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Different central regulatory authorities have issued guidelines or guidelines for corporate compliance in many areas. These guidelines and guidelines have established "Chinese standards" for the establishment of a comprehensive compliance system for enterprises ". In the process of building a comprehensive compliance management system, some enterprises take it for granted to overthrow the original old system, rebuild a large and comprehensive static management system, and solve the compliance problem overnight. This approach is easy to cause repeated construction and waste of management resources. If the newly established compliance system cannot be well integrated with the original operating system of the enterprise, it will inevitably cause the comprehensive compliance system to become a decoration and cannot provide effective protection for the healthy and stable development of the enterprise. Guaranteed. Others think that simply changing brands and making a few personnel adjustments is the completion of the compliance system architecture. This paper-based compliance organizational structure, which is forced by the pressure of the regulatory authorities and passively copied according to the guidelines or guidelines, cannot truly embed the compliance requirements into the daily operation process of the enterprise, resulting in the construction of the entire compliance system becoming a mere formality and unable to operate effectively within the enterprise. Therefore, the establishment of the organizational structure of the compliance system is not only an important part of the comprehensive compliance management system, but also the cornerstone of the effective operation of various compliance work. 1. the basic principles of building a comprehensive compliance management system The principle of comprehensive coverage. Compliance should cover all business areas, departments, subsidiaries and branches at all levels and all staff of the enterprise, and run through the whole process of decision-making, implementation and supervision. Adhering to the principle of comprehensive coverage, it is necessary to ensure that information is unblocked from top to bottom, not only to make orders, but also to ensure that the compliance work at the end can be transmitted to the highest level. 2. Strengthen the principle of responsibility. Strengthen compliance management as an important responsibility of the main person in charge of the enterprise, establish a full compliance responsibility system, clarify the compliance responsibilities of managers and all employees, and supervise the implementation. The compliance management department should have a high status and authority within the enterprise and is not dependent on the business management department or the financial department. 3. The principle of collaborative linkage. Compliance management should be integrated with legal risk prevention, supervision, audit, internal control and risk management to ensure the effective operation of the compliance management system. The principle of objective independence. The enterprise and employees shall be objectively evaluated and dealt with in strict accordance with the law, and the compliance management department shall perform its duties independently without interference from other departments and personnel. Business departments and finance departments and their personnel cannot concurrently serve as compliance managers and intervene in compliance management to ensure that the compliance system does not have any conflict of interest with the business activities and financial management activities of the enterprise. Enterprises should allocate compliance professionals and compliance funds in line with compliance management for compliance departments, and invest sufficient human and material resources. 2. a model for building a comprehensive compliance management system architecture The organizational structure of a comprehensive compliance system can generally be divided into three levels: governance, management and executive, which generally include the compliance management committee, the chief compliance officer, the compliance department, and the compliance department and compliance team. According to the "Guidelines for Compliance Management of Central Enterprises (Trial)", seven departments in an enterprise have compliance management responsibilities and should be included in the framework of the compliance management system. 1. The Board of Directors is responsible for approving the strategic plan, system and annual report of compliance management; improving the compliance management system; deciding on the appointment and removal of the person in charge of compliance management; deciding on the establishment and functions of the lead department for compliance management; deciding on major matters of compliance management; and deciding to deal with violators in accordance with their authority. 2. The Supervisory Board is responsible for overseeing the decisions and processes of the Board of Directors; overseeing the compliance performance of directors and senior management; proposing the removal of directors and senior management who pose significant compliance risks; and proposing to the Board of Directors the removal of the person in charge of the Company's compliance management. 3. According to the decision of the board of directors, the management level shall establish and improve the organizational structure of compliance management; Approve the compliance management system; Approve the compliance management plan; Ensure that the compliance system is effectively implemented; Clarify the compliance management process; Ensure that compliance requirements are integrated into the business field; Stop and correct non-compliant business behaviors in a timely manner; According to the authority, the violators shall be held accountable. 4. Central enterprises set up compliance committees to undertake the organization, leadership and overall coordination of compliance management, hold regular meetings, study and decide on major matters of compliance management, and guide, supervise and evaluate compliance management. 5. The relevant person in charge or general counsel of the central enterprise shall serve as the person in charge of compliance management, and his responsibilities include: organizing the formulation of compliance management strategic plan; Participate in major decisions of the enterprise and put forward compliance opinions; Lead the compliance management lead department to carry out work; Report major matters of compliance management to the chairman and general manager; Organize the drafting of the annual report on compliance management. 6. Legal affairs agencies or other relevant agencies are compliance management departments: study and formulate compliance management plans and basic systems; continue to pay attention to changes in laws and regulations, organize compliance inspections and assessments, and conduct compliance evaluations on systems and processes, Order rectification and continuous improvement of violations; accept reports of violations, organize or participate in investigations of violations, and put forward handling suggestions; organize or assist business department and HR department to carry out compliance training. 7. The business department of the enterprise is responsible for the daily compliance management in this field, and organizes, coordinates and supervises the compliance management in this business field. It is necessary for enterprises to build a comprehensive compliance management system framework for enterprises to carry out compliance work. There is no standard answer as to which department will undertake the compliance function, how to divide the scope of authority between these departments, and which authority configuration is more efficient. Hunan Construction Engineering Group and Dongfang Electric Company are the earliest companies in China to build a comprehensive compliance system, and both have achieved good results. Now the construction of the compliance management system structure of the two companies is briefly introduced to provide reference. Hunan Construction Engineering Group has established an Integrity Compliance Committee directly under the board of directors. The secretary of the Group's Disciplinary Committee serves as the head of the committee, and the main senior management of the group is a member of the committee. The Group has appointed a Chief Compliance Officer, which is also held by the Group's General Counsel. The Group has set up a compliance department, which has transferred the compliance function to the former Legal Affairs Department, whose name has been changed to Legal Compliance Department. The Legal and Compliance Department has a Compliance Division, which is responsible for the establishment and implementation of the Group's integrity and compliance system. There are a number of compliance officers under the Legal Compliance Department. The Group has established a compliance organization system framed by the Compliance Committee, the Chief Compliance Officer, the Group Legal Compliance Department and the Legal Compliance Department of each unit. Dongfang Electric Company has established a top-level design of compliance management with the structure of "Board of Directors-Strategy, Investment and Risk Management Committee-Company Management-General Counsel. As the Chief Compliance Officer, the Group's General Counsel is responsible for researching and formulating the company's compliance policy and overseeing the implementation of the management compliance culture and compliance system. The Legal Audit Department is the compliance management department, which is fully responsible for the implementation of the company's specific compliance work, including the formulation of basic compliance management system, compliance review system for major issues, compliance evaluation and compliance training. In addition, the Discipline Inspection and Supervision Department is used as a special management department to be responsible for the investigation and handling of violations, and other departments of the company and affiliated enterprises are directly responsible departments to build a complete compliance organization structure. The Role of 3. Lawyers in Building a Comprehensive Compliance Management System In the early stage of compliance business, compliance lawyers habitually carry out "case source thinking". They still regard traditional business such as contract review and labor handling as their advantages. They are used to participating in legal service work only when the parties have litigation disputes. They lack all-round understanding and control of the legal risks faced by customers. However, in the foreseeable future, with the diversified and refined legal needs of enterprises in the field of compliance, compliance lawyers must establish "customer thinking". The service content should not only cover multiple compliance fields, but also meet the business characteristics and actual needs of enterprises. In terms of building a compliance system framework, compliance lawyers should be familiar with the operation rules of the enterprise, understand the internal organizational structure of the enterprise, cooperate with the business departments of the enterprise, understand the actual needs of the enterprise, pay attention to the whole process of the enterprise from decision-making, implementation to supervision and assessment, covering multiple stages such as research, evaluation, improvement and implementation, and effectively integrate compliance work with enterprise operation. In the process of providing compliance legal services, compliance lawyers must constantly change their roles and combine the independence and professionalism of lawyers with the nature and characteristics of the enterprise. In addition to professional legal knowledge, they also need to have certain communication skills. During the development of specific projects, they must actively communicate with clients, establish a weekly or monthly work report system, regularly submit work results, and continuously improve work methods, implement compliance risk assessment, control, formulation and response of compliance measures to ensure that the progress of the project and the content of various tasks meet customer expectations. Let the compliance system really work within the enterprise and form a long-term mechanism. Most enterprises in China have an extremely complicated management system. In addition to the general board of directors, management and board of supervisors, there are also multiple departments responsible for supervision, such as risk control, audit, legal affairs, discipline inspection and supervision, and the functional orientation of compliance departments is still vague. When building the organizational structure of the compliance system, an enterprise should proceed from reality, combine the industry type, characteristics and unique operation mode of the enterprise, and establish a set of organizational structure in line with its own characteristics, so as to provide a good foundation and guarantee for the operation of the compliance management system.
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2021-12
Viewpoint | On the Exercise of Owners' Membership Rights
内容摘要：改革开放以来，社会积攒了大量的财富促使各行各业快速发展，国民的物质需求在不断增加，尤其是对住房的需求。为满足国民的这一需求，城市房地产业快速崛起并占领了市场。但是也由此引发了人地矛盾的激化，面对这一矛盾，城市的住房开始由最开始的横向发展转变为向纵向发展，这种向高层化发展的情况，使得人们居住的越来越集中。 在2007年颁布的《物权法》中关于建筑物区分所有权有一项重要创举，那就是在我国首次在法律中提出该概念。然而，虽然《物权法》对此能够有此规定已经是具有深远的意义，但成员权并没有被普通大众所熟知。另外物权法对成员权的规定也比较笼统，在实际审判中不能直接照搬法条，不然将引发更多别的问题。因此，为解决以上问题，本文将分析成员权行使中存在的法律问题，并提出自己的看法。 关键词：业主成员权，业主，业主大会，业主委员会 一、小区业主成员权概述 （一）小区业主成员权的概念 目前，当今世界对于成员权并没有形成通说，学术界也存在着多种不同的认识。但是，这些不同的认识之中大致可以分为三种学说，它们分别是：一元论、二元论和三元论。首先，目前世界上持一元论的学者所占数量比较少，主要是因为一元论主张建筑物区分所有权可分为“专有权说”或者“共有权说” 这就表现出一元论局限性比较强、经不起推敲、与实际生活不贴合等的缺点。在当今学术界，持二元论和三元论的学者比较多，因两者引发的争议也比较多。持二元论的学者认为，建筑物区分所有权不仅包括各个业主对专有部分的专有权，还包括业主对共有部分的持份权，这种主张就将二元论与一元论彻底区分开来。而持三元论的学者则认为，除了二元论学者提出的专有权和持份权，建筑物区分所有权还应当包括因为业主的共同关系所产生的成员权。 就此，笔者赞成三元论的说法。笔者认为要想全面系统的给建筑物区分所有权下定义，必须要先承认建筑物区分所有权包含专有权、共有权与成员权这三项权利。另外，笔者认为，在探讨业主成员权的概念之前，首先要确定一点，那就是成员权是一种私权；同时，它既包含程序性权利的特点又包含实体性权利的特点，可以称之为新型权利。另外，成员权不能被建筑物区分所有权中的共有权所包括。建筑物区分所有权中的共有权，所体现的是一种财产法律关系，而成员权作为一项独立的权利，不仅包括财产关系，它更多的还是一种管理关系，这与传统以专有与共有部分为中心不同。因此，承认成员权的存在，对目前法律界解决实务问题具有重要意义。 （二）小区业主成员权的行使与实现形式 目前，小区业主,一般都是通过创立业主大会或业主委员会来代替其管理小区具体事务，同时全体业主有权监督业主委员会或业主大会，一旦业主大会或者业主委员会作出的决议损害业主权益，业主有权通过管理规约或者法律途径进行救济。 1.业主大会——业主成员权行使的决策机构 （1）业主大会的职责 业主大会由小区全体业主共同组成，同时受物业所在地的区、县人民政府房地产行政主管部门的指导，对关系到业主共同利益的事项进行决议。由业主大会选举产生业主委员会，业主委员会受业主大会监督。另外，业主大会的主要职责有：制定业主规约；选举、解聘业主委员会和物业管理企业；管理公共维修资金等。 （2）业主大会的决议方法 小区业主通过业主大会实现民主自治，通过业主大会及业主委员会行使自己的成员权。实际生活中，全体业主的意见很难达成一致。因此，在业主大会的决议机制上，我国目前采用的是“二重多数决”。根据《民法典》第二百七十八条的规定：“业主共同决定事项，应当由专有部分面积占比三分之二以上的业主且人数占比三分之二以上的业主参与表决。决定前款第六项至第八项规定的事项，应当经参与表决专有部分面积四分之三以上的业主且参与表决人数四分之三以上的业主同意。决定前款其他事项，应当经参与表决专有部分面积过半数的业主且参与表决人数过半数的业主同意。”。从以上规定可以看出，对于重大事项比如维修资金的使用等采取特别表决方式，即须双重三分之二参与表决，参与表决的双重四分之三同意。而对于一般事项比如选聘物业服务企业等则采取双重三分之二参与表决，参与表决的双重过半同意的规则。 2.业主委员会——业主成员权行使的执行机构 业主大会产生在先，业主委员会产生在后。业主委员会由全体业主通过业主大会选举而产生。因此，召开业主大会是业主委员会产生的前提。一般小区的管理是由业主委员会负责，业主委员会掌握大权。这样的操作模式存在着很多的弊端，现在，我国采用的是业主大会和业主委员会并存的管理模式,这样的管理模式一改之前的由单一的业主委员会管理的模式的弊端，其益处在近些年来也显现出来。 二、我国小区业主成员权行使存在的法律问题 （一）业主大会召开困难 业主成员权主要是业主通过参加业主大会来行使，因此业主大会的顺利召开是业主维护自己利益的前提。但是由于众多原因，在实践中，很多小区还长期存在着从来没有召开过业主大会的情况，不解决此种情况，喊保护业主权益的口号就是无稽之谈。那么，具体阻碍业主大会召开的原因，据分析如下： 第一，由于业主大会产生在先，业主委员会产生在后，因此首次召开业主大会时，还没有业主委员会。虽然《物业管理条例》第九条规定“召集业主大会会议”是业主委员会的职责之一，但在出现缺乏业主委员会这一组织者的情形时，如何召开首次业主大会，各地规定不一。一般情况下，在我国大多数地区是规定由房地产开放商组织召开业主大会。但是，房地产开发商为了掌握着物业管理的权利，很多情况下是不愿意召开业主大会的，或者存在一些房地产开发商故意阻挠或者拖延时间，导致首次业主大会无法顺利召开的情形。 第二，虽然改革开放以来，国民的民主意识得到了大大的提高，但是由于成员权的出现也是由于人们越来越集中的居住在同一栋建筑物里，这段时间尚短。很多业主尚不知道自己拥有成员权，当然就更不可能知道如何行使成员权。而且，由于要承担一些管理费用，业主们参与管理的积极性也大大降低了。另外，业主之间并无太多交集，缺乏团结的基础，即便居住对门，但是不了解对门邻居的情况非常普遍。而且现代人对不关乎自己切身利益的事情，通常情况下也表现的比较冷漠。这些都是业主参与管理积极性低的原因。 第三，2007年《物权法》首次将建筑物区分所有权在立法上予以承认，现今《民法典》第六章再次确定了业主的建筑物区分所有权，虽然在一定程度上确定了业主共有的范围，但全国各个地方均存在既成事实难以一刀切的情况，操作难度较大。而且，各个地方关于第一次召开业主大会的规定又不相同，甚至存在开发商拖延召开、同化业主代表等违规行为，操作起来就更加繁琐。 根据上述分析，我们得知，业主大会的顺利召开是小区业主行使成员权的第一步，但是实际生活中召开业主大会会遇到多方障碍。业主要想实现民主自治，第一步就是要召开业主大会。虽然将所有的管理工作都由业主大会来负责，这一想法并不现实；但是业主大会是处理物业管理工作的前提。 （二）业主大会表决机制不完善 小区业主通过业主大会表达自己的意志，每位业主都希望能够通过业主大会能够维护自己的权益，因此表决机制的制定就显得尤为重要。表决机制包括表决方法和表决权的计算。业主大会通常采用的是通过全体业主投票的方式来进行表决。目前关于投票权的计算与分配,每个国家都不一样,目前主要存在四种方式。第一,采用一人一票制。此种方法是按照拥有的专有部分的具体数量来分配投票券,瑞士、德国及我国台湾地区这些民主制度的地区和国家大都采用此种方法。第二,根据建筑物所有权比例来分配投票权。日本和法国多采用这种方式。第三,按照各个业主拥有房屋数量来分配投票权。美国主要采用这种方式。第四,根据业主拥有的住宅的建筑面积大小来分配投票权。 由上所知，建筑物区分所有权的计算方法主要分为两种，分别为按业主人数，以及建筑物所占比例。这两种方法各有利弊。一方面，当各单位面积大体相同的情况下，采用第一种计算方法就比较合理。但是一旦各单位面积相差较大的情况下，面积较大的一方就会认为采用此种方法不公平。另一方面，采用第二种方法，会出现控制份额较少的一方的业主的权益不受到保护，而仅仅听命于控制份额较多的一方的要求。如果说将开发商也看作是业主的话，假如该栋建筑物只出售总体的20%，那么意味着开发商拥有80%的投票权，那么这意味着，当对某一事项进行表决的时候，即便这20%的业主都投了支持票，如果开发商投了反对票，还是无法通过决议，会产生一票否决的情况，此时这些业主的权益也就无法得到保护。 目前，通过分析《物业管理条例》第十二条和《民法典》第二百七十八条两条规定可知我国采用的是普通多数决和特别多数决相结合的方式。这种方式看似比较合理，也成功规避了只采取一种表决方式所产生的风险。但是，此种方法却没有考虑到中国的国情。一个决议一旦被搁置，就有可能造成损失。该损失最终还是由全体业主集体承担，因此，此种方法并没对业主成员权产生实质性的保护。值得注意的是，《民法典》对于双重表决的要求比《物业管理条例》更加严格，无论是根据“上位法优于下位法”还是“新法优于旧法”，实务中应以《民法典》新规定为准。 （三）业主委员会诉讼地位不明确 关于业主委员会是否是法律主体这一问题，各国的规定各不一样。其中，承认管理团体法人地位的国家有美国、法国以及德国等，这些国家认为业主委员会属业主大会的下设机构，是具体的执行机构，是不具有法人主体资格的。 我国法律没有规定业主委员会是否有独立的民事主体资格，这项内容的缺失也会使得业主在维权时遇到诸多问题。 （四）业主自治监督机制不完善 业主大会作为业主行使成员权的决策机构，是权力机关；而业主委员会是业主大会的具体执行机关。他们都有全体业主赋予他们的权力。但是我们都知道权力无监督就可能导致滥用权力的发生，因此需要对其进行有效的监督。 虽然我国在1994年的《城市新建住宅小区管理办法》中规定了一些监督条款，但是由于时代久远，而且相对简单笼统，对于处理现在的小区问题并没有很多实质意义。而现行法律中，虽然《民法典》第二百八十七条规定了权利救济途径，但是过于笼统，规定过于简单，并不能真正保障业主成员权的行使。虽然业主委员作为常设机构，能够对有些事项进行监督，但是由于法律并没有对其监督赋予真正的权力，所以业主委员会的监督也不是真正的监督。 三、小区业主成员权行使的清障分析 （一）完善业主大会的召开制度 1.完善业主大会的召开条件 首先，应该肯定开发商是属于业主范畴的，因为开发商是未出售房屋的所有者，当然也享有业主成员权这一权利。但是这样的规定会出现开发商怠于组织第一次业主大会的情况，这样其他业主行使成员权的途径就被扼杀了，无法保障其他业主的权利。所以，我们需要考虑首次召开业主大会的条件应为如何比较合理。笔者认为，日后完善相关法律，应该明确规定统一的首次业主大会召开的条件。目前存在一种观点是将已交付的专有部分的面积占总面积的比例作为标准，对此笔者并不十分认同。我认为，如果开发商怠于组织业主大会，只要满足其他的几个条件，程序合法，其他业主依旧可以召开业主大会。第一，已交付专有面积占建筑物总面积的50%即可举行业主大会。第二，房屋交付满两年。做此规定是因为有些小区销售情况不是很好，一直都没有达到已交付面积占总面积的50%，考虑到不能因为一直没有达到比例要求，就一直不召开业主大会。第三，有20%的业主提名要求举行业主大会。做此规定是因为，当开发商怠于召开业主大会或者也不满足第二个条件的时候，这些已交付业主的权益应当如何维护的问题。笔者认为，以上三个条件满足任意一个就可以召开业主大会。 2.规定首次业主大会的负责人 关于业主大会的负责人，目前存在很大的争议。争议最多的是业主、房地产开发商、政府有关部门。首先，新入住的业主对房屋出售情况等都不是很了解，而且新业主互相之间也不适合了解，让其作为首次业主大会的负责人显得不合情理。其次，虽然房地产开发商对整个小区的出售情况最为了解，但是现实情况中房地产开发商大多怠于组织召开业主大会，将房地产开发商作为业主大会的负责人不太合适。最后，我认为综合比较，政府有关部门作为首次业主大会负责人比较合适
2021-12-31
30
2021-12
Viewpoint... Chinese investors-host country dispute settlement mediation rules are analyzed.
Content abstract: if the normal relations between sovereign states are to be maintained completely, if the good cross-border investment environment of the host country is to be guaranteed, if the legitimate rights and interests of both parties in cross-border investment are to be maintained, and if the friendly and cooperative relations between countries are to be healthy Development, proper settlement of international investment disputes is the top priority. As a non-litigation method of dispute resolution, mediation refers to a method in which the parties to a dispute reach an agreement on the basis of mutual understanding and mutual accommodation with the help of a third party. Mediation has unique benefit value and harmonious value, has the function of saving dispute settlement cost and stabilizing cooperative relationship, and can provide the parties with a one-time opportunity to resolve disputes. By studying the application of mediation rules and procedures in current international disputes, this paper tries to make concrete suggestions in three aspects: innovating mediation rules, broadening the application of mediation rules and perfecting the implementation procedures of mediation rules. Keywords: international investment dispute settlement mediation rules BIT Overview of 1. Investor-Host State Dispute Settlement Conciliation Rules All kinds of disputes caused by the transnational investment behavior of other countries in the host country are the main forms of international investment disputes. From the main body, it can be divided into disputes between investors and host investors, disputes between investors and host countries and disputes between investor countries and host countries, and this paper mainly explores the more frequent disputes between investors and host countries. The settlement of international investment disputes mainly depends on the agreement of international investment treaties signed between countries. International investment treaties include multilateral investment treaties, bilateral investment treaties and regional investment treaties. Only the early Washington Convention specifically provided for dispute settlement in international investment disputes. Mediation as a relief procedure for the settlement of disputes is mainly manifested as: the emergence of disputes-the parties choose a third party to intervene in the dispute-the third party in accordance with certain standards and procedures to listen to the views of the parties, summarize the focus of the dispute, put forward proposals for settlement-the parties to comply with the principle of voluntary legality to make a decision. [1] In the sense of the modern rule of law, rules are restrictions on autonomy of will, but the soul of mediation lies in freedom and has an "anti-procedural appearance" [2], and while mediation is usually conducive to "open disclosure", it is not an inevitable shortcut to substantive justice. Mediation rules, on the other hand, are standards or principles established by authority and observed; or general standards that prescribe or guide conduct or activity in a particular situation. [3] Therefore, as the carrier of mediation procedure, mediation rules are of great research value, and China can improve the mediation rules in the investor-host country dispute settlement mechanism. Conciliation rules have a more arbitrary appearance than litigation or arbitration rules, which is determined by consensual, the essential factor of mediation. [4] In conciliation, the conciliator has the flexibility to assist the parties in identifying the dispute, proposing proposals and facilitating a settlement in a variety of ways, without having to follow strict procedural order. Once a mediation agreement is reached, it is often possible to resolve a case quickly. 2. Chinese investors-the practice of the host country dispute settlement mediation rules. (I) of Investor-Host Country Investment Dispute Mediation Rules in China's Multilateral Investment Treaties 1. Analysis of the mediation rules in the Washington Convention For the first time in this convention, the conciliation mechanism is stipulated as one of the ways to settle international investment disputes within the scope of international conventions. Investment disputes between investors of other countries and the government of the investee country in the investee country already exist in a considerable number of bilateral investment protection treaties at the international level to regulate this, I .e. the jurisdiction of such disputes is submitted to a mutually recognized dispute resolution "center", which may conduct mediation or arbitration. The ICSID Convention also has its mediation rules, namely, the ICSID Convention Mediation Rules (2006) and the ICSID Mediation Additional Facilitation Rules (2006). The two rules are a clarification of the way in which the dispute settlement center applies the mediation rules in the Convention. In 2011, Malaysia's Yijialan Company registered with the ICSID Secretariat with the Hainan Government of China for a land transfer dispute. The case was settled by settlement (mediation). The case was initiated by the Hainan Provincial Government, which unilaterally recovered the right of Yijialan to develop the land in Wanning City without reasonable compensation. As the land involved in the case is more than 2000 mu and involves international investment, the Chinese side attaches great importance to it, actively carries out consultation with yijialan company, and successfully reached a settlement in the same year. Of course, the reason why Yijialan Company is no longer entangled is that the Hainan government promised to find another 500 mu of land development rights to compensate it. This case is the first case brought against China in ICSID. Yijialan Company quoted the 1995 China-Israel BIT Investor-Host Country Investment Dispute Settlement Clause in accordance with the 1988 China-Malaysia BIT MFN Treatment Clause, which stipulates that investment disputes can be submitted to ICSID for settlement. This case involves issues of jurisdiction and national sovereignty. 2. Analysis of conciliation rules in the Multilateral Investment Guarantee Agency Convention The rules for the settlement of disputes by conciliation are detailed in article 3 of annex II to the Convention. In the early 1980 s, many developing countries were facing debt crises, which led to frequent international debt disputes due to their inability to repay their debts. In this context, the Multilateral Investment Guarantee Agency Convention came into being. The Convention creatively establishes a system of subrogation claims, which not only exercises the right of subrogation by MIGA, but also indirectly resolves international investment disputes. The Convention stipulates that other disputes between institutions and member states that are not related to interpretation and enforcement must be resolved through negotiation, arbitration and mediation, and expressly stipulates the application of mediation rules. MIGA has played a positive role in promoting the free flow of private capital in China. In 2000, PICC and MIGA signed a cooperation agreement to jointly protect the investment of Chinese investors in other developing countries. In 2006, China Export Credit Insurance Corporation and MIGA signed a memorandum of understanding on comprehensive cooperation to further deepen and regulate the cooperative relationship between the two parties. MIGA has also played a great role in promoting the development of China's investment: first, MIGA provides guarantee for small investment to protect the small international investment behavior of private investors; second, with the improvement of national strength and the support of the "Belt and Road Initiative" initiative, China's foreign direct investment has increased, and MIGA has protected China's foreign direct investment in the sense of international law. (II) Investor-Host Country Investment Dispute Mediation Rules in China's Bilateral Investment Treaties 1. Anatomy of conciliation procedures in bilateral investment treaties Note: On July 29, 2015, China and Turkey signed the Agreement between the Government of the Republic of the People's Republic of China and the Government of the Republic of Turkey on the Reciprocal Promotion and Protection of Investments. The agreement entered into force on November 11, 2020. 2. Application of conciliation rules in bilateral investment treaties At present, there are 105 bilateral investment agreements in China, of which 12 clearly state that mediation or third party intervention can be sought to resolve disputes. They are China and Uzbekistan, Belgium and Luxembourg, Tanzania, Israel, Turkey, India, Papua New Guinea, Japan, Slovakia, the Netherlands, Russia and Greece, accounting for 11.4 per cent. Article [7] of the Agreement on the Encouragement and Reciprocal Protection of Investments signed between China and the Greek Government, which entered into force in 1993, provides that disputes between the investor's host country may be submitted to ICSID for settlement through mediation or arbitration, and clearly sets out the application of mediation procedures. Article 9 of the Agreement on the Promotion and Protection of Investment signed between China and India, which entered into force in 2007, (II) stipulates that if the two parties cannot resolve the dispute through friendly consultation within the period, the dispute may be submitted to judicial, arbitration or With the consent of the parties, administrative agencies can also conduct mediation in accordance with the "United Nations Trade Law Commission Mediation Rules. Article 12, paragraph 1, of the Agreement with Uzbekistan on the Promotion and Protection of Investments [7], which entered into force in 2011, provides that disputes shall, as far as possible, be resolved through consultations between the parties, including the application of conciliation procedures. Article 8 of the Agreement on the Promotion and Reciprocal Protection of Investments [8] signed with Israel, which entered into force in 2009, stipulates that if a friendly settlement is not possible, a written request may be made to the Secretary-General of the International Center for Settlement of Investment Disputes to resort to mediation or arbitration proceedings, which can be mediated through the International Center for Settlement of Investment Disputes after the pre-procedure, as well as the bilateral agreement signed with Japan (1989). Article 13 of the Agreement on the Promotion and Reciprocal Protection of Investments with the Government of the United Republic of Tanzania [9], which entered into force in 2014, provides that investment disputes between an investor and the territory of another Contracting State shall, as far as possible, be settled through friendly consultations between the parties, including the application of conciliation procedures. (III) of Investor-Host Country Investment Dispute Mediation Rules in China's FTA Agreements 1. Analysis of mediation rules in the China-New Zealand Free Trade Area Agreement The China-New Zealand Free Trade Agreement [10] between China and New Zealand stipulates that investment disputes between investors and host countries shall be settled amicably as far as possible through consultations between the investor and the other party, and third-party procedures may also be introduced for dispute settlement if both parties to the dispute accept the intervention of third-party procedures. Such non-binding third-party proceedings include conciliation proceedings. This provision, similar to the above-mentioned States of Uzbekistan and Tanzania, places mediation in the context of "friendly consultations" of consultations or negotiations. 2. Analysis of mediation rules in the China-ASEAN Free Trade Area Agreement. The Investment Agreement of the Comprehensive Economic Cooperation Framework Agreement between China and ASEAN is stipulated in the China-ASEAN Free Trade Agreement. In 2015, China and ASEAN reached an outcome document "Protocol" on upgrading negotiations in Beijing, which entered into force in 2016. The Protocol aims to provide a series of guarantees for further cooperation in the field of investment. In order to promote investment facilitation, the two parties have reached a series of consensus on simplifying investment approval procedures, promoting the release of investment-related policies and regulatory information, and establishing a one-stop investment center or related mechanism when necessary, and supporting the provision of business licenses, convenient licensing and consulting for the business community. Although the rules for the settlement of disputes between parties and investors in the agreement are that the parties involved in the dispute should, as far as possible, resolve the dispute through consultation. If the dispute is not resolved, arbitration may be initiated. There is no direct provision for the application of the mediation rules. However, it is mentioned that the mediation rules of the arbitration institution can be applied after the dispute is submitted to the listed International Center for Settlement of Investment Disputes, UNCITRAL or other arbitration institutions agreed by both parties. Specific Proposals 3. Improving the Rules of Mediation for Investor-Host State Dispute Settlement in China (I) innovative investor-host country dispute settlement mediation rules At present, the Trade Law Commission is promoting the reform of investor-state dispute settlement, sorting out a series of problems in the existing system, and China can add its own reasonable propositions or suggestions in the discussion meeting. First, the mediation procedure can be separated from the arbitration procedure, and the mediation can be separated from the litigation and arbitration. Through separation, it can promote the independent development of mediation, promote the evolution and innovation of mediation rules, form standardized, legal and reasonable mediation rules, play its judicial function, improve the "procedural justice" of mediation, and increase the efficiency of the use of procedures. At the same time, the confidentiality of the mediation procedure can be improved, so that the mediation procedure will not affect the fairness of the litigation or arbitration procedure, and the trial or arbitration tribunal will not make a pre-judgment because of the matters known in the mediation. Second, mediation can be set as a pre-procedure to save judicial resources. With reference to the "first mediation" system stipulated in articles 122 and 133 of China's Civil Procedure Law, some discretionary issues between investors and the host government regarding investment can be mediated first, and if they can be renegotiated or discussed, there is no need to sue the court or arbitration institution, in order to save time and cost and judicial resources. At the same time, it should be emphasized that whether a dispute can be subject to mediation procedures depends on whether the dispute focus of the dispute has the possibility of mediation, whether the content of the concession can be determined by the subject of the party, and cannot be forced to mediate. "Priority application" does not necessarily apply the conciliation procedure to solve the problem, and care should be taken to avoid excessive promotion of conciliation. At the same time, attention should be paid to the protection of the parties' right to sue. If the dispute has been deadlocked and it is obviously impossible to resolve the dispute through mediation procedures, the procedure should be terminated in time and transferred to other litigation or arbitration procedures. Third, a standardized and diversified mediator qualification selection system can be constructed. Successful mediators can choose appropriate methods and methods according to their role positioning, use appropriate communication skills, conduct professional mediation, and properly handle the materials and information obtained in mediation, and successfully promote mediation. Such institutional support will provide a stable external environment for mediation, consolidate the basic functions of the mediation link, and reduce the opportunity cost of the mediation mechanism. Fourth, provide convenience in the system. First, it can demonstrate the effectiveness and implementation possibility of mediation in international investment, and increase the recognition of judicial justice in mediation through continuous improvement of mediation rules. Second, mediation institutions can be set up completely in practice, the composition of mediation rules is perfect, mediators are qualified and authoritative, and mediation with fair and appropriate results can be evaluated and implemented under appropriate conditions, and pilot projects can be carried out, in order to promote the benign development of the mediation system. (II) Broaden the Specific Application of Investor-Host State Dispute Settlement Rules After the above analysis, it can be seen that in the BITs signed between China and most countries, the agreement on the settlement of disputes between investors and host countries does not specify the application of mediation rules, but this provision does not exclude investors from using mediation as a means of settlement of investment disputes in practice [11]. The reasons are as follows: First, there is no explicit restriction in the treaty on the involvement of third parties in disputes, I .e., the use of conciliation procedures to resolve disputes, and there is no fork in the road clause. The fork-in-the-road clause means that the investor may not resort to another procedure after having chosen a domestic or international arbitration procedure when choosing a remedy. The application of the rules of conciliation is not restricted. Second, most of the BITs signed by our country clearly stipulate the pre-negotiation procedure, and need to go through a certain cooling period, the parties can reach a mediation agreement in the negotiation procedure, as one of the specific ways of negotiation. This relatively expanded interpretation would neither prejudice the conduct of subsequent relief proceedings nor change existing rules. The ability to take full advantage of mediation enhances the likelihood of successful negotiation. Third, it is true that the BIT specifies that the negotiation procedure includes the application of the mediation procedure, and that mediation is regarded as one of the negotiation procedures, which is feasible under the current legal framework. (III) improve the implementation procedures of the investor-host country dispute settlement mediation rules. To improve the implementation procedure of the mediation rules, we can try to establish a linkage mechanism similar to the arbitration procedure. Since the most thorough convention on investor-host country dispute rules is the Washington Convention, the following points can be drawn from it:(1) Each State party has an obligation of recognition and enforcement. (2) Each State Party shall enforce conciliation agreements developed by specialized agencies (without national interest) as if they were final judgments of its courts, without excessive review and refusal to recognize them.
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Viewpoint | Analysis of the EU Green Trademark Report (Excerpt)
Based on the investigation and analysis of the EU trademark (European Union Trade Mark,EUTM) commodity and service specifications applied for in the EU from 1996 to 2020, the EU Intellectual Property Office (European Union Intellectual Property Office, EUIPO) issued the Green EU trade marks report (Green EU trade marks) in September 2021. We will apply for trademarks in fields such as "photovoltaic", "solar energy", "wind energy" and "material recycling, named" Green Trademark "). Through the analysis of the report, we try to find the law and development context of trademark application and enterprise and national development for readers' reference. Background of the release of the 1. report Climate change and other related environmental issues are of relevance to everyone, both inside and outside the EU, and are increasingly common and important in politics, business and public debate. In 2019, the European Commission made action on climate change a priority, committing to a European Green Deal with the goal of making Europe the first carbon-neutral continent by 2050. In addition to investing significant financial resources, intellectual property rights are also an important consideration in achieving the goals of the European Commission. Creating new technologies, bringing new products and services to market and redesigning existing products to make them more sustainable is an important step in achieving the Green Deal goal. Traditionally, the role of intellectual property rights in environmental protection has been achieved through technological reform and innovation, and the number of patent applications is the main indicator of innovative activities in this field. However, through the analysis of the data on environmental protection and sustainable development in 2 million EU trademark (European Union Trade Mark,EUTM) applications accepted by the EU Intellectual Property Office from 1996 to 2020, as shown in Figure 1, it is not difficult to see that the number of green trademark applications is increasing significantly, and sustainable development has also received continuous attention from the majority of applicants. Figure 1 As shown in Figure 2, the same green EUTM applications from outside the EU are also increasing. The data shows that among these significant growth in green trademark applications, such applications from Chinese companies have increased significantly; other non-EU countries that have seen significant growth in green EUTM applications include South Korea, Switzerland, the United States, and the United Kingdom; and in the EU Among the member states, the countries with the most green EUTM applications are Germany, Spain, France, Italy and the Netherlands. Figure 2 2. from a national or regional perspective We focus on the contribution of trademarks to the national or regional level. The study found that in modern economic development, the importance of trademarks has become increasingly prominent. The EUIPO and the EPO in their 2019 study on the contribution of industry-level intellectual property found that industries that use trademarks intensively account for 37% of EU economic output (as measured by GDP) and 22% of employment. Belderbos, Kazimierczak and Goedhuys(2021) studied the impact of the existing patent and trademark stock owned by established companies in various regions on the establishment of new companies, and found that to a certain extent, the behavior of existing companies applying for trademark protection and expanding their own trademark stock can encourage new companies to enter their to-be-developed areas. Now, let's look at the growing trend of green trademarks at the EU level. As shown in Figure 3, part of the overall growth is due to the strong growth of green EUTM applications from outside the EU. For most of the past two decades, the number of green applications from the EU has been much higher than the number of such applications from third countries. However, in 2020, the number of non-EU green applications has caught up (about 14%) and has slightly exceeded the number of applications from within the EU (about 10%). Figure 3 Figure 4 shows the distribution of green EUTM applications submitted in the nine major product groups over the last five years. The energy-related products category dominates, with energy production and energy conservation-related trademarks accounting for more than half (54%) of green EUTM applications. Among them, energy saving accounts for 42.9 per cent, which is the largest category, while energy storage products (mainly various batteries) account for 38 per cent of all green EUTM applications, which is the most important category, dominated by Chinese enterprises. The second category is pollution control, accounting for 18 per cent. Among them, water purification products account for 11%, mainly from China and South Korea. In other categories, energy production and transportation each account for 10%. In the energy production category, solar energy products stand out, accounting for nearly 5%. Products related to climate change and reuse/recycling each account for 6%. Products and environmental awareness (ecology and sustainability) related product categories, products and waste management related categories, and agricultural alternative product categories accounted for 2-3% each. As shown in Table 1 below, in the past 2015 to 2020, although green EUTM applications were mainly in large countries such as China (16356 pieces) and Germany (12003 pieces), some smaller countries also showed greater application efforts in specific professional fields, such as Denmark's wind and hydrogen energy automobile products, Poland's fertilizer substitution products, etc. The countries with the highest proportion of green EUTM applications in their total EUTM applications are South Korea (25.4 per cent) and China (22.6 per cent). Among them, the Cayman Islands and Turkey accounted for more than 20%, but the absolute numbers were low. These countries all focused on products related to electricity storage, while South Korea appeared more diversified in solar and hydrogen vehicles. Table 1 3. analysis from the perspective of enterprises Another interesting finding from the perspective of another dimension, the enterprise, is that small and medium-sized enterprises (SMEs) are significantly active in the field of green EUTM. As shown in Table 2 below, for the large companies in this sample, green EUTM applications accounted for 12.7 per cent of total applications, which is not surprising; for SMEs, the percentage is slightly lower, but even the smallest companies in this group have a share of green EUTM applications of 9 per cent of their total applications, which is somewhat surprising. Similarly, large companies are far more active in patent filings than SMEs, but SMEs play an important role in bringing environmentally-related goods and services (G & S) to the EU market. While large companies are more active in filing green EUTM applications and are more likely to bundle trademarks with patents, with 12.7 per cent of EUTM applications filed in the 2015-2020 period falling into the green category, SMEs have also played a significant role, with about 10 per cent of their EUTM applications falling into the green category. In absolute numbers, SMEs submitted more Green EUTM than large companies during this period: 11554 and 8571, respectively. This highlights the role of SMEs in the EU economy, including in the green transition. Table 2 In the field of intellectual property, patents and trademarks have different meanings for the same company. The successful authorization of patents means that the company has developed new products or new production methods, while the approved registration of trademarks indicates that the company has provided new products in the market. Or service, which helps the company's corporate marketing, sales and consumers to identify the source of the product (or service). A trademark distinguishes a company's products (or services) from those of its competitors. The trademark application must contain the design of the trademark (usually text, graphic elements, or a combination of them) and the product (or service) designated by the trademark. In 1996, EUIPO's first year of operation, it received about 46700 EUTM applications, 1588 of which were green trademarks. Since then, except for 2001 and 2011 to 2014, the number of green trademark applications has continued to increase. In 2020, the number of green EU trademark applications is close to 16000. In a series of studies conducted jointly by EUIPO and the European Patent Office (EPO), the relationship between intellectual property ownership (including trademark ownership) and firm performance was analyzed. A EUIPO-EPO(2019) study of high-growth SMEs found that trademark applications are more correlated with the likelihood of subsequent growth, especially when combined with patent application activity, and the power of this IP combo is more powerful for subsequent growth. This is especially true for the protection of intellectual property rights (trademarks and patents) at the EU level. Similarly, EUIPO-EPO(2021) found that companies with patents, trademarks, or copyrights have higher per capita income and employ more people than companies without any of the three intellectual property rights. 4. research conclusion Through the study of the above two dimensions of countries (or regions) and enterprises, we can get a little simple conclusion. In the development of modern economy, intellectual property is playing a more and more important role. The importance of intellectual property rights in the traditional sense of trademarks and patents is not different from each other. From the perspective of the country or enterprise, patent rights may represent technological innovation and change, and trademark rights represent the direction of future development. Due to the long time of trademark application, the future development direction is often protected in advance by enterprises or related subjects in the form of pre-application (trademark reserve). Therefore, from the analysis of the number of trademark applications and the category of trademark applications over a long period of time, we can get the industrial layout of the country (region) or enterprises in the future. From the above research data, it can be seen that the green industry is getting more and more attention at the current national or enterprise level. Countries led by China and the United States are all planning, and far-sighted enterprises are making relevant layouts regardless of size. I hope our analysis can give readers some tips in the future development of enterprises. The English version of the full report is derived from: https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2021_Green_EU_trade_marks/2021_Green_EU_trade_marks_FullR_en.pdf
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1. brief In December 2008, Wu XX borrowed the name of Weng XX to establish XX Real Estate Co., Ltd., with Weng XX as the legal representative and Wu XX as the general manager. At the same time, Wu Moumou and Weng Moumou signed an agreement, agreeing that the shareholders of the company are Wu Moumou and Weng Moumou. Weng Moumou does not actually contribute capital to the company and does not participate in the operation of the company. All capital contributions of the company are borne by Wu Moumou, and all external responsibilities of the company are borne by Wu Moumou. In January 2010, the legal person of the company was changed from Weng Moumou to Wu Moumou. On February 3, 2010, Weng Moumou reported to the public security that the company's general manager Wu Moumou had embezzled his company's equity. Later, the public security filed a case for investigation with Wu Moumou suspected of falsely reporting registered capital, and took criminal coercive measures against Wu Moumou. Wu Moumou's father then signed the "Agreement" with Weng Moumou to hand over the company's seal, financial information and important documents of the company's development project to Weng Moumou. Later, Jiang Moumou sued the court with a private lending dispute, demanding that the borrower Weng Moumou perform the repayment responsibility, and the guarantor Wu Moumou's company performs joint and several liability for the loan. After the court accepted the case, Jiang Moumou applied to seal up a large number of houses under construction in Wu Moumou Company. After many court sessions, Jiang Moumou submitted an application for withdrawal to the court, and the court allowed him to withdraw the lawsuit. 2. case analysis (I) Weng used the convenience of keeping the company's official seal to forge the loan agreement and let the company provide joint and several liability guarantee for his personal loan. In this case, Wu is the actual shareholder of the company, and Weng is only a nominal shareholder. Weng Moumou kept the company's official seal on his behalf after Wu Moumou was detained by the public security. Therefore, this case needs to examine the authenticity of the loan relationship between Weng and Jiang and the authenticity of the guarantee relationship. First, the issue of the timing of the official seal on the loan agreement between Weng and Jiang. During the signing period of the loan agreement, the company's official seal was kept by Wu, who did not affix the company's official seal to the loan agreement involved. During the trial, Jiang Moumou and Weng Moumou admitted that the company's official seal was stamped by Weng Moumou afterwards. Even if there is a loan relationship, the time when the loan relationship occurs does not match the time when so-and-so crown real estate stamps. Second, according to the agreement signed between Weng and Wu, Weng is not the actual shareholder of the company and has not invested money in the company. Therefore, objectively there is no situation in which Weng has borrowed money for the company's construction in progress. Third, after Weng signed an agreement with Wu's father, the two sides had carried out the company's creditor's rights and debts check, in the handover Weng did not put forward the case of the loan and guarantee. Since the project developed by the company is an urban construction project of the so-and-so sub-district office, the so-and-so sub-district office issued a "certificate" stating that in resolving the dispute between the company and Weng, it had sent personnel to coordinate and reconcile many times. During this period, Weng Moumou himself and his agent never proposed that Weng Moumou borrowed Jiang Moumou's personal money to invest in the company's project, nor provided the company's loan guarantee evidence. Therefore, before Jiang so-and-so sued, the company and the project client so-and-so street office did not know about the loan and guarantee involved. Fourth, the total amount of the four loan agreements involved in the case is as high as more than 3728 million yuan, but the lender Jiang Moumou can not provide the source of these funds, the formation of the loan transactions, the loan process, the way the loan payment and other important evidence that can prove the real occurrence of the loan involved in the case, Jiang Moumou has no evidence to prove that the loan involved in the case actually occurred. Fifth, according to the provisions of Article 16 of the 2011 Company Law, if 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. The company involved in the case is an independent legal person. Even if Weng is the legal representative and nominal shareholder of the company, he decides to let the company provide joint guarantee liability for his personal loan without a vote of the shareholders' meeting. Because of the violation of the provisions of the company law, it is also an invalid guarantee. (II) Weng and Jiang for the criminal purpose of illegally occupying the company's property, through the fictitious loan agreement and guarantee relationship, the use of civil litigation, defrauding the property of a certain crown, belongs to litigation fraud, the behavior of the two has constituted the crime of fraud. In this case, after the lawsuit, Jiang Moumou filed an application for property preservation against the guarantor to the court. Soon the court made a ruling to seal up the guarantor's house under construction when Jiang Moumou did not provide a full guarantee. It can be seen that the purpose of the lawsuit between Jiang and Weng is to encroach on the property of the guarantor through civil litigation, that is, the two have a clear purpose of illegal possession of the guarantor's property. It must be emphasized here that although Weng Moumou and Jiang Moumou's actions involved in the case objectively meet the constitutive requirements of the crime of false litigation, their subjective intention to illegally occupy the legal property of XX Crown Real Estate Company is very clear. And the behavior involved in the case occurred before the establishment of the crime of false litigation, according to the Supreme People's Court's Interpretation of the (IX) Time Effect of the Criminal Law Amendment, implement false litigation behavior, if the criminal law before the amendment should be investigated for criminal responsibility for the crime of fraud, embezzlement or embezzlement according to the criminal law before the amendment, the relevant provisions of the criminal law before the amendment shall apply. In general, there are only the perpetrator and the victim in fraud. The victim has a misunderstanding due to the perpetrator's deception and disposes of his own property, that is, the victim and the deceived are the same person. However, in practice, there are also cases of triangular fraud in which the victim and the deceived are not the same person. This case is a triangular fraud. The judge involved in the case is the deceived person. Based on the law, he has the right to decide whether a certain crown real estate bears joint and several guarantee liabilities. Therefore, he is the property disposer, but the victim is a certain crown real estate. In this case, the content of Weng's deception was to fabricate the loan and guarantee relationship, which made the trial judge mistakenly believe that the loan relationship and guarantee relationship existed, thus making a civil judgment that the guarantor should bear joint and several guarantee liability for the loan of more than 3728 million yuan involved. Therefore, Weng's behavior belongs to the purpose of illegal possession, through litigation to defraud the guarantor's property, constitute the crime of fraud. (III), Jiang's withdrawal does not belong to the suspension of the crime, but is forced to make a choice based on objective circumstances, which is an attempted crime. In the course of the crime, the perpetrator's influence on the perpetrator needs to be examined whether the factor other than the will causes the perpetrator to stop continuing the crime, which constitutes the suspension of the crime or the attempted crime. If factors other than will occur, but are not sufficient to prevent the continuation of the crime, and the perpetrator voluntarily gives up the crime based on such unfavorable conditions, it shall be the suspension of the crime; if a phenomenon other than will occurs and is sufficient to prevent the perpetrator from continuing to commit the crime, it shall be an attempt to commit the crime. In this case, Weng Moumou did not intend to let the guarantor XXX company participate in the trial. Weng Moumou entrusted his colleague Pan Moumou to participate in the trial on behalf of the guarantor by using the official seal and invalid business license and other materials to cooperate with him to complete the fraud crime. After Wu Moumou inadvertently learned of the lawsuit involved, Weng Moumou prevented the person entrusted by Wu Moumou from attending the trial. After the agent entrusted by Wu participated in the trial, many questions were raised about the loan and guarantee relationship in this case, and Jiang could not provide a reasonable explanation. After many court sessions, Jiang was forced to apply to the court for withdrawal after realizing that the criminal purpose of the two men could not be realized. Therefore, the criminal state of the two men is not a crime suspension, but an attempted crime.. The criminal acts of (IV) Weng and Jiang are still within the statute of limitations. Weng Moumou colluded with Jiang Moumou to fabricate the loan agreement and guarantee relationship, the total amount was as high as more than 3728 million yuan, and the guarantor Moumou Company was jointly and severally liable for the loan of more than 3728 million yuan, that is, the two persons intended to defraud the guarantor of more than 3728 million yuan worth of property through litigation. According to the sentencing regulations of Shandong Province on the crime of fraud, if the amount of fraud is 500000 yuan or more, it belongs to a particularly large amount, and shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and a fine or confiscation of property. According to the above provisions, Weng's fraud obviously belongs to the "extremely large amount" and should be sentenced within the scope of fixed-term imprisonment of more than ten years or even life imprisonment. According to Article 87 of my country's Criminal Law, crimes will no longer be prosecuted after the following periods: if the legal maximum sentence is less than 5 years of fixed-term imprisonment, the limitation of prosecution is 5 years; if the legal maximum sentence is more than 5 years but less than 10 years of fixed-term imprisonment, The limitation of prosecution is 10 years; if the legal maximum sentence is more than 10 years, after 15 years; if the legal maximum sentence is life imprisonment or death, after 20 years. The maximum legal penalty for fraud by Weng Moumou is life imprisonment, so the prosecution is still 20 years, and the criminal acts of the two are still within the statute of limitations and can be investigated for criminal responsibility. In summary, according to the provisions of Article 266 of my country's Criminal Law on the crime of fraud, Weng Moumou and Jiang Moumou fabricated the loan agreement and guarantee relationship, intending to embezzle the guarantor's property through civil litigation, and their actions have been suspected of fraud. Because the guarantor found out and participated in the civil action in time, the illegal possession purpose of Weng and Jiang was not realized, and it was an attempted fraud.
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On December 30, at the invitation of Shandong Investment and Financing Guarantee Group Co., Ltd., lawyer Shi Guangbo, deputy director and senior partner of Zhongcheng Qingtai Jinan Institute, conducted a special training on "Enterprise Compliance" for the company. Under the theme of "From Legal Risk Management to Compliance Management", lawyer Shi Guangbo explained what compliance is and how to build a compliance system from the aspects of risk understanding, the rise and development of compliance, and the compliance requirements of state-owned enterprises, interpreted the key points of compliance management, and described the relationship between compliance and internal control, legal affairs, wind control, audit and other work of state-owned enterprises, combined with the actual situation of the enterprise, the specific path and way of building the compliance system are put forward. This training is rich in content and clear in system, clarifying the concepts and connotations related to compliance, helping employees of the provincial investment and financing guarantee group to more accurately understand the essence of corporate compliance and the path of building a compliance system, and is well received by the trainees. In recent years, "enterprise compliance" has been paid more and more attention. At the national level, documents such as "Guidelines for Compliance Management of Central Enterprises (Trial)" and "Guidelines for Compliance Management System" have been formulated. Hebei, Shanghai, Shandong, Jiangsu, Guangdong and other provinces and cities have also issued guidelines for compliance management of local state-owned enterprises. Compliance management has become a new requirement for deepening the risk management of state-owned enterprises. Zhongcheng Qingtai Law Firm attaches great importance to the construction and improvement of the professional capacity of "corporate compliance" services, has set up a special team, strengthened the research and development of "corporate compliance" legal service products, and has provided "corporate compliance" special laws for many large enterprises service.
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Viewpoint | Judgment and Analysis of the Application of Article 77 of the Patent Law
Article 77 of the "Patent Law of the the People's Republic of China" (hereinafter referred to as the "Patent Law") "The use, promise to sell or sell a patent infringing product that is not known to be manufactured and sold without the permission of the patentee for production and business purposes, can prove The legal source of the product shall not be liable for compensation." The content of this article is usually referred to as the "legal source defense" or the "sale/user non-infringement clause". However, in practice, the specific subject can be applied to the defense of this clause, but also according to the actual case, its role in the case and other comprehensive judgment. Example 1: Company A intends to obtain a certain product. It organizes personnel to design and complete the preliminary finalization of the product. However, because it has no actual production capacity, it chooses to hand over the design drawings to Company B. Both parties sign a contract called "Sales Contract", which stipulates that Company B will produce the products according to the design drawings provided by Company A and then sell them to Company A at a certain price, after company B delivered the product to company A according to the contract. Unfortunately, this product fell within the scope of protection of a certain patent right of Company C. Later, Company C sued Company A and Company B for infringement. During the litigation process, Company A presented the "Sales Contract" and the performance certificate, and defended against non-infringement on the grounds of Article 77 of the Patent Law. Example 2: Company B has a variety of products on sale, and also makes its products into brochures and other promotional materials to the market to promote its own products. Company A is interested in one of its products after obtaining Company B's product atlas. After Company A orders this product from Company B, both parties sign a contract called "Sales Contract", which stipulates that Company B will produce the products in its product atlas, and then Company B will deliver the products to Company A according to the contract. Unfortunately, this product fell within the scope of protection of a certain patent right of Company C. Later, Company C sued Company A and Company B for infringement. During the litigation process, Company A presented the "Sales Contract" and the performance certificate, and defended against non-infringement on the grounds of Article 77 of the Patent Law. The author believes that in the above two cases, Company A in Case 1 cannot apply the provisions of Article 77 of the Patent Law and should bear the liability for infringement and compensation. Company A in case 2 applies the provisions of Article 77 of the Patent Law and is only liable to stop the infringement without paying compensation for the following reasons: In Case 1, the design of the accused infringing product was completed by Company A, and when Company A ordered the accused infringing product to Company B, it had already provided the design drawings of the accused infringing product and explicitly required Company B to produce according to the design drawings. In the case of Company A explicitly designated design, whether it is made by Company B or by someone else, the alleged infringing products manufactured by Company B in accordance with the contract are unique, that is, they will inevitably fall into the scope of patent protection of Company C constitute infringement. Although the contract signed by Company A and Company B is called "Sales Contract", in fact, Company A has completed the pre-design and finalization of the accused infringing product, that is, it has participated in part of the production and manufacturing, so it is in line with the producer rather than the seller's identity. Therefore, the acts of Company A and Company B belong to the producers who jointly produce the accused infringing products, and Article 77 of the Patent Law cannot be applied. In case 2, although company B still produces according to the design designated by company A, because the design is made by company B itself and has nothing to do with company A, company A only chooses a certain product designed by party B based on its own needs, which is a typical purchase behavior, and then company B produces the accused infringing product according to its own design, and sell the product to Company A. In the whole process, Company A did not participate in any production process of the accused infringing products, and it can invoke Article 77 of the Patent Law to defend itself. With the improvement of China's socialist market economy, various new models of production and sales emerge one after another, but no matter what the model is, the judgment of the identity of the sales/user of Article 77 of the Patent Law should always be based on the substantive role played by the relevant responsible person in the infringement to judge whether the provision can be applied.
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Foreword In recent years, with the landing and implementation of a large number of PPP projects, PPP project disputes have begun to emerge. The legal relationship of PPP project is complex, the contract system of PPP project is complex, and because China has not yet issued a unified PPP legislation, the handling of PPP project disputes is facing a lot of confusion. Based on a typical administrative dispute case issued by the Higher People's Court of Shandong Province, this paper discusses the legal issues related to the exercise of the unilateral discharge right of the government of PPP contract. Introduction of 1. case In October 2007, a solid waste company and the Jinan Environmental Protection Bureau signed the "Jinan City Medical Waste Centralized Disposal Project Franchise Agreement", and obtained the exclusive franchise for the centralized disposal of all medical waste in Jinan, with a concession period of 25 years. Due to the continuous increase in the amount of medical waste treatment, a solid waste company proposed in 2014 to designate the southeast corner of the Jinan Municipal Domestic Waste Treatment Center as a new site, and the Jinan Environmental Protection Bureau required it to build a new centralized disposal facility in the first half of 2015. Put into use. However, in the process of specific site selection of the project, due to the non-cooperation of nearby villagers, the environmental impact assessment of the project cannot be completed and the follow-up cannot be promoted. On August 10, 2015, the Municipal Environmental Protection Bureau issued a preparatory notice, pointing out that a solid waste company was facing the problem that the hazardous waste business license and the temporary fixed-point planning of the existing disposal site were about to expire, and required the company to take substantive measures, otherwise it would terminate the franchise agreement. On September 11, 2015, the Jinan municipal government agreed to terminate the franchise agreement of a solid waste company in accordance with the procedure in the form of minutes of the meeting. On September 15, 2015, the Environmental Protection Bureau issued a notice to a solid waste company to terminate the franchise agreement. A solid waste company refused to accept, successively filed administrative reconsideration and administrative litigation, requesting the cancellation of the notice of termination of the franchise agreement, and the municipal government and the Municipal Environmental Protection Bureau to compensate for the corresponding losses. The first-instance judgment of the Jinan Intermediate People's Court: the 1. rejected the plaintiff's request to revoke the defendant's Municipal Environmental Protection Bureau's ''Notice'' for the recovery of the franchise; the 2. defendant's Municipal Environmental Protection Bureau will withdraw the franchise within 30 days from the effective date of this judgment. The right to make a compensation decision for the losses caused to the plaintiff; the 3. rejected the plaintiff's other claims. After the second instance of the Shandong Provincial Higher People's Court and the retrial of the Supreme People's Court, the first instance judgment was upheld. Causes of 2. disputes-problems such as site selection and planning procedures in the early stage of project construction have not been properly handled. Judging from the content stated in the judgment document of the case, the Jinan medical waste centralized disposal project has inherent problems such as "temporary land" and "site selection" from the beginning. The construction land of the centralized disposal site for medical waste involved in the case is "temporary land", and the problem of construction land for the project has not been properly solved until the incident, and a solid waste company has repeatedly written to the environmental protection department on this issue. finally, it will be "temporarily solved" by extending the temporary transition period of land use twice ". Regarding the location of the permanent land for the project, the Jinan City Planning Bureau and other departments agreed to the new site proposed by a solid waste company. However, in the specific site selection process, the villagers in the surrounding villages did not cooperate, resulting in the project environmental impact assessment The work cannot be completed and the follow-up cannot be promoted. A solid waste company has written to the Environmental Protection Bureau several times, requesting to be coordinated and resolved. Due to the inability to complete a series of project construction procedures such as environmental assessment and site selection, the Environmental Protection Bureau terminated the franchise agreement on the grounds that "the hazardous waste business license and the temporary fixed-point planning of existing disposal sites expire. PPP projects are mainly applicable to infrastructure, public utilities and public services, and are closely related to the public interest, and the construction and operation process of the project is highly concerned by the public. Especially for public utility projects such as garbage treatment, sewage treatment, waste disposal, incineration and power generation, the acceptance and cooperation of the surrounding public to the project directly affects the smooth development of the project. This requires that the development of PPP projects must do a good job in preliminary planning and site selection, obtain project land in accordance with the law, and reserve space for long-term project bidding and expansion, and at the same time do a good job in information disclosure, communication, and benefit compensation to avoid project construction Public resistance in the process ensures the continuous and stable development of the project within the entire life cycle of more than ten years. At the same time, in the project contract, it is clearly agreed to handle the project construction procedures, deal with the public boycott of the responsibility of the main body and risk sharing, to avoid the actual occurrence of the later, but also for the occurrence of disputes to define the responsibilities of the parties to pre-set the corresponding contract basis. The government party's unilateral discharge right 3. PPP project contract. (I) unilateral rescission right based on public interest considerations The legal nature of PPP project contract is still inconclusive in the theoretical circle, mainly the nature of private law (general civil and commercial contracts), the nature of public law (administrative agreements) and the mixed nature of public and private (both civil and commercial contracts and administrative agreements). However, no matter how it is characterized, the nature of its "agreement" cannot be denied. Once the agreement is signed, it cannot be changed and terminated at will without legal reasons or legal procedures. After the PPP contract comes into effect, the project contract can be terminated based on the express breach of contract, the achievement of termination conditions, force majeure, serious breach of contract and other reasons stipulated in the Contract Law, and both parties can exercise the right of termination. However, PPP contract is not an ordinary civil contract formed entirely on the basis of private law autonomy, because one party is the administrative organ, the contract involves the administrative authority of the administrative organ, the purpose of the contract is for the public interest and other factors, PPP contract termination is different from the general civil and commercial contract. The second paragraph of Article 105 of the "Administrative Procedure Regulations of Shandong Province" stipulates: "In the course of the performance of an administrative contract, if a major situation that seriously damages the national interest or the public interest occurs, the administrative agency has the right to modify or terminate the contract". Therefore, compared with the general civil and commercial contract, the termination of PPP contract has a certain particularity, the government in order to protect the public interest in the specific circumstances of the right to unilaterally terminate the PPP contract. The judgment of the legality of the unilateral exercise of the right of rescission by the (II). According to the decision of the people's court in the above-mentioned case, the judgment of the government party to unilaterally terminate the PPP contract should be considered from the following three aspects: 1, the main body, whether there is a unilateral release of the "authority" In the above-mentioned case, the court found that according to the franchise agreement involved in the case, the municipal government is the authorized subject of the Jinan medical waste centralized disposal franchise, and the Municipal Environmental Protection Bureau has been authorized by the municipal government to sign an agreement on behalf of the municipal government, grant the franchise, and have the right to terminate the agreement and receive the franchise. Therefore, the Municipal Environmental Protection Bureau has the authority to grant and recover the franchise in accordance with the law. Moreover, the decision of the Municipal Environmental Protection Bureau to withdraw the franchise has been approved by the municipal government, and its authority and responsibilities have been confirmed by the municipal government. Therefore, the government party to terminate the PPP contract subject needs to have the subject qualification stipulated in the contract, that is, "in accordance with the contract" has the period of termination of the contract. 2, the entity, whether to meet the unilateral release of the "conditions" In the above-mentioned case, the people's court determined that the new project could not pass the environmental impact assessment due to the non-cooperation of the villagers near the site selection, and that a solid waste company could not fulfill the obligations of rebuilding, expanding and rebuilding the facilities, equipment and pollution prevention facilities for centralized disposal of medical waste as agreed in the agreement. As the centralized disposal of medical waste involves social and public interests, after the temporary fixed-point planning of the existing disposal site expires, it is unable to build new centralized disposal facilities, unable to perform the obligation of centralized disposal of medical waste stipulated in the Agreement, endangering the social and public interests, resulting in the failure to realize the purpose of the contract. According to the relevant provisions of the the People's Republic of China Contract Law and the Administrative Procedure Regulations of Shandong Province, "During the performance of administrative contracts, there are major circumstances that seriously damage the national or public interests, the administrative organ has the right to change or terminate the contract", and the conditions for the recovery of the franchise have been fulfilled. It can be seen that the government needs to unilaterally terminate the contract in accordance with the law due to the public interest, and the following two conditions must be met: first, the contract has a clear agreement on the relevant obligations. 3. Procedurally, whether the "procedure" for unilateral termination is carried out in accordance with the law" According to the provisions of Article 51 of the Measures for the Administration of Franchising of Infrastructure and Public Utilities, if a franchisee considers that a specific administrative act made by an administrative organ infringes upon its legitimate rights and interests, it shall have the right to state and defend itself, and may file an administrative reconsideration or administrative lawsuit in accordance with the law. In the above case, before taking back the franchise right, the Municipal Environmental Protection Bureau has served a preliminary notice of termination to a solid waste company, requiring it to submit a written reply and take substantive measures, which should be regarded as a protection of its right to know and statement. Accordingly, it is not improper to find that the procedure for making the alleged act was lawful. Therefore, when the government unilaterally terminates the PPP project contract, it should give the social capital party the right to state and defend itself, fulfill the necessary obligation to inform, and avoid constituting a procedural violation. In addition, according to Article 38 of the measures for the Administration of Infrastructure and Public Utilities Franchise: "during the franchise period, due to serious breach of contract or force majeure by one party to the franchise agreement, the franchisee is unable to continue to perform the obligations agreed in the agreement, or if there is an early termination of the agreement as agreed in the franchise agreement, the agreement may be terminated in advance after consultation with the creditors." Although the court in the above-mentioned case did not support the solid waste company's claim that the Environmental Protection Bureau did not reach an agreement with its creditors on the grounds that a solid waste company did not provide evidence, we believe that "consensus with creditors" is one of the procedures that the government should perform unilaterally to terminate the PPP contract. On the one hand, it is because the "Infrastructure and Public Utilities Franchise Management Measures" has clear provisions on this, on the other hand, almost all require a large amount of financing, after the termination of the contract need to properly project follow-up funding needs, creditor interests protection and other issues. The application of legal norms 4. the unilateral termination of PPP contracts. Article 3 of the measures for the Administration of Infrastructure and Public Utilities franchising stipulates: "the term" infrastructure and public utilities franchising "as mentioned in these measures refers to the fact that the government authorizes legal persons or other organizations the People's Republic of China at home and abroad by means of competition in accordance with the law, clarify their rights and obligations and risk sharing through agreements, and stipulate that they will invest in the construction and operation of infrastructure and public utilities within a certain period and scope and obtain profits. Provide public goods or public services." The "Agreement" involved in the case is an agreement between the Municipal Environmental Protection Bureau and a solid waste company on the franchise of the centralized disposal project of medical waste. It has the content of rights and obligations in administrative law. It is an administrative agreement and is subject to the adjustment of this method. Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law" stipulates: "The people's court examines whether the administrative agency has performed in accordance with the law, performed the agreement in accordance with the agreement, or unilaterally changed or terminated the agreement is legal. While applying administrative laws and regulations, civil laws and regulations that do not violate the mandatory provisions of the Administrative Law and the Administrative Litigation Law may be applied." The the People's Republic of China Contract Law, as a civil legal norm for regulating contractual relations, can be applied by reference to administrative agreements. Article 8 of this Law stipulates that contracts established in accordance with the law shall be protected by law. The people's court determined that the meaning of the "Agreement" involved in the case was true and did not violate the prohibitive provisions of laws and administrative regulations. It should be determined to be legal and valid, and both parties should perform corresponding obligations in accordance with the agreement. Based on this, although the PPP contract has public law factors, even if the dispute over the right of rescission is resolved through administrative litigation, the realization of the purpose of the contract mainly stems from the "agreement" between the parties, and the civil and commercial legal norms such as contract law and the general principles of civil law can still be applied. Dispute resolution 5. the unilateral termination of PPP contracts. (I) disputes involving franchising should be submitted to administrative proceedings. The above-mentioned case as a government franchise agreement dispute, through the way of administrative litigation, the reason is that China's administrative procedure law on the government franchise agreement dispute resolution way has clear provisions. According to Article 12 of the new Administrative Litigation Law revised in November 2014 and Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law implemented on May 1, 2015, disputes over government franchise agreements fall within the scope of administrative litigation. Before the above-mentioned new Administrative Litigation Law, the franchise agreement to whether a civil and commercial dispute or an administrative dispute is still inconclusive, judicial practice is also inconsistent, some as a civil and commercial dispute submitted to arbitration, some government parties take the initiative to propose is a civil lawsuit. The new Administrative Procedure Law and the judicial interpretation have solved this problem, making it clear that the franchise agreement dispute belongs to the administrative agreement dispute, and the administrative lawsuit should be brought. Accordingly, if the franchise part of the PPP project is separate from the other parts and is a separate franchise agreement, the dispute over the separate franchise agreement should be submitted to administrative proceedings. (II) disputes unrelated to the franchise should be given to the parties to choose In the case of Hong Kong Stall Industrial (Group) Co., Ltd. suing Taizhou Municipal People's government for investment promotion agreement ((2017) Supreme Law Bank No. 99), the Supreme People's court held that "civil agreement and administrative agreement, civil litigation and administrative litigation generally only have the function of legal division of labor and jurisdiction guidance. The trial of administrative agreement cases should not only apply administrative legal norms, but also apply civil legal norms that do not violate the mandatory provisions of administrative law and administrative procedure law. In practice, civil agreements may be referred to the administrative tribunal, and administrative agreements may also be referred to the civil tribunal. To distinguish between civil agreements and administrative agreements, civil litigation and administrative litigation, more consideration should be given to the convenience of trial, the effectiveness of dispute resolution, the authority of judgment results, and the consistency of judgment standards between higher and lower courts. Litigation is more conducive to the supervision of administrative power and the maintenance of public interests." Based on the public interest and agreement of PPP contract, the agreement on civil rights and obligations and the agreement on administrative rights and obligations are often intertwined and difficult to completely separate. The content of PPP contracts often involves construction, finance, land and other administrative management fields, and a number of administrative management functions. To review PPP contracts, it is necessary to consider whether it is true voluntary and consensus between the parties, and it should also consider administration. Specific legal regulations in the field, the binding force of the agreement on local governments and their functional departments, and the application of the principle of relativity of contracts. Compared with the civil procedure, the administrative procedure is more conducive to a comprehensive review of the legality and contract of the provisions of the administrative legal norms in the agreement. If social capital, as the plaintiff, has the right to choose in accordance with the law on issues such as the claim, the type of action and the subject matter of the action, it has the right to sue for all or part of the PPP contract. If the dispute does not involve the content of the government franchise, it is not necessary to choose to resolve the dispute through civil litigation. Moreover, if the remedy of civil litigation is excluded, when the social capital party defaults, the government cannot claim rights through civil litigation, and it is not conducive to the government's protection of rights and interests in accordance with the law.
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Viewpoint | Read in one article-How to set up a legal and effective family trust in China
Introduction As a complex legal and financial instrument with the characteristics of risk isolation, wealth management and inheritance, family trust has attracted more and more attention and favor of high net worth people in China in recent years. With the introduction of new capital management regulations, family trust business has gradually emerged in China in recent years, but high net worth clients still have a very vague understanding of domestic family trust, especially in recent years, the first domestic family trust preservation case in Hubei Province (2020 E 01 Zhibao No. 230) and the Lunan Pharmaceutical family equity trust dispute in Shandong Province, high net worth clients have greater doubts about setting up family trusts in the country. So how to prevent the family trust from being identified as a false trust (Sham Trust), so as to avoid the trust being broken down by the regulatory authorities, the judiciary or creditors, in the establishment of the family trust is particularly critical. From the perspective of law, this paper discusses how to set up a legal and effective family trust for high net worth clients in China, starting from the meaning of family trust, the establishment conditions, the establishment process and the role of lawyers in the establishment of family trust. Regulatory Definition of 1. Family Trust On August 17, 2018, the Trust Supervision and Management Department of the China Banking and Insurance Regulatory Commission issued the "Notice on Strengthening the Regulation of Trust Supervision during the Transition Period of Asset Management Business" (Trust Letter [2018] No. 37). This is the first time that my country has given a clear definition of "family trust" from a regulatory perspective. The document clearly states: "Family trust refers to the trust business in which the trust company accepts the entrustment of a single individual or family, takes the protection, inheritance and management of family wealth as the main trust purpose, and provides customized affairs management and financial services such as property planning, risk isolation, asset allocation, children's education, family governance, public welfare (charity) undertakings, etc. The main purpose of the trust is to preserve and increase the value of the trust property, and the trust business with the nature of special account financial management and asset management attributes is not a family trust." While actively encouraging trust companies to develop family trust business in China, the regulatory authorities have also released a signal to strengthen the supervision of family trusts, and made it clear: "The trust supervision offices of all banking regulatory bureaus shall, in accordance with the principle of" substance is more important than form ", strengthen the supervision of all kinds of trust businesses and innovative products, restore the essence of their businesses and risks, and apply one regulatory standard for similar businesses. The transaction management trust business should be treated differently, strictly control the legal compliance of the purpose of the trust, the source and use of the trust assets, strictly control the transaction management trust business that facilitates the regulatory arbitrage and violations of the law, and support the trust companies to carry out the transaction management trust business that meets the regulatory requirements and invests funds into the real economy." Statutory conditions for the establishment of 2. family trusts. (1) Legitimate purpose The "purpose of the trust" is a prerequisite for the establishment of the trust act. For example, the purpose of entrusting management to use assets, seek asset appreciation, isolate risk, and pass on wealth must be legal and possible, otherwise the establishment of the trust cannot be confirmed. The establishment of a family trust must have a legitimate trust purpose, the regulatory authorities have made it clear that the family trust is the protection, inheritance and management of family wealth as the main trust purpose, the transfer of assets, malicious evasion of debt, concealment of illegal income, money laundering, tax evasion and other illegal purposes are not protected by law. First of all, from the general law point of view, the establishment of a family trust is a civil legal act. According to the provisions of Article 143 of the Civil Code, three conditions shall be met for the validity of a civil legal act: 1. The perpetrator has the corresponding capacity for civil conduct; 2. The meaning is true; 3. It does not violate the mandatory provisions of laws and administrative regulations and does not violate public order and good customs. Secondly, from the perspective of special law, the Trust Law further stipulates that the trust must have a legitimate purpose. A trust with an "illegal purpose" can be roughly in the following four situations: first, the purpose of the trust violates relevant laws and administrative regulations, for example, for organizations or activities prohibited by laws and administrative regulations, such as terrorist organizations, cult organizations, anti-government organizations, and so on, financial support cannot be provided through the trust; second, the purpose of the trust harms the public interest; third, a trust is established specifically for the purpose of litigation or debt collection; fourth, the establishment of a trust harms the interests of its creditors. 2. Legal property Trust belongs to a property management system, with trust property as the center, if there is no trust property, the family trust will lose the value of existence. This requires that the settlor must have certain and legal property to establish the trust. (1) Determined property. The certainty of trust property should include three aspects of certainty, one is the certainty of the existence of trust property, the other is the certainty of the scope of trust property, and the third is the certainty of the ownership of trust property. The certainty of these three aspects first requires that the settlor cannot use property that does not exist or no longer exists as trust property; secondly, the property that requires the settlor to establish the trust has a clear and definite scope, which can be clearly distinguished from the settlor's other property; Thirdly, there is no dispute over the property ownership that requires the settlor to establish the trust. As for the type of property, the Trust Law and the regulatory authorities do not make clear restrictions, cash assets, movable property, real estate, equity/shares, stocks, funds, etc. However, at present, China's trust property registration system is not complete, in reality, for real property rights, aircraft, ships and aircraft and other special movable property, intellectual property rights and other property that need to change the registration of property rights, local registration authorities and tax authorities have different standards. Therefore, the availability of registration and tax costs are the main factors for customers to consider whether to include the corresponding assets. During the two sessions this year, Xiao Gang, a member of the National Committee of the Chinese People's Political Consultative Conference and former chairman of the China Securities Regulatory Commission, pointed out that private entrepreneurs will face major challenges in large-scale intergenerational inheritance in the next 10 to 20 years. The protection and inheritance of the wealth of private entrepreneurs not only involves the sustainable development of private enterprises themselves, but also involves a series of important issues such as economic growth, employment expansion, private investment, and the role of the third distribution to promote common prosperity. There is an urgent need to take precautions and strengthen Top-level design. However, the non-transactional transfer system of trust property is missing. Due to the vague provisions of the trust law itself, in practice, it is impossible to handle the non-transaction transfer of trust property directly according to the trust documents, which seriously restricts the establishment of non-capital family trusts and weakens the core function of private enterprises to use family trusts to realize the inheritance of equity property. Therefore, he suggested that the trust system should be improved in four aspects, such as amending the trust law, establishing the infrastructure supporting the family trust, introducing the judicial interpretation of the trust law and strengthening the supervision, so as to promote the implementation of the family trust. ② Legally held and allowed to circulate. According to the provisions of China's Trust Law, the property for the establishment of a family trust must be the property legally held by the principal and cannot be property that is restricted in circulation without approval. If the trustor establishes a trust with illegal property, the trust is invalid. For example, property acquired by illegal means such as theft, embezzlement or robbery, as well as property restricted in circulation without authorization, cannot be used as property for the establishment of a trust. ③ Legal tax payment. In the process of setting up a family trust, due diligence is required on the trust property of the settlor. For example, for cash assets, the settlor must issue income certificates, other certificates of obtaining the cash assets and tax payment certificates. Therefore, when setting up a family trust, it must be ensured that every asset injected into the family trust is the private undisputed property of the settlor that is legal, compliant and tax-paid. ④ Requirements for asset size. In our country, there is an asset size requirement for the establishment of a family trust, which requires that the amount or value of the family trust property be not less than $10 million. This requirement also makes family trusts mainly a way of "wealth security" and "asset inheritance" for high net worth clients. The setting of the asset size threshold is one of the main features that distinguish family trusts from other transactional trusts. 3. Subject requirements ① Principal: In China, the principal who establishes a trust must currently be a natural person with full civil capacity. In the case of a family trust, the settlor may be a single individual or family, and a single individual is a natural person with full civil capacity. The concept of the family, on the other hand, refers to the members of the family living together, in accordance with the general criteria for the concept of "family" in the Civil Code. As for "family members", my country's "Civil Code" also explains this, clarifying that spouses, parents, children and other close relatives living together are family members. It follows that in our establishment of a family trust, the settlor can be a natural person with full civil capacity or a family, I .e. a family of spouses, parents, children and other close relatives living together as the settlor. However, in order to clarify the property ownership relationship, the situation of taking the family as the principal needs more complex asset investigation and design the corresponding trust terms, so as to avoid the legal risk of trust property in the process of establishment, management and liquidation. ② Trustee: Trust Company. In China, a trust company is a financial institution established in accordance with the the People's Republic of China Company Law and the Measures for the Administration of Trust Companies, which is mainly engaged in trust business. For family trusts, the trust company can act as a trustee, accept the entrustment of a single individual or family, with the protection, inheritance and management of family wealth as the main purpose of the trust, to provide the trustee with customized transaction management and financial services trust business. ③ Beneficiary: The beneficiary is the person who can enjoy the benefit of the trust in the trust. The settlor may be the beneficiary or the sole beneficiary of the same trust. For family trusts, beneficiaries should include family members, I .e. spouses, parents, children and other close relatives living together. 4, family trust establishment form requirements. In our country, the establishment of a family trust should be in writing and completed by the formation of a trust contract. In the written document for the establishment of a family trust, the following shall be stated: (I) fiduciary purposes; The name or title and domicile of the (II) trustor or trustee; (III) beneficiary or range of beneficiaries; (IV) the scope, type and condition of the trust property; The form and method by which the (V) beneficiary obtains the benefit of the trust. 3. establishment process The process of establishing a family trust is generally implemented gradually in accordance with the steps of intention communication, background investigation, property due diligence, scheme design and communication, trust company project application and approval, filing with the regulatory authorities, project establishment, and investment allocation. However, the channels for high-net-worth individuals to set up family trusts are different. In addition to eventually landing in trust companies, many high-net-worth clients initiate the establishment of family trusts through private banks, insurance companies, securities companies, wealth management companies, family offices and other institutions. Therefore, the establishment process is slightly different. The role of 4. lawyers in the establishment of family trusts. At present, China's family trust business has been more and more high net worth people's attention, but the family trust in our country is still in the early stage of development. Whether a specific family trust can eventually play the role of risk isolation and wealth inheritance after its establishment still needs time to verify. Family trust, as the top-level design of all the wealth under the name of high net worth clients, integrates the protection, management and inheritance of all kinds of property, and integrates the comprehensive knowledge of law, taxation, insurance, investment, corporate structure, foundation, charity, wealth management and asset management, and is generally known as the service at the top of the wealth management business pyramid. Family trusts are mostly personalized service products with many design risk points. It is difficult for general financial practitioners to fully control the relevant legal risks. In the whole family trust design, strong comprehensive legal knowledge and litigation risk control ability are required. In order to control risks and costs, whether it is a private bank, insurance company, trust company, securities company or wealth management company, it is more inclined to let customers use standardized establishment methods, but this kind of service is difficult to meet the personalized needs of customers. Lawyers, as professionals with professional legal knowledge and legal policy acumen, play a very important role in the family trust business, and can assist high net worth people with their professional knowledge reserves to achieve the fundamental purpose of risk isolation and wealth inheritance. So as a lawyer, in practice should be how to assist high net worth clients, to achieve the establishment of family trust? First of all, for the principal who has the intention to establish a family trust, we can conduct a preliminary communication to understand the establishment needs and assets of the principal, and make a preliminary assessment of whether the conditions for the establishment of a family trust are met. Secondly, a confidentiality agreement should be signed with the settlor who has the conditions and intention to establish a family trust after initial communication, regardless of whether the final family trust is successfully established, priority should be given to ensuring the security and secrecy of the settlor and property information. Third, conduct due diligence on the trustee's trust property. Focusing on the identity of the family trust principal and beneficiary, the ownership and status of the trust property, and the principal's debts, the legality of the trust property shall be carefully examined in accordance with the principle of prudence stipulated by relevant laws to ensure the validity of the establishment of the trust property. Fourth, the formation of a preliminary family trust program. According to the wishes of the principal and the relevant materials obtained through the preliminary due diligence, a preliminary trust plan is formed. Fifth, the selection of cooperation agencies. The client needs to carefully choose the trustee, that is, the trust company. The professionalism and reliability of the trust company are very important. Choosing a trustworthy trust company is the key to the safety of trust assets. At the same time, it is also necessary to consider the trust company and the other required for the establishment of a family trust. The fees of the intermediary agency and the client's affordability, law firms and lawyers have rich intermediary agency resources, can be used as leaders to connect with the client, ultimately, assist the settlor in determining the selection of trust companies and other intermediaries. Sixth, determine the formal program. After the selection of the intermediary, the law firm and the trust company jointly determine a formal family trust plan for the relevant materials collected in the previous period. Seventh, the drafting of trust documents. A family trust is a set of legal contracts that agree on the rights and obligations of multiple stakeholders, such as the principal, trustee, beneficiary and protector, to the entrusted assets. The relationship between these stakeholders will change greatly over time, and this dynamic may cause new conflicts of interest. Therefore, under the premise of combining the current situation, in order to safeguard the interests of the client, it is an essential job for lawyers to draft and revise the relevant documents in the family trust business. Eighth, the plan is implemented on the ground. The family trust scheme must land in order to finally achieve the purpose of establishment. The transfer of the principal's trust property and the supervision of whether the trustee establishes a separate account is the core and key of the entire family trust. In this process, the lawyer may assist the principal in transferring the trust property, such as funds, to a separate account under the trustee's control in accordance with the trust contract to ensure the final implementation of the trust program.
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2021-12
1. brief An investment holding company and a company signed the Agreement on the Transfer of State-owned Property Rights, which agreed on the principle that the employment and placement of employees should follow the asset business and agreed that the transferee of property rights would undertake to carry out the employment and placement of employees of the target company in accordance with the relevant provisions and the provisions of the restructured employee placement plan. After the signing of the Agreement on the Transfer of State-owned Property Rights, an investment holding company has fulfilled the registration of the equity change of the target company. However, after the signing of the property rights transfer agreement, the property rights transferee and the target company did not fulfill the obligation of employee placement, resulting in long-term letters and visits by employees, forming a group incident. After that, an investment holding company paid hundreds of millions of yuan in employee placement fees from the perspective of easing labor conflicts and harmonious social relations. The target company and the property rights transferee believe that the State-owned Property Rights Transfer Agreement stipulates that an investment holding company has the coordination obligation to change the land auction of the target company to commercial and residential land and return the land income. As the land income has not been returned, the target company and the property rights transferee do not have the funds to fulfill the employee resettlement obligation. The plaintiff's investment holding company shall bear the increase in resettlement costs due to the delay in fulfilling the resettlement obligation. 2. Case Analysis An investment holding company has repeatedly litigated with the transferee of property rights and the target company on the issue of employee placement, and has now been judged by the Intermediate Court, the High Court and the Supreme Court on the subject of employee placement obligations and the basis of the claim of an investment holding company. (I) clarify the subject and responsibility of the target company's employee placement obligations after the transfer of property rights, and clarify the legal relationship between the advance payment of employee placement costs. 1. From the perspective of the historical evolution of the restructured enterprise, the target company has been changed into the current company through restructuring, the legal entity continues, and the labor relations of employees are naturally postponed, including continuing to sign labor contracts, paying social insurance, handling employee retirement procedures, etc. The target company has not changed as an employing unit, so it is necessary for the target company to be responsible for the obligation of employee resettlement. 2. According to the agreement on the transfer of property rights, the new company will receive all the employees of the original enterprise after the restructuring according to the principle that the employment of employees follows the asset business. According to the contract, the "Restructured Employee Resettlement Plan" is legally binding on the new company and the property rights transferee, and the property rights transferee undertakes to ensure that the new company strictly fulfills the corresponding rights and obligations to the employees in accordance with the resettlement plan. The Restructured Employee Resettlement Plan further clarifies that the subject of the employee resettlement obligation is the new company after the restructuring, and that the transferee of property rights provides guarantees by way of commitment in the contract, and shall also be liable for the debts incurred by the resettled employees and the resettled employees. 3. After the transfer of property rights, the transferor of state-owned property rights has no obligation to undertake the resettlement of employees, but continues to pay the resettlement expenses of employees, which is an act of advance payment. According to the above analysis, since the transferor of state-owned property rights has advanced the cost of employee placement after the transfer of property rights, the new company should have the obligation to repay the advance party after the restructuring. (II) simplify the legal relationship, another lawsuit to deal with the defendant's target company, property rights transferee's claims for breach of contract. 1. The legal relationship of the contract for the transfer of state-owned property rights is different from the labor legal relationship between the target company, the transferee of property rights and the placement of employees. According to the "Property Rights Transfer Agreement" and "Employee Resettlement Plan", or based on the purpose of enterprise restructuring and related restructuring norms, the property rights transferee and the target company have always been the main body responsible for the resettlement of employees and expenses, and shall bear all the resettlement obligations to the employees in accordance with the law, including all the resettlement expenses before and after the restructuring. This is the labor legal relationship between the two companies and their employees. Regarding the property rights transferee, the target company claims that because an investment holding company is lazy to perform the so-called breach of contract, such as land bidding and listing, resulting in the actual cost of employee placement to expand, resulting in its loss, belongs to the property rights transferee and an investment holding company between the contractual legal relationship. With regard to the above-mentioned different legal relationships, the property rights transferee and the target company may file a separate contract dispute lawsuit to claim losses caused by the breach of contract by an investment holding company, but because they do not belong to the same legal relationship, they may not be dealt with in the same case. 2, the property rights transferee, the target company did not file a counterclaim, nor did it claim the loss arising from the default of an investment holding company to prove, so the property rights transferee, the target company's breach of contract should not be dealt with in the same case. Counterclaim is different from the response defense, counterclaim is the defendant against the plaintiff's lawsuit, is an independent lawsuit, has the nature of the lawsuit. The purpose of the defendant's defense is to prove that the plaintiff's claim is partially or completely unfounded by rebuttal, and the purpose of the defendant's counterclaim is to offset or annex the claim of this claim, or to make the claim of this claim lose its meaning. In this case, the property rights transferee, the target company because of the long-term failure to fulfill the obligation of employee placement, so the lack of actual payment of employee placement costs of financial documents, so can not file a counterclaim, only through the way to respond to the defense against an investment holding company's claims. As analyzed above, the defendant's defense can be dealt with separately because it is not the same legal relationship as the plaintiff's claim of an investment holding company. It is based on the above-mentioned legal analysis that the effective judgment supported an investment holding company's claim for the return of hundreds of millions of yuan of employee placement costs to the property rights transferee and the target company, and made it clear that the property rights transferee and the target company could separately claim the loss of breach of contract. 3. practice experience summary Never forget the past, the future guide. In order to avoid the dispute between the placement of employees after the transfer of property rights and the order in which the original transferor of property rights performs the obligations of the contract, it is suggested that it should be clearly stipulated in the property rights transfer contract that the employee placement obligations of the target company should not be based on the completion of the obligations of the transferor of property rights in the property rights transfer agreement as a prerequisite for the performance of the employee placement obligations, the target company or the new company after the restructuring shall fulfill the obligation of employee resettlement on time in strict accordance with the employee resettlement period stipulated in the employee resettlement plan. In addition, in the course of the implementation of the agreement in this case, the land and real estate under the name of the new company after the restructuring have been changed to the name of the property rights transferee, in order to prevent the property rights transferee from transferring assets to evade the obligation of employee placement, the transferee of property rights, the actual controller of the transferee of property rights, etc. may be required to bear joint and several liability for the settlement of the employees of the new company under the "Property Transfer Agreement" and the obligations of the new company under the "Restructured Employee Resettlement Plan" and the debts arising therefrom. 4. relevant legal provisions Article 525 of the the People's Republic of China Civil Code If the parties owe debts to each other and there is no order of performance, they shall be performed at the same time. One party has the right to refuse its request for performance before the other party performs. A party has the right to reject its corresponding request for performance when the other party's performance of the debt is not in conformity with the contract. Article 552 If a third party agrees with the debtor to join the debt and notifies the creditor, or if the third party indicates to the creditor that it is willing to join the debt, and the creditor does not expressly refuse within a reasonable period of time, the creditor may request the third party to assume joint and several debts with the debtor within the scope of the debt it is willing to assume. Article 577 If one of the parties fails to perform its contractual obligations or the performance of its contractual obligations is not in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 687 If the parties agree in the guarantee contract that if the debtor is unable to perform the debt, the guarantor shall bear the responsibility for the guarantee, it shall be a general guarantee. The Supreme People's Court on the application<中华人民共和国民法典>The provisions of the Civil Code shall apply to civil disputes arising from legal facts after the implementation of the Civil Code. Civil disputes arising from legal facts prior to the implementation of the Civil Code shall be governed by the laws and judicial interpretations of the time, unless otherwise provided by the laws and judicial interpretations. The legal facts before the implementation of the Civil Code continue until after the implementation of the Civil Code. The provisions of the Civil Code shall apply to civil disputes arising from the legal facts, unless otherwise provided by law or judicial interpretation. The Supreme People's Court on the application<中华人民共和国民法典>Interpretation of the guarantee system (2021.1.1) Article 36 If a third party provides a creditor with a similar commitment document such as a shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and the creditor requests the third party to assume the responsibility for the guarantee, the people's court shall deal with it in accordance with the relevant provisions of the guarantee. If the commitment document provided by the third party to the creditor has the intention of joining the debt or sharing the debt with the debtor, the people's court shall determine that the debt is joined under Article 552 of the Civil Code. If it is difficult to determine whether the commitment document provided by the third party in the preceding two paragraphs is a guarantee or a debt, the people's court shall determine it as a guarantee. If the commitment documents provided by the third party to the creditor do not conform to the provisions of the preceding three paragraphs, and the creditor requests the third party to bear the guarantee liability or joint and several liability, the people's court shall not support it, but it shall not affect its request to the third party to perform the agreed obligations or bear the corresponding civil liability on the basis of the commitment documents. Article 51 of the the People's Republic of China Civil Procedure Law, the plaintiff may abandon or change the claim. The defendant may admit or refute the claim and has the right to file a counterclaim. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 126 The plaintiff adds claims, the defendant makes counterclaims, and the third party makes claims related to this case, which may be tried together. Article 221 If a dispute arises on the basis of the same fact and the parties bring separate suits in the same people's court, the people's court may try the case together. Article 233 The parties to a counterclaim shall be limited to the scope of the parties to the claim. If the counterclaim is based on the same legal relationship with the claims of this suit, there is a causal relationship between the claims, or the counterclaim is based on the same facts as the claims of this suit, the people's court shall hear the case together.</中华人民共和国民事诉讼法></中华人民共和国民法典></中华人民共和国民法典>
2021-12-29
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
