Zhongcheng Qingtai Law Firm Won the List of Chambers "2022 Greater China Legal Guide"

On January 12, 2022, the international authoritative legal rating agency Chambers (Chambers and Partners) announced the "Chambers Greater China Guide 2022" (Chambers Greater China Region 2022) list. Zhongcheng Qingtai Law Firm ranked first in the corporate/commercial (Shandong) business field (Band 1), and Geng Guoyu, director of Zhongcheng Qingtai (Jinan) Law Firm, won the "First-class Lawyer" (Band 1). Being included in the list for 6 consecutive years is not only a high recognition of Zhongcheng Qingtai's professional capabilities by the market, but also demonstrates the huge development potential of Zhongcheng Qingtai in related business fields. Chambers' evaluation of Zhongcheng Qingtai Law Firm: What the team is known Jointide Law Firm is recognised as an eminent and active player in the local market. Clients benefit from the team's extensive Shandong network including offices in Zibo, Dongying and Yantai. Provides a broad corporate offering including securities, trade, employment, and IP. Receives constant praise for its client service. Two of the firm's largest offices are in Jinan and Qingdao. Sophisticated dispute resolution offering covering all aspects of commercial law, including contract and subrogation disputes. Strengths One admiring market source observes that the firm has "developed well" and further compliments them for their "smooth means of operation ." Notable practitioners Business Advantage Zhongcheng Qingtai Law Firm is recognized as a strong force active in the local legal community. Customers benefit from its extensive network in Shandong, including offices in Zibo, Dongying and Yantai. Offers a wide range of corporate businesses including securities, trading, labor law and intellectual property. Continued praise for excellent customer service. The two largest branches of the Institute are located in Jinan and Qingdao. Its mature dispute resolution services cover all aspects of commercial law, including contract and subrogation disputes. Team Strengths One admiring market commentator observed that the firm was "well developed" and praised its "smooth operating model." Chambers' evaluation of lawyer Geng Guoyu, director of Zhongcheng Qingtai (Jinan) Law Firm: Geng Guoyu is the director of the firm and a leading commercial dispute resolution lawyer in the Shandong market. He is also widely recognised for his expertise in construction and real estate. One interviewee remarks that "he is quite a qualified and highly capable lawyer ." Geng Guoyu is the director of the institute and is a leading commercial dispute resolution lawyer in Shandong market. His expertise in construction engineering and real estate is widely recognized. One respondent commented that "he is a very senior and competent lawyer." Chambers Chambers Research is an authoritative international legal rating agency. Its research covers nearly 6000 rankings and hundreds of thousands of client responses in the legal service market of nearly 200 countries around the world. Through rigorous research and evaluation system, it selects world-renowned law firms and top lawyers in various legal fields. It is one of the most trusted authoritative references for global clients to seek high-end legal services, and is widely regarded as the benchmark of the industry.

2022-01-13

CCTV's "Craftsmanship" Documentary Film Team Successfully Completed the Shooting Work of Zhongcheng Qingtai

From January 5th to 10th, 2022, the CCTV documentary film crew of "Craftsmanship" successfully completed a 6-day field shooting at Zhongcheng Qingtai Law Firm. Chief director Yang Jin and director Liu Jiayu of the "Craftsmanship" team came to guide the shooting. The film will be broadcast on CCTV Discovery Journey Channel after filming and production. In the form of a documentary, "Craftsmanship and Wisdom" comprehensively shows the development of Zhongcheng Qingtai Law Firm for more than 30 years through interviews and shooting in Jinan and Qingdao, records the struggle of Zhongcheng Qingtai lawyers to stick to the spirit of craftsmanship, and shows the audience the story of lawyers who have contributed to the social and economic development and the construction of China ruled by law. ▼ Some shooting tidbits of of of Ingenuity, is the pursuit of professional excellence Wisdom is the wisdom of the contribution to the development of the industry. Long journey, Do not forget your initiative mind. Regarding the future, Zhongcheng Qingtai will also continue to innovate, develop into a broader and deeper development context, and explore the way for the development of the national lawyer business. Based on the present and future of China's lawyer industry, Zhongcheng Qingtai lawyer will start again in the name of legal person.

2022-01-12

The leaders of Taishan Sports Industry Group Co., Ltd. visited Zhongcheng Qingtai Jinan for exchange.

Recently, Bian Xiaonan, executive vice president of Taishan Sports Industry Group Co., Ltd., Li Jun, director of Taishan Sports Industry Group Co., Ltd., and other leaders of the group visited Zhongcheng Qingtai Jinan for exchange. Tang Xiangdong and Cai Weizhong, deputy directors of Zhongcheng Qingtai Jinan Institute, warmly received the visiting leaders. Director Tang Xiangdong and Director Cai Weizhong extended a warm welcome to the leaders of Taishan Sports Industry Group Co., Ltd., and introduced the historical evolution, development process, professional team, business results and future plans of Zhongcheng Qingtai Law Firm to the visiting leaders in detail. And put forward new ideas and ideas for further strengthening cooperation and exchanges between the two parties. President Bian Xiaonan expressed his gratitude to Zhongcheng Qingtai Law Firm for the warm reception, and exchanged views on the progress of the case currently being cooperated between the two parties. He also expressed his appreciation and affirmation of the spirit and team professional capabilities of Zhongcheng Qingtai lawyers, and hoped to cooperate with Zhongcheng Qingtai. Further strengthen cooperation to achieve mutual benefit and win-win results. This visit has enhanced the understanding between the two sides, and will further strengthen exchanges and cooperation in the future, seek more business convergence points, and strengthen resources and business docking.

2022-01-11

Viewpoint... A brief analysis of the divorce procedure of a person without civil capacity.

【Abstract】 According to the provisions of the the People's Republic of China Civil Code, divorce is divided into divorce by agreement and divorce proceedings. Divorce by agreement requires both husband and wife to divorce voluntarily, sign a written divorce agreement, and apply for divorce registration in person at the marriage registration office. Because a person without civil capacity cannot identify his own behavior, a person without civil capacity cannot agree to divorce, and divorce can only be done through litigation. This paper will make some preliminary discussion on the procedure and operation skills of divorce proceedings for persons without civil capacity. 【Key words】divorce agreement pre-special procedures divorce procedures and relief channels As a marriage lawyer, I have encountered a number of divorce cases of persons with no capacity for civil conduct this year, especially when one of the spouses loses capacity due to an accident, and the other party fails to perform the obligation of support after receiving compensation. In order to protect their legitimate rights and interests, close relatives of the person with no capacity for civil conduct often choose to sue for divorce on their behalf. Now, with the emergence of some uncertain factors such as diseases and accidents, people with no capacity for civil conduct are also increasing. In order to safeguard their legitimate rights and interests, the author now discusses the system and procedures for people with no capacity for civil conduct to sue for divorce in combination with relevant laws. The reason for the divorce of a person without civil capacity in the 1. is not applicable to the divorce by agreement. First of all, people without civil capacity can only divorce through litigation. According to Article 12 of the "Marriage Registration Regulations": If a person without civil capacity or a person with limited civil capacity handles divorce registration, the marriage registration authority will not accept it. Therefore, persons without civil capacity cannot divorce by registering divorce with the marriage registration authority, but can only divorce through litigation. Secondly, because divorce by agreement requires the complete voluntariness of both husband and wife, people without civil capacity do not have this realistic condition, so divorce by agreement cannot be carried out. The most important condition of divorce by agreement is that both husband and wife divorce voluntarily. This kind of voluntary behavior is a voluntary behavior from the heart, excluding all external obstruction and interference. Therefore, both parties must submit the application to the marriage registration authority in person. The divorce application is an expression of the true meaning of the parties applying for divorce. The two parties applying for divorce registration by agreement reach an agreement on the division of family common property, creditor's rights and debts, the upbringing of children or the help to the party with difficulties in life, and consciously implement the agreement. None of the above acts can be completed without civil capacity, so divorce by agreement cannot be carried out. Again, divorce proceedings can better protect the legitimate rights and interests of persons without civil capacity. Divorce is a legal act in which the family marriage relationship changes significantly. It involves the various rights of the parties to the divorce and is an important civil legal activity. Only through litigation can we achieve the purpose of safeguarding the legitimate rights and interests of the parties. The Particularity of the Divorce Procedure of 2. Persons Without Civil Capacity The divorce case of a person without civil capacity must be preceded by special procedures, I .e. the person without civil capacity is declared and a guardian is appointed. Below I will combine a case to introduce this special procedure. Ms. Yu and Mr. Chen are a couple. Ms. Yu is now in a coma due to injuries in a traffic accident. Mr. Chen did not fulfill his obligations as husband and wife. He neither fulfilled his maintenance obligations nor filed for divorce. He also transferred the joint property of the husband and wife without authorization. According to the "the People's Republic of China Civil Code", the spouse is the first guardian of the person without civil capacity. If the guardianship relationship is not changed, the plaintiff's seat and the defendant's seat in the court will be the same person. However, with this kind of pre-procedure, this situation can be avoided. Ms. Yu's mother proposed to the court to declare Ms. Yu as a person without civil capacity and requested to appoint a guardian. This special procedure requires the establishment of a special case number, the cause of which is to apply for the declaration of a natural person without civil capacity. The specific operation is as follows: Ms. Yu's mother, Zhang, as the applicant, and Ms. Yu, as the respondent, applied to the court to declare Ms. Yu as a person without civil capacity, and applied to appoint Ms. Yu's mother, Zhang, as her guardian. After receiving the case, the court will make a record for each guardian and cross-examination of the woman's medical record. After entrusting an appraisal agency to appraise the woman's capacity, it will determine that she is a person without civil capacity based on the final appraisal opinion. After the court determined that Ms. Yu was a person without civil capacity according to the appraisal opinion, Ms. Yu's mother Zhang was appointed as the guardian. Once a guardian has been identified, divorce proceedings can be instituted and his proceedings are represented by the guardian. The situation of the divorce judgment of the person without civil capacity in 3.. 1. In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and economically. The law promotes the values of goodness, so when the spouse of a person without civil capacity sues for divorce, a judgment is made against divorce. Because Article 1043 of the "the People's Republic of China Civil Code" stipulates: "The family should establish a good family style, promote family virtues, and attach importance to the construction of family civilization. Husband and wife should be faithful to each other, respect each other and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations. "In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and financially. The law advocates the values of goodness, so it will make a judgment against divorce in order to safeguard the social values that justice should guard. 2. If the court believes that the relationship between husband and wife exists in name only due to the person without civil capacity, and the relationship between husband and wife is completely broken due to the inability of both parties to communicate, it will support the divorce petition. And in judicial practice, it cannot be ruled out that people without civil capacity have more property. Their spouses neither file for divorce nor take care of the other party, but use the identity of the property manager to squander the other party's property. If they are not allowed to divorce, they may appear Under the guise of legal marriage, the rights and interests of people without civil capacity are wantonly infringed. And because people without civil capacity cannot communicate normally, the relationship between husband and wife is broken, and the dissolution of marriage is more conducive to protecting the legitimate rights and interests of people without civil capacity, and the court will make a divorce judgment. There are many cases of divorce of persons without civil capacity. The court will make different decisions based on different reasons. Some allow divorce, and some do not allow divorce. In dealing with the divorce of persons without civil capacity, the first consideration should be given to the basic survival of persons without civil capacity. If a person with civil capacity does not have other close relatives to take care of and care after divorce, his right to survival cannot be effectively protected. In this case, divorce should not be allowed. If their rights and interests are effectively protected, divorce may be granted. The people's court can neither allow the parties to divorce to restrict or deprive the parties of their right to freedom of marriage in disguise, as stipulated in the legislation of feudal society, nor can they decide divorce without considering the actual circumstances of the case. The People's Court shall, in accordance with the spirit and principles of marriage legislation, properly handle the case in accordance with relevant legal provisions and consideration of the circumstances of the case. Remedies 4. Divorce Cases of Persons Without Civil Capacity According to the different types of first instance judgment, the rights and remedies of the parties in divorce cases are distinguished as follows: 1, the court ruled that divorce is not allowed. After the divorce case has been tried by the court of first instance, if the divorce is not allowed to be divorced, the plaintiff and the defendant may appeal before the judgment takes effect. (Note: Since divorce cases involve not only status relations, but also child support and property and debt issues, the court of second instance, if it considers that a divorce should be decided, should mediate on the child support and property and debt issues, and if mediation fails, the divorce cannot be changed directly, but should be remanded. In other words, in such cases, the parties' claims to appeal are restricted.) 2. The court decides to grant the divorce. In cases where the court decides to grant a divorce, both parties may appeal. The court of second instance may, after hearing the case, change the decision and forbid divorce. After hearing the case, the court of second instance still decided to grant the divorce and made a judgment on the maintenance of children and property. 3. Cases in which the court's first-instance judgment forbidding divorce or granting divorce has legal effect. If the court makes a judgment forbidding divorce or granting divorce, and the plaintiff and the defendant fail to appeal within 15 days from the date of service of the judgment, the judgment of first instance shall have legal effect. The plaintiff and the defendant shall not appeal against the legally effective judgment. If you are not satisfied with the judgment of the first instance involving property relations, you may apply for a retrial within the statutory time limit. Additional provisions: 1. Article 28 of the the People's Republic of China Civil Code: For adults with no or limited capacity for civil conduct, the following persons with guardianship capacity shall serve as guardians in order: (1) spouse; (II) parents, children; (III) other close relatives; (IV) other individuals or organizations willing to act as guardians, However, the consent of the neighborhood committee, village committee or civil affairs department of the ward's domicile is required. 2. Article 12 of the regulations on Marriage Registration stipulates that if a person with no capacity for civil conduct or a person with limited capacity for civil conduct applies for divorce registration, the marriage registration authority shall not accept it.

2022-01-10

Zhongcheng Qingtai Lawyer Helps Luyin Investment to Successfully Issue Shares

On January 4, 2022, Luyin Investment Group Co., Ltd. (hereinafter referred to as "Luyin investment", stock code 600784) announced that it had received the reply on approving the non-public offering of shares of Luyin Investment Group Co., Ltd. (CSRC license [2021] No. 4149) issued by China Securities Regulatory Commission, This non-public offering of shares by Zhongcheng Qingtai (Jinan) law firm to provide special legal advisory services. Luyin Investment's non-public issuance of shares does not exceed 107,474,431 shares (including the number). After deducting the issuance expenses, all the funds raised are planned to be used to repay bank loans, which will help listed companies control financial expenses, improve profitability, and further improve debt. Ability to reduce financing costs. The main industries of Luyin Investment include equity investment, salt and salt chemical industry, powder metallurgy and products, cashmere textile, economic and trade business, etc, it has jurisdiction over more than 20 wholly-owned and holding subsidiaries, including Shandong Luyan Group Co., Ltd., Shandong Luyin New Material Technology Co., Ltd., Shandong Luyin Yanxue Energy Storage Engineering Technology Co., Ltd., Shandong Luyin (Shouguang) New Energy Co., Ltd., Shandong Luyin International Economic and Trade Co., Ltd., Luyin Group Yucheng Cashmere Textile Co., Ltd., Luyin Group Yucheng Powder Metallurgy Products Co., Ltd., and more than 10 companies, including Wanrun shares. Zhongcheng Qingtai (Jinan) Law Firm was hired as the special legal adviser for Luyin Investment's non-public offering project. Zhongcheng Qingtai senior partners Ma Shibin and Hu Youbin led the project team members lawyers Cai Jing, Qu Mengyu, Pan Xiaofan and Liu Xin to provide them with comprehensive, efficient and high-quality legal services.

2022-01-07

Viewpoint... Analysis of the litigation status and sharing principle of appraisal fees.

Abstract: In civil and commercial disputes, especially in construction project disputes, medical disputes, traffic accident disputes and other cases, the collection and burden of appraisal fees are often the problems that the parties, agents and judges do not attach great importance. As for the sharing of appraisal costs, some courts do not deal with them in the judgment documents, some courts deal with them in the judgment items, and some courts deal with them in the part of the case acceptance fees. Even different judges of the same court will have different writing methods. The reason for the above situation is that judges have different understanding of the litigation status and sharing principle of appraisal fees. In addition to the above, there are also problems such as whether the appraisal fees should be handled in this case and whether they should be handled in the judgment or in the part of the litigation fees, whether the parties can bring a lawsuit or appeal separately on the appraisal fees, and who should bear the appraisal fees paid by the defendant if the plaintiff withdraws the lawsuit, etc. Keywords: appraisal fee, appraisal fee sharing, appraisal fee status, appraisal fee commitment. The relevant laws and regulations of 1. on appraisal fees have evolved. With regard to the cost of appraisal, the Civil Procedure Law does not provide for detailed provisions. The current "Civil Procedure Law" only divides litigation costs into "case acceptance fees" and "other litigation costs" in the first paragraph of Article 118 ". In 1984, the Supreme People's Court issued the "Measures for Civil Litigation Fees (for Trial Implementation)". The second paragraph of Article 2 of the judicial interpretation stipulates: "The parties to a property case shall pay appraisal fees, inspection fees, announcement fees, and witness missed work subsidies. And travel fees, as well as other litigation costs that the people's court believes should be borne by the parties." It can be seen from this provision that the 1984 Civil Litigation Fees (Trial) classifies appraisal fees into the category of "other litigation costs" and does not further subdivide appraisal fees. In 1989, the Supreme People's Court promulgated the "People's Court Litigation Fees Measures", which abolished the 1984 "Civil Litigation Fees Measures (Trial)". Article 2 of the 1989 Measures for Litigation Fees of the People's Courts stipulates: "In addition to paying the case acceptance fee to the people's court, the parties to property cases and administrative cases shall also pay the following fees: (1) fees for inspection, appraisal, announcement and translation (except for the local common ethnic languages and characters); (II) the transportation expenses, accommodation expenses, living expenses and missed work subsidies for witnesses, appraisers and translators to appear in court on the date decided by the people's court;" it can be seen that compared with the 1984 "civil litigation fee method (Trial)", The traditional "appraisal fee" is subdivided into two parts: "appraisal fee" in the sub-concept sense and "transportation fee, accommodation fee, living expenses and missed work subsidy fee for appraisers to appear in court. Both belong to the category of "other litigation costs" in litigation costs and should be paid to the court. In 2006, the State Council promulgated the "Measures for the Payment of Litigation Costs". Article 6 of the administrative regulations stipulates: "The litigation costs that the parties shall pay to the people's court include: (1) Case acceptance fees; (II) application fees; (III) witnesses, appraisers, and interpreters Transportation expenses, accommodation expenses, living expenses and lost work subsidies incurred by personnel and calculators appearing in court on the date designated by the people's court." It can be seen that although the 2006 "Measures for the Payment of Litigation Costs" maintained the subdivision of appraisal fees in the 1989 "Measures for Litigation Fees of the People's Courts", it only included the "transportation expenses, accommodation expenses, living expenses and lost work subsidies for appraisers appearing in court" in the "litigation costs that the parties should pay to the people's courts", while the "appraisal fees" in the sub-concept did not appear in the clear list. The 2006 "Measures for the Payment of Litigation Costs" further stipulates in Articles 11 and 12: "The transportation expenses, accommodation expenses, living expenses and lost work subsidies incurred by witnesses, appraisers, translators and calculators appearing in court on the date designated by the people's court shall be collected by the people's court in accordance with the standards prescribed by the state." "In the course of litigation, the people's court shall decide on the principle of who claims and who bears the expenses that should be borne by the parties concerned in accordance with the law due to appraisal, announcement, inspection, translation, evaluation, auction, sale, storage, storage, transportation and ship supervision, and the people's court shall not collect and pay the expenses directly to the relevant institutions or units." It can be seen that the parties involved in the part of "transportation, accommodation, living expenses and missed work subsidies for the appraiser to appear in court" need to pay to the court, while the parties involved in the sub-concept of "appraisal fees" need to be paid directly to the relevant institutions or units, and the people's court shall not collect and pay on their behalf. In 2009, the National Development and Reform Commission and the Ministry of Justice issued the measures for the Administration of Judicial expertise fees, in which Article 15 states that "in litigation activities, if a party applies for and is approved by the people's court to directly entrust a judicial expertise institution to carry out the appraisal, the required appraisal fees shall be paid directly by the party concerned to the judicial expertise institution, and the people's court shall not collect and pay on its behalf." This article is basically consistent with the handling mode of the Measures for the Payment of Litigation Costs issued by the State Council in 2006. Some Controversial Issues on Appraisal Fee in 2. Whether the (I) appraisal fee falls within the scope of litigation costs The first view: the judicial appraisal fees paid by the parties in the course of litigation are litigation costs. Chapter 2 of the new Measures for the Payment of Litigation Costs stipulates the scope of payment of litigation costs, which are roughly divided into two categories: one is the litigation costs paid directly by the parties to the people's court or collected by the people's court on their behalf, and the other is the people The court decides that the parties directly pay the relevant institutions or units, such as appraisal fees, assessment fees, etc. Clearly, identification fees are classified as litigation costs. The second point of view: Article 12 of the Measures for the Payment of Litigation Costs stipulates: "In the course of litigation, the people's court shall, according to the principle of who claims and who bears the expenses that should be borne by the parties due to appraisal ......", that is to say, appraisal is the obligation of the applicant to prove evidence and should be borne by the applicant as the cost of proof. I think the first point of view is more convincing: First, the new "Measures for the Payment of Litigation Costs" stipulates that appraisal fees and other fees are included in the scope of payment of litigation costs in Chapter II, indicating that appraisal fees are still litigation costs. Article 6 only stipulates "the litigation costs that the parties should pay to the people's court", and does not include the meaning of "those who do not pay to the people's court do not belong to the litigation costs. Second, the principle of "who claims, who bears" as mentioned in Article 12 of the new "Measures for the Payment of Litigation Costs" should refer to the principle of determining the subject of payment at the stage of proof, rather than the principle of who will bear the final determination of the appraisal fee when the result of the judgment appears. The principles set out in Article 12 do not affect the status of appraisal fees as litigation costs. Third, the Civil Procedure Law stipulates that the parties may apply to the people's court for appraisal on the special issue of ascertaining the facts. If the parties apply for appraisal, the parties shall determine the qualified appraiser through consultation; if the consultation fails, the people's court shall appoint the appraiser. Note the wording here, the parties are the applicants and the court is the designee. The obligation of the appraisal institution is to help the judge explain and judge specific issues through specialized knowledge. Therefore, the status of the appraisal institution is neutral and has no employment or contractual relationship with any party involved in the lawsuit. The appraisal is entrusted by the court as the main body. The appraisal fee is paid in advance by the parties instead of the court. This part of the fee should be taken as part of the litigation fee, and its litigation status is the litigation fee of procedural expenditure. Whether the (II) appraisal fee should be dealt with in this case and whether it should be dealt with in the judgment or in the litigation fee part. The first view: the appraisal fee is actually the reasonable cost of the applicant's expenditure for the realization of the right, which is an actual loss and should be dealt with in the judgment. The second point of view: appraisal fees belong to the category of litigation costs and should appear in the burden of litigation costs as procedural expenses in litigation. The third view: Although the appraisal fee is a reasonable expense for the applicant to realize the right, the court should not take the initiative to deal with it when the parties do not file a separate claim for the appraisal fee. I think the second point of view is more reasonable: first of all, when the appraisal conclusion obtained by the party applying for appraisal after paying the appraisal fee proves that the other party's claim is not valid, then the appraisal fee paid by the party applying for appraisal due to the other party's false claim may not be required to be borne by the other party in this case or another case, which obviously does not conform to the principle of litigation economy and efficiency. Secondly, as mentioned above, the new Measures for the Payment of Litigation Costs regard the appraisal fee as the litigation fee, which, together with the case acceptance fee, belongs to the expenses paid or advanced by the parties in advance, and belongs to the procedural expenses, so there is nothing wrong with dealing with the burden of litigation costs. (III) whether the parties can bring a lawsuit over the appraisal fee During the trial of the case or after the issuance of the judgment document, the parties often encounter situations where they have objections to the appraisal fee charged by the appraisal agency, and believe that the appraisal fee is too high or the appraisal fee should not be charged for the appraisal item has not been completed. In this regard, the parties can file a lawsuit with the appraisal agency to claim to reduce or return the appraisal fee. In practice, there are the following differences of views: The first point of view: the parties are the decider and applicant of the appraisal, and the court is given only the right to approve the appraisal application. If the parties believe that the appraisal results have not achieved the expected purpose, and then have objections to the appraisal fee, the parties may request the appraisal agency to return the appraisal fee. Its legal basis can be applied by analogy to Article 78 of the Civil Procedure Law, which states that "if a party disagrees with the appraisal opinion or if the people's court deems it necessary for the appraiser to appear in court, the appraiser shall testify in court. If, upon notification by the people's court, the appraiser refuses to testify in court, the appraisal opinion shall not be used as the basis for ascertaining the facts; the party who paid the appraisal fee may demand the return of the appraisal fee." The request for return here may be made by filing a separate lawsuit with the appraisal institution as the opposite party. The appraisal opinion is essentially a kind of witness testimony, so the appraisal fee in the sense of the sub-concept is actually the consideration paid by the party in order to obtain evidence, which is not directly related to the court and the other party. Within the framework of the current law, just as the expenses such as travel expenses paid by the parties in order to collect certain evidence cannot be claimed to the litigation counterparty, the appraisal fees paid by the parties to the appraisal institution in order to obtain the appraisal opinion do not have the same room for claiming to the litigation counterparty. How much and when the appraisal fee should be paid is decided through consultation between the party applying for appraisal and the appraisal institution and delivered directly to the appraisal institution or unit. The court has neither the right to decide nor the collection. The parties' disagreement with the appraisal fee only exists between the parties and the appraisal agency to deal with the problem of separate cases. The second point of view: in the civil law system, the task of appraisal institutions is to help judges identify and judge specific issues through specialized knowledge. Similarly, in China's legal system, the status of appraisal institutions is neutral, and there is no employment and contractual relationship with any party involved in the lawsuit, which can ensure the notarization and neutrality of justice. The Civil Procedure Law stipulates that the parties may apply to the people's court for appraisal on the specialized issue of ascertaining the facts. If the parties apply for appraisal, the parties shall determine the qualified appraiser through consultation; if the consultation fails, the people's court shall appoint the appraiser. Accordingly, the parties are the applicants and the court is the designee. Therefore, when the parties file a lawsuit against the appraisal fee, they should reject the lawsuit on the grounds that they have not established a contractual relationship with the appraisal institution and the plaintiff's subject is not suitable. I think the second view is more reasonable: first, although the appraisal fee belongs to the actual loss of the bearing party, it does not belong to the same category as the substantive rights in the litigant's claim, so it cannot claim relief or refund by way of litigation. Second, the subject of the appraisal commission is the people's court, and the contractual relationship is established between the court and the appraisal institution, which is a double-service contract, and the obligation of the appraisal institution is to help the judge explain and judge specific issues through expertise, while the obligation of the opposite people's court is to pay. The appraisal fee should be paid in advance by the court, because the appraisal institution serves the court. If the money is nominally paid by one of the parties, the appraisal institution will lose its neutral status. Only in practical operation, the court does not have this expense, and it is impossible to prepay a large amount of funds to entrust the appraisal, so in fact, the appraisal fee is advanced by the party applying for the appraisal, and finally shared by both parties under the proportion of responsibility determined by the judgment. This is a helpless move, but it is also the most in line with the common interests of all participants in the litigation. Based on this, if the parties have objections to the appraisal fee, they can only file a lawsuit with the people's court, and cannot file a lawsuit with the appraisal agency based on the entrustment contract relationship. (IV) whether the parties can file a separate appeal against the appraisal fee The parties cannot file a separate appeal against the burden of appraisal fees in the first-instance judgment. The reasons are as follows: Article 43 of the new "Measures for the Payment of Litigation Fees" stipulates: "The parties shall not file a separate appeal against the people's court's decision on litigation costs. If the parties individually object to the decision of the people's court on litigation costs, they may apply to the president of the people's court that made the decision for review. The review decision shall be made within 15 days from the date of receipt of the party's application. If the parties object to the calculation of the litigation costs decided by the people's court, they may apply to the people's court that made the decision for review. If there is a definite error in the calculation, the people's court that made the decision shall correct it." That is, if the parties have objections to the people's court's decision on litigation costs, they may apply to the president of the court or the court for review according to the circumstances, but they may not appeal the decision on litigation costs alone. Therefore, because the appraisal fee is the litigation fee stipulated in the Measures for the Payment of Litigation Fees, in accordance with the provisions of Article 43 of the Measures, the parties cannot appeal the appraisal fee alone, but they can apply to the president of the court for review. If there is any objection to the calculation of the litigation fee, you can apply to the court for review. (V) the plaintiff withdraws the lawsuit, who shall bear the appraisal fee paid by the defendant If the plaintiff claims rights to the defendant on the basis of the IOU evidence submitted by him, the defendant has doubts about the authenticity of the IOU and applies for appraisal. The appraisal conclusion is that the signature of the defendant in the IOU is false. After that, the plaintiff applies to the court for withdrawal of the lawsuit. There are different views on who will bear the appraisal fee advanced by the defendant after the plaintiff withdraws the lawsuit: The first view: should be borne by the defendant. Article 34 of the "Measures for the Payment of Litigation Costs" stipulates: "If the plaintiff or appellant in a civil case applies for withdrawal of the lawsuit, and the people's court decides to approve it, the case acceptance fee shall be borne by the plaintiff or appellant." It is clearly stipulated that the plaintiff is responsible for the "case acceptance fee", and the appraisal fee is clearly not a "case acceptance fee". At the same time, Article 12 of the Measures stipulates: "In the course of litigation, due to appraisal ...... the expenses that should be borne by the parties in accordance with the law, the people's court shall, in accordance with the principle of who claims, who bears ......", that is to say, the appraisal is the obligation of the defendant to prove evidence and should be borne by the defendant himself. The second point of view: should be borne by the plaintiff. Although the appraisal fee does not belong to the "case acceptance fee", it still belongs to the "litigation cost". Article 29 of the "Measures for the Payment of Litigation Costs" stipulates: "The litigation costs shall be borne by the losing party, except for those voluntarily borne by the winning party." In this case, the plaintiff withdrew the prosecution after the defendant applied for appraisal, and although it was not judged against him, the consequences should still be borne by the plaintiff. I think the second view is more reasonable: First, Article 145 of the Civil Procedure Law stipulates

2022-01-05

The lawsuit of objection to execution and the lawsuit of the outsider applying for retrial and the third party's revocation.

Article 227 of the Civil Procedure Law stipulates that in the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, the ruling shall be rejected. If an outsider or party to the case is not satisfied with the ruling and believes that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit in a people's court within 15 days from the date of service of the ruling. As a result, two major systems of relief for outsiders in the execution phase have been formed: the lawsuit of the outsider's execution objection and the application for retrial by the outsider. According to Article 56 of the Civil Procedure Law, the third party who has the right of independent claim and the third party who has no right of independent claim have not participated in the lawsuit because they cannot be attributed to themselves, but there is evidence to prove that part or all of the contents of the legally effective judgment, ruling or mediation statement are wrong, thus damaging their civil rights and interests, within 6 months from the date when it knows or should know that its civil rights and interests have been damaged, it may bring a lawsuit to the people's court that made the judgment, ruling or mediation statement. Judging from the above provisions, the application for retrial by an outsider and the revocation of a third party are ordinary civil litigation, and the result of the litigation does not have the legal effect of excluding enforcement. The appeal of the outsider to enforce the objection does not negate the effective judgment instrument as the basis for enforcement, but only raises an objection to the subject matter of enforcement, with the aim of excluding enforcement. On the other hand, the lawsuit of the outsider applying for retrial and the third party's revocation holds that the effective legal instrument as the basis of enforcement is wrong, and the intention is to revoke or change the original effective legal instrument. In practice, the more controversial issue is whether the priority right holder, such as the security right, applies for enforcement on the basis of the effective decision after the effective judgment confirms its priority, and the outsider raises an objection, whether the remedy should be filed against the enforcement objection or apply for a retrial. For example, the treatment of objections raised by consumer buyers against the application for enforcement of the mortgage based on the effective judgment. In this case, if an objection is raised against the judgment itself, for example, if the mortgage is considered untenable or invalid or the mortgage is falsely established, the outsider has an objection to the content of the judgment itself, and he can apply for a retrial or a third party to cancel the lawsuit. On the contrary, if the existence of the mortgage is recognized and the right is considered to take precedence over the mortgage, he will raise an objection to the subject matter of execution, an action of objection to enforcement should be brought rather than a retrial or a third-party revocation.

2021-12-31

On the identification of subjective knowledge of drug crime

[内容摘要]明知是犯罪故意的认识因素，一切故意犯罪成立必须具备的主观要件。明知的认定，不能单纯依靠犯罪嫌疑人、被告人的供述或者辩解，必须通过其他证据予以证明。明知以证明明知为常态，以推定明知为例外。推定明知的基础事实必须得到严格证明，应限缩解释基础事实和推定事实之间的常态联系，准确适用刑事推定的反驳事由。     [关键词] 毒品犯罪 应当知道 证明明知 推定明知 我国刑法坚持主客观相统一，明知作为行为人的主观心理事实，是犯罪成立的前提条件。我国刑法学界对于毒品犯罪明知的理解有较大分歧，明知认定也是长期困扰刑事司法实践的难题之一，控辩双方往往针对这一问题展开针锋相对的论争。 一、问题的提出 案例一：箱包藏毒案 甲为下岗工人，后结识某“老板”，受雇去云南运送玉石，路上费用全包，另每日付工资100元。甲先后与“老板”到云南运送‘玉石’两次，得款2000元。某日，甲在“老板”带领下，到达云南，与乙接头，乙在宾馆将一个装着两盒玉镯的黑色行李包交给甲，并当场把玉石从包中拿出来让甲作了验收。甲在机场安检时被发现，其托运行李包夹层内被查获大量海洛因，一审法院认定甲构成运输毒品罪。甲不服，提出上诉。二审期间，“老板”被抓获，据其供述，甲对藏在行李包夹层中的毒品确不知情，二审法院以事实不清、证据不足为由，发回重审。重审期间，“老板”的供述出现反复，他说，甲应该知道运输的是毒品，只不过大家没有讲明这件事。原一审法院据“老板”供述，结合甲接到行李箱后，由“老板”探路，绕路前行的行为再次判处甲成立运输毒品罪，后二审法院作出无罪判决。本案需厘清以下问题：一是毒品藏在行李包夹层中能否适用推定；二是如果能够适用推定，本案是否符合推定的基础事实；三是假设符合推定的基础事实，被告人又是否作出了“合理解释”或者“有证据证明确属被蒙蔽”？ 案例二：网络包裹案 被告人乙与他人合谋，由他人以联系业务为名与我国某公司员工丙取得联系，以邮寄样品为名将毒品走私入境。后包裹从某国被邮寄给乙。同年2月7日，某市海关驻邮局办事处从该包裹内的菜谱中查获毒品可卡因若干。后被告人乙与丙联系，让丙将该菜谱寄往广东省广州市某地址。同月22日，被告人在该地签收邮件后被当场抓获。被告人与辩护人都坚称主观上不明知包裹内藏有毒品，现有证据不能证明被告人就是包裹的所有人或接收人。该案依照现有证据能否认定被告人成立走私毒品罪？ 犯罪构成与诉讼证明是刑事实体法与刑事程序法的交叉领域，而主观要件明知的证明与推定是其中的重要内容。毒品类犯罪的成立要求行为人明知走私、贩卖、制造、运输、持有的对象是毒品，犯罪嫌疑人、被告人主观心态最直接的证明方式就是犯罪嫌疑人、被告人的供述，但在行为人否认“明知是毒品”的情况下，检控机关无疑面临巨大的诉讼风险，2009年至2011年间，云南省有30多件箱包藏毒案件未作犯罪处。【1】这也成为辩护律师辩护的有利争点。 二、毒品犯罪明知的基本要义     （一）何谓“明知”？ 明知是一种心理事实，从刑法角度，行为人的主观明知是指行为人对自身行为性质、行为客体、行为结果以及某些特定事实的自我认知。在我国犯罪论体系中，明知是犯罪故意的认识因素，是一切故意犯罪成立必须具备的主观要件。刑事立法中的明知可分为刑法总则中的明知与刑法分则中的明知。我国刑法第14条为刑法总则“明知”的规定，刑法总则的“明知”包含明知危害社会的结果必然发生与可能发生，并不仅体现在直接故意，间接故意之中也可能存在明知。我国刑法分则中亦规定大量的“明知”，截止目前共涉及36个条文、41个罪名。明知有别于明知认定，正如学者所言，明知是行为人对犯罪构成事实的一种认知状态，而非他人对行为人认识状态的判断。【2】我国刑法第14条中的“明知”即为行为人对自身犯罪构成事实的明知，而明知认定则是司法人员从刑事司法角度对行为人主观认识状态的认知，具体可通过证明明知与推定明知加以实现。明知与明知认定分属不同领域，两者相互独立，明知是明知认定的基础。 （二）毒品犯罪明知的内容 明知的内容主要包含两个层面：一是行为人对客观构成要件事实的明知，二是行为人对行为实质违法性的明知。囿于构成要件事实由诸多构成要件要素组合而成，明知还可分为对描述的构成要件要素的明知和对规范的构成要件要素的明知。描述的构成要件要素是对构成要件事实的简单描述，明确、具体，无需法官加以价值评价，一般人在感知客观构成要件事实的同时就能对行为的社会意义与实质违法性加以判断。毒品犯罪要求行为人认识到行为对象是毒品属于对描述的构成要件要素的明知。刑法理论界的通说观点认为，毒品犯罪的成立，只要求行为人认识到是毒品即可，并不要求行为人具体认识毒品的名称、化学成分以及效用等具体性质。【3】也有学者认为，行为人对毒品的认知应当涵盖其本质属性，具体而言就是明知毒品的种类。【4】 本文认为，行为人只要认识到行为对象是毒品，不是其他违禁品就可成为明知。首先，随着新型毒品的不断涌现，行为人对毒品物质属性的认知难度逐渐增加，以致很难判断自身接触的到底是何种类型的毒品。其次，依照刑法第357条规定，毒品是指鸦片、海洛因、甲基苯丙胺(冰毒)、吗啡、大麻、可卡因以及国家规定管制的其他能够使人形成瘾癖的麻醉药品和精神药品。毒品的范围十分广泛，如若要求行为人认识到毒品的具体类型，会使毒品犯罪的犯罪圈过于狭窄。再次，依照刑法规定，毒品的具体类型并不影响毒品犯罪的成立。因而，行为人只需认识到是毒品，而无需认识到具体是哪一种类型的毒品，就可认定对毒品的明知。 （三）毒品犯罪明知的程度认定 明知的程度是指行为人对客观构成要件事实的认知程度。明知程度的认定是司法人员是通过证明或者推定得出行为人对构成要件事实认知程度的结论。我国刑法理论针对明知的程度认定主要有三种观点：其一，确定性说，该观点认为明知只能表现为是行为人的确定性认识，而不能是可能性认识【4】。其二，可能性说，该观点主张不管行为人认识到肯定是毒品，还是认识到可能是毒品，都属于认识到是毒品，不影响犯罪的成立【5】。其三，确定性+可能性说，该观点将明知根据认识程度，划分为“明确知道”与“可能知道”【6】。 行为人的认知在“完全确信”与“完全不知”之间，包含着若干中间阶段。有学者认为，按照行为人认识程度的强弱，对于明知可以分为确知（肯定、确实的知道）、实知（事实上知道）、或知（可能知道）、应知（应当知道）4级区分。【7】上述四种明知类型中“确知”、“实知”和“或知”是司法人员通过证据加以证明的明知，如若通过直接证据或间接证据证明行为人确实知道、实际知道或者可能知道行为对象是毒品，证据达到确实、充分，排除合理怀疑的程度，即可认定为明知。 毒品犯罪司法解释和纪要中的“应当知道”，除了证明明知外，还存在推定明知。在适用推定的场合，毒品犯罪行为人对犯罪构成要件事实的明知要至少达到“应当知道”的程度。在司法认定中，行为人可能知道是毒品，但是否知道难以确定时，控诉方的证明责任无法卸除。前述案例1中，甲至少要根据运输费用、运输路线、委托人信息、交货情况以及自身经验等判断出运输的对象应当是毒品。  三、司法解释中“应当知道”的性质 我国毒品犯罪司法解释和地方司法机关制定的规范性文件大量使用了“应当知道”，如最高人民法院、最高人民检察院、公安部2007年《关于办理毒品犯罪案件适用法律若干问题的意见》（以下简称《意见》）规定了“应当知道”的八种情形。2008年最高人民法院《全国部分法院审理毒品犯罪案件工作座谈会纪要》将“明知”是毒品的情形扩展至十种。最高人民法院、最高人民检察院、公安部《关于办理走私、非法买卖麻黄碱类复方制剂等刑事案件适用法律若干问题的意见》对犯罪嫌疑人、被告人主观明知的认定作出规定，进一步将“此前是否实施过违法行为”作为重点考虑因素。但是主观明知的认定在司法适用中仍存在诸多疑难。 针对前述司法解释和纪要中“应当知道”的性质，主要有以下几种观点：一是认为司法解释和纪要中规定的是主观明知推定规则。【8】二是认为除第一种和第八种情形外，都不属于推定，而属于结合客观事实就可以判断行为人实际上知道自己走私、贩卖、运输、持有的是毒品。【9】此处司法解释中的“应当知道”与过失犯罪中的“应知而不知”无关，“应当知道”是基于解决实践中主观明知的证明难题而设置的一种司法认定的明知，实质上包含了证明明知与推定明知。司法解释中的第八项“其他有证据足以证明被告人应当知道的”，属于运用证据证明的明知；司法解释和纪要中“应当知道”的其他情形属于刑事推定，但相关情形的表述，大多数可以作为证明主观明知的证据。原因在于：刑事推定是在对待证事实缺乏证据加以证明时，基于已经得到证明的基础事实，根据基础事实与待证事实间的常态联系，而推定待证事实存在。所谓的推定明知，是指只要能够证明客观基础事实存在，即可推定行为人成立明知，而无须具体的推论过程。司法解释和纪要中列举的情形属于案件中的客观基础事实，在具备这些客观基础事实情况下，行为人明知是毒品的概率较大，故而推定其主观是明知的。刑事案件中，行为人的主观心态较之客观事实，更难以证明。因此，行为人主观构成要件要素的推定（主要为明知推定）在刑事推定中占有重要比例。 刑事推定与间接证明的主要区别在于证明责任的承担，主张成立推定检控方只要证明基础事实存在，证明责任即倒置于被告方；主张间接证明则在符合基础事实条件下，检控方仍应对行为人的主观明知用证据加以证明。明知推定是刑事政策在犯罪主观领域内的体现，在明知的认定中具有作为空间。刑法要在法益保护与人权保障之间加以平衡，刑事明知推定的范围必须严格限定，应仅限于检控机关证明极为困难，而刑事政策又重点打击的犯罪。因而，司法实践应严格界分证明明知与推定明知，坚持以证明明知为常态，以推定明知为例外，并对明知推定谨慎为之。 四、证明明知在毒品犯罪中的适用 传统刑法理论坚持责任主义，责任的成立以行为人的主观罪过为基础，行为人对客观构成要件要素要有明知。证明明知是证明主体通过被告人供述、证人证言、物证、书证、鉴定意见等证据对行为人是否明知这一待证事实加以证明。刑事诉讼中由控方承担证明被告人有罪的责任，是否存在明知，也需要由控方证明，当无法确定行为人是否明知时，根据存疑有利于被告的原则，法官应作出无罪判决。刑事司法大多数的明知认定属于证明明知。司法解释中的“确知”与“实知”均应当属于证明明知，需要控方举证加以证明，无论是用直接证据还是间接证据证明明知，均应达到排除合理怀疑的证明标准。毒品犯罪案件中，亦应以证明明知为主，附之以推定明知，在适用推定情形下对于基础事实本身必须要运用证据证明。 上述案例2网络包裹案虽然在邮寄的包裹中发现毒品，但其并不属于司法解释和纪要规定的“应当知道”情形，本案中没有被告人供述、证人证言等直接证据，故而需要通过间接证据完成对明知的证明。   间接证据   嫌疑人辩解 1.被告人2月22日在广州市某地址收取涉案邮包。 2.手机通话记录、短信等证明自称Micheal的人与丙联系，Micheal要丙将所接收从巴西邮寄包裹中像书一样的物品邮寄到广州市某地址。 3.笔记本电脑内查询快递单号的上网记录显示，被告人多次查询过涉案快递单号，最早查询时间早于被告人供述的朋友让其代取包裹的时间。 4.被告人处查获的笔记本记载了张某及其公司信息、电话。 5.被告人在农行ATM机上汇款200元给张某，并将打款的银行凭条发给上线，上线将凭条以邮件方式发给张某。 其朋友AKIM让其代收包裹，收取包裹只有一次； 其朋友AKIM、SUNDAY让其汇款200元； 对笔记本电脑内查询快递的记录不知情； 手机系案发前一天晚上AKIM给其的。   本案中上述关于被告人客观行为的间接证据能够形成完整的证据链条，实现对被告人明知的证明，而被告人的辩解又无法形成合理解释，故而，能够认定被告人成

2021-12-31

On the Punitive Damages System of Intellectual Property Infringement

Abstract: The system of punitive damages is an important system in China's intellectual property law system, which plays a positive role in making up for the loss of the victim, punishing and curbing the infringement. The "Civil Code" raises "punitive damages" to the height of the law. Under the objective conditions that it is difficult to prove the losses involved in intellectual property infringement litigation, it can be said to give the right holders a reassurance to protect their rights. Keywords: punitive damages intellectual property infringement damages On the Definition of Punitive Damages Punitive damages, usually also known as "exemplary compensation" or "retaliatory compensation", are generally used in intellectual property infringement litigation. Specifically, the amount of compensation made by the defendant according to the actual situation of the case during the trial of the case exceeds the plaintiff's actual loss, and the amount of compensation awarded to the defendant can be regarded as punitive damages. 2. Analysis of the Current Situation of Intellectual Property Infringement Compensation in China Before the implementation of the Civil Code, whether in the theoretical or practical circles, as far as intellectual property infringement compensation is concerned, the "fill-in system" compensation is often adopted, that is to say, when the right holder receives damage, the compensation obtained through litigation can at most make up for the losses he has suffered, and the right holder cannot and has no right to profit from infringement litigation. In intellectual property infringement litigation, the determination of the amount of loss has always been a difficult problem in front of the right holder. In the trial of such cases, the court is often unable to prove the actual amount of loss suffered by the right holder, and can only decide below the statutory compensation limit. Compared with other infringements, the amount of compensation for intellectual property infringement is obviously uncertain, and with the diversification of infringement means, the damage of infringement is getting higher and higher. The amount of compensation under the statutory amount of compensation has become increasingly unable to compensate for the loss of the right holder, especially the loss of market share and the adverse loss suffered by the brand, which cannot be calculated in a specific amount. The illegal cost is far lower than the illegal income, and the infringement of intellectual property rights will become more and more serious, which has gradually become an important factor that can not be ignored in China's economic development, and even an important excuse for some countries in the world to attack our country. The formal implementation of the Civil Code has brought a turning point to solve this difficult problem. First, it is clearly stated in the General Provisions that the way to bear civil liability is "punitive damages" [1]. Second, Article 1,185 [2] of the sub-rule makes it clear that punitive damages are applicable to intellectual property infringement. This is China's clear that the provision that "punitive damages" can be requested when assuming tort liability in the field of intellectual property has been raised to the legal level, it indicates that punitive damages have achieved "full coverage" in intellectual property cases ". It can be said that the establishment of intellectual property infringement compensation in China has entered a new era. 3. Analysis of the Necessity of Establishing Punitive Damages for Intellectual Property Infringement in China 1. Based on the need to combat infringement and purify the market environment With the rapid development of technology, the infringing party through the continuous compression of costs, its through the production and sale of counterfeit goods to obtain high profits is much higher than the amount of compensation awarded by the court, it can be said that the infringing party due to infringement will not only be damaged, but can be based on this profit, so as to repeatedly and repeatedly infringe. Through the application of punitive damages, can play a certain deterrent effect on the infringer, so that the infringer to pay a high cost of infringement, to avoid re-offending, so as to achieve the effect of purifying the market environment. Based on the need to encourage rights holders to safeguard their rights and build a good social order In practice, because the right holders often cannot get compensation or infringement compensation in time and in full, the cost of rights protection is getting higher and higher. Many right holders often feel that the rights protection behavior is not worth the loss, and even lose confidence in the entire judicial system of our country. The forced choice to tolerate or even let it happen has seriously damaged the social order of our country. By applying punitive damages and increasing the compensation obtained by the right holders for infringement, it can not only improve the enthusiasm of the right holders to protect their rights, but also promote the improvement of legal prestige and the formation of a good social order. The Specific Application of Punitive Damages System of 4. Intellectual Property Infringement in China's Judicial Practice (I) the relevant provisions of punitive damages in the current legal system of our country. In addition to the "punitive damages" system provided for in the Civil Code, there are similar provisions on "punitive damages" in the separate law on intellectual property rights, as detailed in Article 63 of the Trademark Law, Article 17 of the Anti-Unfair Competition Law, Article 71 of the Patent Law and Article 54 of the Copyright Law. Applicable Conditions of Punitive Damages for (II) Intellectual Property Infringement Different from the traditional compensatory damages, the main feature of punitive damages is its "punitive", that is, it is far from enough to compensate the obligee for the losses suffered. The key is to punish the infringer, and to a certain extent deter potential infringers and strangle the infringement in the cradle as soon as possible. Therefore, in the specific application of the punitive damages system of intellectual property infringement, the conditions of its application should be strictly limited, and the application should not be expanded at will, contrary to the original intention of establishing the system. The Interpretation on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights (hereinafter referred to as the "Interpretation") issued by the Supreme People's Court on March 3, 2021 provides a more authoritative operational guideline on how to apply punitive damages in judicial trials. Combined with the relevant provisions of the judicial interpretation, the author believes that the applicable conditions of punitive damages should cover the following points: 1. There is an objective fact of damage. The author believes that the fact of damage has a dual meaning, one is that there is a tort, and the other is that the tort damages the legitimate rights and interests of the obligee, which includes not only personal rights and interests, but also property rights and other legitimate rights and interests. In other words, punitive damages may only be involved when there is an objective fact of damage, and punitive damages cannot be applied to the preparatory act of infringement that is about to be implemented. For the preparatory act of infringement, the right holder may seek additional relief, including applying to the court for an injunction or property preservation. 2. The infringer has the subjective malice of infringement, which is mainly manifested as intentional. From the perspective of the emergence and development of the punitive damages system and relevant foreign experience, punitive damages have the direct purpose of increasing the liability for compensation, and the ultimate goal is to punish the infringer and deter other potential infringers. Therefore, the application of the punitive damages system must be limited to intentional infringement, otherwise, it is very likely to impose excessive liability on the infringer, thus overcorrecting it. The infringer is subjectively intentional infringement, that is, the infringer knowingly does it intentionally knowing that his actions will infringe upon the intellectual property rights of others. 3. Punitive damages can only be applied if the circumstances are serious. The combination of the serious subjective malicious circumstances can make the punitive damages uniform play its due role, which will not improperly increase the infringer's liability for compensation, but also can achieve "punishment as its rule". According to relevant regulations, punitive damages are generally 1-5 times of damages for the infringer's infringement. If the infringement does not reach the serious standard, the amount of loss involved in the case is not high, even if the top five times of punitive damages are applied. The amount of damages can not serve as a deterrent to the infringer, nor can it play the ultimate goal of the system to curb infringement. As for the standard of "serious circumstances", Article 4 of the interpretation has been listed in detail and will not be repeated. (III) Criteria for Determining the Amount of Punitive Damages For the punitive damages system, the determination of the specific amount of compensation can be said to be the most important in the application of the system. If it is too high, it may excessively increase the liability of the infringer, and if it is too low, it may not be able to serve the purpose of punishment. Therefore, it is necessary to make corresponding legislative provisions on the criteria for determining the amount of punitive damages in order to avoid excessive discretion of judges and thus affect the fairness of judicial decisions. Although the current "Trademark Law", "Patent Law", "Copyright Law" and "Anti-Unfair Competition Law" all set punitive damages to more than one time and less than five times, there are still ambiguities in practice. There are disputes when the right holder requests punitive damages in intellectual property infringement litigation. Article 5 [3] of the "Interpretation" provides corresponding provisions on the calculation criteria for punitive damages, but the author believes that there are still the following points that need to be paid attention to in practical application: 1. On the basis of compensation According to the provisions of Article 5 of the interpretation, the compensation base shall comprehensively consider the actual loss of the obligee, the illegal income of the infringer and the license fee of the right. It should be noted that the reasonable cost of defending the rights of the right holder should be excluded when determining the compensation base. 2. About multiples According to the provisions of Article 6 of the "Interpretation", when determining the multiple of compensation, the severity of the infringement and the subjective malice of the infringer should be comprehensively considered, and the multiple limit under the law should be comprehensively determined. 3. Calculation method: "base * multiple reasonable rights costs" Application Effect of (IV) Punitive Damages System in Intellectual Property Litigation in China The "MOTR" trademark infringement dispute case, which was selected as one of the top 10 intellectual property cases in China's courts in 2019, is a typical case of punitive damages in intellectual property infringement litigation in China. The judgment reflects the firm confidence of the people's court to crack down on malicious infringement such as repeated infringement and continuous infringement, and to increase the punishment for infringement. After the judgment of the case, it has been highly praised by all walks of life. The Legal Daily even published an article on the front page with the headline "Reflecting China's'Great Power' in the context of the trade war", saying that the judgment of this case reflects China's crackdown. The determination of intellectual property crimes also reflects China's confidence in creating a good business environment. From this point of view, since the implementation of the "punitive damages" system in China, it has gained good legal and social effects, and has been well received by all walks of life at home and abroad. With the further clarification of relevant regulations, detailed rules and judicial interpretations, the increase in the number of applicable cases tried by the people's courts will inevitably curb the high incidence of intellectual property infringement cases and benefit the construction of the socialist rule of law in my country. Note:[1] Article 179 of the Civil Code "Where the law provides for punitive damages, follow its provisions." [2] Article 1,185 of the Civil Code "If the infringement of the intellectual property rights of others is intentional and the circumstances are serious, the infringed shall have the right to claim corresponding punitive damages." [3] Article 5 of the Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights states that "when determining the amount of punitive damages, the people's court shall, in accordance with relevant laws, take the actual amount of the plaintiff's loss, the amount of the defendant's illegal gains or the benefits obtained from infringement as the calculation base. The basis does not include the reasonable expenses paid by the plaintiff to stop the infringement. If it is difficult to calculate the actual amount of loss, the amount of illegal gains and the benefits obtained as a result of infringement as mentioned in the preceding paragraph, the people's court shall reasonably determine the amount of punitive damages by reference to the multiple of the license fee of the right in accordance with the law." References:[1] Baidu Encyclopedia: Punitive Damages Entry https://baike.baidu.com/item/惩罚性赔偿/10154579?fr=aladdin [2] Li Mingde, American Intellectual Property Law-2nd Edition Law Press 2014.4 ,P614-615 [3] Yang Lixin. Tort Law [M]. Beijing: People's Court Press, 2004:159. [4] Shanghai Pudong New Area People's Court (2018) Shanghai 0115 Minchu No. 53351 Civil Judgment [5] https://www.sohu.com/a/414310802_99895431 of "Shanghai's First Punitive Compensation Dispute for Intellectual Property Infringement" [6] Qian Yuwen, Luo Fulin, "On Punitive Damages in China's Intellectual Property Law", Journal of Law, 2009 [7] Shi Ling and Wang Yingjun, "Application of Punitive Damages System in the Field of Intellectual Property Law in China", in Tianjin Law, No. 1, 2012

2021-12-31

Lawyer Li Heng donates books to Zhongnan University of Economics and Law

Recently, lawyer Li Heng, deputy director, senior partner of Zhongcheng Qingtai (Jinan) Law Firm and president of Zhongcheng Qingtai Law Research Institute, donated the monograph "Construction Engineering Law: legal system and practical skills" (third edition) to the library of Zhongnan University of Economics and Law and the library of the Law School, he has participated in a total of 60 books such as "China Construction Contract Law Complete Book-Entry Interpretation and Practical Guidelines" (Second Edition), "Guidelines for Disputes over Construction Project General Contracting Contracts" and so on. Lawyer Li Heng, graduated from Zhongnan University of Political Science and Law (now Zhongnan University of Economics and Law) in 1999, majoring in economic law, first-class lawyer, serving as an expert of the Supreme People's Procuratorate Civil Administrative Prosecution Expert Consultation Network, a member of the Construction Engineering and Real Estate Professional Committee of the National Lawyers Association, China Mediator and expert of the Legal Service Working Committee of the Construction Industry Association, chairman and secretary-general of the Engineering Legal Affairs and Commerce Committee of the Shandong Construction Industry Association. Li Heng lawyer has a high theoretical level and rich practical experience, especially good at real estate, construction engineering, land law business, is the industry has a good reputation in the field of construction engineering, real estate and related legal practice experts. Curator Cheng Fang expressed his heartfelt thanks to lawyer Li Heng and said that the book donated by lawyer Li Heng not only enriched the resources and collection of the library, but also entrusted the good feelings of alumni to think about the source of drinking water and be grateful to their alma mater. It is an important and special source of literature in the library collection system.

2021-12-31