for reporting, except for the whistleblower who applies for the disclosure of relevant information for obtaining the reward. 3. The right or interest may have been infringed by the accused administrative act and the law requires the administrative organ to take such interest into account when it acts. With regard to the standard of proof of evidence submitted by the prosecutor at the prosecution stage to prove that his legitimate rights and interests have been infringed, as long as the prosecutor in administrative litigation has provided preliminary evidence to prove that his legitimate rights and interests are likely to be infringed, it is not required to fully prove that his legitimate rights and interests have actually been infringed [see (2016) Supreme Law Law Application No. 1759]. In addition, the rights and interests to be protected by the plaintiff must be the rights and interests to be protected by the law that the administrative organ needs to consider when making the administrative act, that is, whether the administrative organ is required to consider, respect and protect the rights and interests to be protected by the plaintiff when making the administrative act and whether the administrative organ is required to consider, respect and protect the rights and interests to be protected by the plaintiff if it needs to be considered, on the contrary, it does not have [see (2017) the highest law line application No. 169]. 4. Other circumstances with the qualification of plaintiff in administrative litigation as prescribed by law (1) Administrative public interest litigation The third paragraph of Article 25 of the administrative procedure law stipulates that the people's Procuratorate shall have the qualification of plaintiff in administrative litigation for the interests of the state or the public interest. (2) Plaintiff qualification of lessee In the "Meeting of the First Circuit Court of the Supreme People's Court on Several Issues Concerning the Application of Administrative Trial Law", it is generally believed that the lessee has no interest in the expropriation decision, the expropriation compensation decision, the expropriation compensation agreement behavior, and the compulsory demolition of the house, and does not have the plaintiff qualification. However, if the lessee has an inseparable and significant addition to the expropriated house, or independently carries out business activities in the leased house in accordance with the law, or forcibly demolishes the house, the lessee has an interest in the expropriation decision, the expropriation compensation decision, the expropriation compensation agreement and the compulsory demolition of the house, and has the qualification of the plaintiff. Circumstances in which the 3. is not a plaintiff (I) parties do not have the ability to participate in administrative proceedings The people's court may, at any stage of the proceedings, examine ex officio whether the plaintiff has the capacity to participate. If the plaintiff is found to be incapable of participation, the prosecution does not meet the statutory conditions, and the people's court may rule to dismiss the prosecution without further review of other prosecution conditions and without notifying the defendant to reply. Referring to (2017) the case of Supreme Law Bank Shen No. 6549, the retrial applicant filed an administrative lawsuit in the name of "Huaiyang County No.2 Chemical Fertilizer Plant", claiming that although he did not apply for a business license, he belonged to a "collective enterprise" of the Moto Commune ". The Supreme People's Court believes that "obtaining a business license after registration in accordance with the law" is a legal condition for township enterprises and street enterprises to become "other organizations. Therefore, the court of first instance ruled to dismiss the lawsuit on the grounds that the retrial applicant filed a lawsuit in the name of Huaiyang County No. 2 Fertilizer Plant, but could not provide a legal business license and could not prove that Huaiyang County No. 2 Fertilizer Plant had the status of a legal person or other organization. (II) and administrative acts have no interest in public law. After determining that the plaintiff has the ability to participate in litigation, it is often necessary to focus on the "interest relationship" between the plaintiff and the accused administrative act, which is limited to legal interests and does not include reflective interests. Except for special circumstances, it only means that citizens, legal persons or other organizations have an interest in public law with administrative acts and form a relationship of rights and obligations in the field of public law, and they are not satisfied with the administrative act, and they have the right to bring administrative proceedings. The following is an analysis and interpretation of "no public law stake" in the light of laws and regulations and typical cases. 1. If a citizen, legal person or other organization files an administrative lawsuit on the site selection opinion of the construction project of the urban and rural planning department on the ground of infringement of environmental rights, it is generally considered that there is no legal interest. With reference to (2017) the Supreme Law Application No. 4361 case, the Supreme Court proposed that only when the rights and interests that the prosecutor claims to protect fall within the scope of protection of the legal norms of the administrative entity on which the administrative organ makes the administrative act, the prosecutor has the qualification of the plaintiff. On the other hand, if the prosecutor has certain rights and interests, but it is not the administrative organ that needs to consider when making the administrative act, or if the prosecutor does not have the rights and interests that the administrative organ needs to consider when making the administrative act, the people's court should not recognize the plaintiff's subject qualification. 2. After the original legal representative of a state-owned enterprise is removed from office, he cannot bring an administrative lawsuit in the name of the enterprise. With reference to (2016) the Supreme Law Law No. 2057 case, after the original legal representative of a state-owned enterprise was removed from his post, he used the invalidated official seal to file an administrative lawsuit in the name of the company, which is not an expression of the true meaning of the enterprise, and the original legal representative does not have the qualification of plaintiff. And if the establishment and establishment of the company has no legal interest with the individual citizen, the citizen cannot file an administrative lawsuit in the name of the individual against the administrative agency's approval and decision to establish the company. 3. Retired faculty and staff of public schools who are dissatisfied with the cancellation of public schools by the people's government at or above the county level and file an administrative lawsuit do not have the qualifications of the plaintiff Referring to (2016) the case of Supreme Law Application No. 359, according to the provisions of the Education Law and in combination with local conditions, the government's actions such as the establishment, modification and termination of primary and secondary schools within its jurisdiction are aimed at the public institution legal person of the secondary school under its direct management, and do not infringe upon the personal rights and property rights enjoyed by the retired teaching staff of the secondary school. Therefore, there is no legal basis for the retired teaching staff to file a lawsuit in their personal name, does not have the plaintiff subject qualification. 4. The people's government's approval of the transfer of part of the company's equity has not had a direct impact on the rights and obligations of the company's ordinary creditors. At this time, the general creditor does not have the plaintiff's subject qualification to bring an administrative lawsuit. Referring to the case of He Zongyu v. Zhumadian Municipal People's Government for approving the transfer of state-owned shares, the Supreme People's Court believes that Zhumadian Municipal People's Government's approval of the transfer of 80% shares of Dongfang Company will lead to the change of internal shareholders and the change of shareholders' shareholding ratio of Dongfang Company, but will not affect the creditor's rights and interests of the company's creditors. Dongfang Company, as an independent enterprise legal person, will not change or eliminate the civil subject of its property, nor will it have a direct impact on the rights and obligations of ordinary creditors of Eastern Company. Therefore, the applicant for retrial does not have the qualification of the plaintiff to bring the administrative action in this case. 5. The original owner has no interest in the government's recovery of the right to use state-owned land after the house has been expropriated. Referring to Xiong Zongqiang's case of land administration and administrative reconsideration of the respondent Yichang Municipal People's Government and Hubei Provincial People's Government, the Supreme People's Court held that the people's government's expropriation decision directly led to the legal effect of the change of real right, and the ownership of the relevant house belonged to the state, and the expropriated person no longer enjoyed the ownership of his house. The expropriation of urban houses also means the recovery of the right to use construction land. If the houses are expropriated according to law, the right to use state-owned land is also recovered at the same time. If the original land use right holder is not satisfied with the expropriation decision and compensation behavior, he can protect his legitimate rights and interests through administrative reconsideration, administrative litigation and other legal channels, but for the original house owner or land use right holder to sue the administrative organ after the house is expropriated according to law The act of recovering the state-owned land use right or the higher-level government's approval for the recovery of the land use right, because it no longer has an interest, its appeal will not be supported by the court. 6. There is no legal interest between the land leaseholder and the cancellation of the collective land use certificate. Referring to the case of Gao Heping and Han Xiaopeng v. Anyang Wenfeng District People's Government of Land Administration, the Supreme Court held that Gao Heping and Han Xiaopeng, as land leaseholders, had no legal interest in the cancellation of the collective land use certificate, and that the two did not have the qualification of the plaintiff to file a lawsuit in this case. 7. Item

2022-01-13

Real estate perspective: the identification and priority of "consumer buyers".

1. Introduction By the intensified market competition and the continued impact of the epidemic at home and abroad, some small and medium-sized real estate enterprises are not doing well, and even the capital chain is broken, debt-ridden, active or passive into bankruptcy proceedings. At this time, in order to safeguard their own interests, some buyers will claim to the bankruptcy administrator or the court to directly obtain the ownership of the property involved in the case as a consumer buyer or superior rights to other creditors, so how should they be identified in judicial practice as a consumer buyer? 2. Related Cases and Referee Views (I) consumer buyers should be living for the purpose of the buyer, if the parties based on the agreement to sign a purchase contract, the purpose of buying a house is to realize the creditor's rights, not for life, housing needs, does not belong to the consumer buyers. Therefore, it is not possible to enjoy the priority based on the status of consumer buyers. Case 1: Ding Xiaofang, Weihai Guangxin Real Estate Development Co., Ltd. and other bankruptcy claims confirmation disputes (Supreme People's Court (2020) Supreme Law Minshen No. 3340) The court held that: in accordance with Article 2 of the Supreme People's Court's Reply on the Priority of Compensation for Construction Project Prices, and Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, consumer The buyer of sex should be a buyer for the purpose of living and living. In this case, in the case of Lanfang's inability to repay its loan, the two parties reached an agreement to repay the debt in kind and signed the "Top House Agreement", which agreed that Guangxin Company would offset the property involved in the case to Lanfang, and made a clear agreement on the area and amount of the property. Ding Xiaofang's wife Yu Xiaoxia and Yu Lanfang are related. After Yu Lanfang's introduction, he signed the "Commercial Housing Sales Contract (presale)" with Guangxin Company and paid the corresponding money to Yu Lanfang. Based on the facts of this case, the borrowing behavior between Guangxin Company and Yu Lanfang, the behavior of repaying debts with houses, the payment behavior between Ding Xiaofang and Yu Lanfang, and the behavior of buying and selling houses between Ding Xiaofang and Guangxin Company are interrelated and inseparable. It can be considered that Ding Xiaofang formed the fact of buying houses based on the behavior of repaying debts with houses of Guangxin Company and Yu Lanfang, only when it was known that Guangxin Company gave Lanfang the real estate involved in the case and paid the house purchase money by using the principal and interest of Lanfang's loan, did it sign the Commercial Housing Sale Contract (presale) with Guangxin Company. There was no typical house sale relationship between consumers and developers between Ding Xiaofang and Guangxin Company, which was only the performance object of the house debt repayment agreement between Lanfang and Guangxin Company, the purpose of the purchase is to help Lanfang realize her creditor's rights. In addition, the court found out that Ding Xiaofang and his wife Yu Xiaoxia bought more than one set of real estate in Baidu City District. Therefore, the original court found that Ding Xiaofang was not a consumer buyer and rejected his claim for real estate transfer registration, which was not improper. Case 2: Zhou Lijuan and Changshu Xinmao Real Estate Development Co., Ltd. (hereinafter referred to as Xinmao Company) Case of Dispute over Commercial Housing Sales Contract (Jiangsu Changshu People's Court (2020) Su 0581 Minchu No. 5171) The court held that the focus of the dispute in this case is whether Zhou Lijuan belongs to a consumer buyer, whether the "commercial housing sales contract" involved in the case should continue to be performed, and whether it has been terminated. Article 2 of the Reply of the Supreme People's Court on the Priority Compensation Right of Construction Project Price stipulates that after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority compensation right of the project price enjoyed by the commercial housing. Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court stipulates that in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise, which meets the following circumstances and whose rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court is sealed up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. With reference to the aforementioned legal provisions, Zhou Lijuan used the project funds owed by Haizhu Company to offset the purchase price, and did not actually pay the house price to Xinmao Company. The commercial housing sales contract involved in the case is a specific operation method for fulfilling the housing agreement, so Zhou Lijuan obviously does not belong to For consumer buyers, Xinmao Company has entered bankruptcy procedures. If it continues to perform the contract, it will constitute debt repayment to individual creditors, which does not comply with the law. (II) consumers should purchase houses to meet their living needs, not for business or other reasons. The buyer of the shop who has paid most of the purchase price is not for residential needs, nor is it a consumer buyer. Can not enjoy the priority based on the living needs. Case: Wang Yongmei and Zunyi Ganhao Real Estate Development Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute (Guizhou Zunyi Intermediate People's Court (2021) Qian 03 Min Zhong No. 2290) The court held that the focus of the dispute in this case is whether the appellant belongs to the consumer buyer. According to the provisions of Article 2 of the Reply of the Supreme People's Court on the Priority Compensation Right of Construction Project Price, "After the consumer delivers all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority compensation right of the project price enjoyed by the commercial housing, giving priority protection to consumers who deliver all or most of the money for the purchase of commercial housing is based on the principle of social policy that survival interests outweigh business interests and special rules set up to protect consumers' right of residence. The scope of the provision should be strictly limited in its application and should not be interpreted in an expanded manner. Consumers should buy houses to meet their living needs, not for business or other reasons. In this case, according to the facts found out, both parties agreed that "Wang Yongmei purchased shops 1025 and 1026 on the first floor of building 2, sunshine waterfront phase ii developed by Ganhao company, which are used for commercial purposes". it can be seen that the nature of the house involved in the case purchased by the appellant is a shop, not for residential needs, and there is no special interest for priority protection. Therefore, the appellant believes that he has paid more than 80% of the house purchase price, and the appeal reason based on the priority protection of the personal rights of consumer house purchase cannot be established and will not be adopted. (III) the purchase of housing for the purpose of living and living, it belongs to the consumer buyer. However, if the proportion of payment does not reach the lower limit of the proportion of housing payment for consumer buyers, it can not be given priority protection as consumer buyers. Case: Liu Rongzhi and Zunyi Ganhao Real Estate Development Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute (Guizhou Zunyi Intermediate People's Court (2021) Qian 03 Min Zhong No. 2350) The court held that the focus of the dispute in this case is: whether the 1. Liu Rongzhi belongs to consumer housing and whether the right of residence should be given priority protection; ...... on focus one. According to Article 2 of the Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Price, it is stipulated that "after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority of compensation for the project price enjoyed by the commercial housing, giving priority protection to consumers who deliver all or most of the money for the purchase of commercial housing is based on the principle of social policy that survival interests outweigh business interests and special rules set up to protect consumers' right of residence. The scope of the provision should be strictly limited in its application and should not be interpreted in an expanded manner. At the same time, with reference to Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, the People's Court shall support the following circumstances if the buyer objects to the commercial housing registered in the name of the executing real estate development enterprise during the enforcement of monetary claims: (1) A legal and effective written sales contract has been signed before the people's court seals up; the commercial house purchased by the (II) is used for living and there is no other house for living under the name of the buyer; the price paid by the (III) exceeds 50% of the total price agreed in the contract. In this case, although Liu Rongzhi and Fang Yunyun bought the house, the house price paid accounted for 43.38 of the total house price, which did not reach the lower limit of the proportion of the house price paid by consumer buyers in the aforementioned legal provisions, therefore, Liu Rongzhi believes that he belongs to the consumer buyers should be given priority protection of the appeal reason can not be established, should not be adopted. 3. Summary After the enterprise enters the bankruptcy procedure, the creditor's right relief and the protection problem is particularly prominent. At present, the Approval of the Supreme People's Court on the Priority Right to Compensation for the Price of Construction Projects has lapsed. The provisions relating to the protection of the rights and interests of "consumer buyers" are reflected in Article 29 of the newly amended 2020 Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, which provides for the priority of buyers when certain conditions are met in the course of enforcement. Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court stipulates that in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise and meets the following circumstances and its rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court is sealed up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. Compared with the past, the court's determination of consumer buyers is more stringent. If the housing sales contract is essentially a debt-for-property agreement, the purchase of a house for the purpose of eliminating monetary debts, regardless of whether the house used for debt repayment is a residential or commercial house such as a shop. For housing, buyers cannot be recognized as consumer buyers and enjoy priority. The buyer of the shop who has paid most of the house purchase price is not for residential needs, nor can he enjoy the priority based on the needs of residential survival. Even if the purchase of housing for the purpose of living. However, if the proportion of the house price paid to the total house price does not reach the lower limit of the proportion of the house price paid by the consumer buyer in the aforementioned legal provisions, it cannot be given priority protection as a consumer buyer.

2022-01-13

The third meeting of the first general meeting of Jinan Fund Industry Association and the fourth meeting of the first Council were successfully held in Zhongcheng Qingtai Jinan Institute

On the afternoon of January 12, 2022, the third meeting of the first general meeting of Jinan Fund Industry Association and the fourth meeting of the first Council were successfully held in the 55th floor conference room of China Resources Center of Zhongcheng Qingtai (Jinan) Law Firm. A total of 43 representatives from the directors and vice presidents of Jinan Fund Industry Association attended the meeting. The meeting heard and deliberated and passed the "Proposal on Increasing Member Units of the Association", "The Association's 2021 Financial Report and 2022 Work Plan", "The Association's 2021 Work Summary and 2022 Work Plan" and other proposals. This meeting summarized the Jinan Fund Industry Association in 2021. In the face of the complicated economic situation and the repeated impact of the epidemic, the Jinan Fund Industry Association, with the support of all members, all sectors of society and departments at all levels, anchored the goal of "building the first private equity fund gathering highland in Shandong and the Yellow River Basin and building a private equity fund gathering highland with important influence in the country, firmly adhere to the concept of" taking members as the center, service as the foundation, self-discipline as the guarantee, and innovation as the soul ", and firmly promote the in-depth development of the" six ones "project with the mentality of persistent entrepreneurship and the spirit of courageously breaking through the barriers. it has laid a more solid foundation for continuing to lead the whole industry to ride the wind and waves in 2022. In 2022, the association will continue to take the "two goals" and "four concepts" as its work guidance, take the "six industry declarations" as its work guidelines, follow the established path of going out of Jinan, covering the whole province and connecting with the whole country, hold high the brand banner of "Qilu enterprise dance", deeply cultivate and serve Jinan and the province's specialized and high-tech growth enterprises, and strive to take another big step in consolidating the province's resources and improving its influence, take another big step in serving internal members and improving the joint force of the association's work, take another big step in docking advanced cities and expanding the development space of the association, and take another step in carrying out market-oriented operations and enhancing the association's sustainable development capabilities. A big new annual work goal. Zhongcheng Qingtai (Jinan) Law Firm is now the vice president of Jinan Fund Industry Association. Lawyer Tang Xiangdong served as the vice president of the association, and lawyer Zhang Jian served as the director of the legal wind control compliance professional committee. In order to do excellent, refined, specialized fund business, and better provide legal services for fund business clients, Zhongcheng Qingtai Jinan Institute integrates the resources of the whole institute, establishes the fund business center, and brings together excellent lawyers from various departments in the institute. Now it is composed of more than 30 senior lawyers who are proficient in and familiar with the field of fund legal business. The team lawyers all graduated from well-known law colleges in China, more than 80% of lawyers have a master's degree or above, a diploma with a double degree, and a collection of multi-compound lawyers in criminal, corporate, securities and other fields. At present, it provides fund legal services for more than 30 provincial and municipal state-owned enterprise fund companies and high-quality private fund companies, including Shandong guidance Fund, Jinan guidance Fund, Shandong Finance Group, Shandong Development Investment Group, Shandong Merchants Group, Shandong Expressway Group, Jinan first Investment Company, and so on. Since its establishment, Zhongcheng Qingtai Jinan Fund Business Center has been committed to the professional development of fund business, providing customers with full-process fund legal services, providing customers with accurate scheme design to the maximum extent, and reducing legal risks for customers to the maximum extent.

2022-01-13

Zhongcheng Qingtai Helps Jinan City Guide Fund Subsidiary Fund Management Company to Complete Private Equity Fund Manager Registration

Recently, Zhongcheng Qingtai (Jinan) law firm to help Jinan City to guide the fund under the new kinetic energy of Jinan financial investment private equity fund management Co., Ltd. to complete the registration of private equity fund managers. Since accepting the entrustment, the law firm has formed a team of lawyers composed of senior partner Wu Haiyang, director of the fund business center Zhang Jian, and co-processing lawyer Wang Xingyun, providing high-quality and efficient legal services for Jinan Caitou New Kinetic Energy Private Equity Fund Management Co., Ltd. And issued the "Private Equity Fund Manager Legal Opinion." After being examined and approved by the China Securities Investment Fund Industry Association, Jinan Caitou New Dynamic Private Equity Fund Management Co., Ltd. successfully completed the registration of fund managers. Zhongcheng Qingtai fund business team full-time engaged in fund business, for Jinan City, the first manager to register legal opinions through the China Foundation Association audit law firm. Since the China Securities Investment Fund Industry Association issued the Announcement on Further Regulating the Registration of Private Equity Fund Managers on February 5, 2016, the law firm completed the submission and approval of the first legal opinion on the registration of fund managers in Jinan in April 2016. So far, he has successively assisted Shandong Guoxin Yiyang Private Equity Fund Management Co., Ltd., Shandong Lushang Private Equity Fund Management Co., Ltd., Shandong Tietou Investment Management Co., Ltd., Qingdao Green Development Fund Management Co., Ltd., Shandong Lushang Private Equity (Investment) Fund Management Co., Ltd., Shandong High-speed Shengtong Private Equity Fund Management Co., Ltd., Shandong Land and Rural Revitalization Fund Management Co., Ltd., Jinan Industrial Development Fund Management Co, shandong Minghu Investment Management Co., Ltd., Shandong Wenzi Equity Investment Management Co., Ltd. and dozens of provincial and municipal state-owned enterprises and high-quality private fund management companies have completed the registration of fund managers. In order to do excellent, refined, specialized fund business and better provide legal services for fund business clients, Zhongcheng Qingtai Jinan Institute integrates the resources of the whole institute and establishes a fund business center, which brings together excellent lawyers from various departments in the institute. Currently, it is composed of more than 30 senior lawyers who are proficient in and familiar with the field of fund legal business. The team lawyers all graduated from well-known law colleges in China, more than 80% of lawyers have a master's degree or above, a diploma with a double degree, and a collection of multi-compound lawyers in criminal, corporate, securities and other fields. At present, it provides fund legal services for more than 30 provincial and municipal state-owned enterprise fund companies and high-quality private fund companies, including Shandong guidance Fund, Jinan guidance Fund, Shandong Finance Group, Shandong Development Investment Group, Shandong Merchants Group, Shandong Expressway Group, Jinan first Investment Company, and so on. Since its establishment, Zhongcheng Qingtai Jinan Fund Business Center has been committed to the professional development of fund business, providing customers with full-process fund legal services, providing customers with accurate scheme design to the maximum extent, and reducing legal risks for customers to the maximum extent.

2022-01-13