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On December 28, 2021, Xu Zongsheng, Secretary of the Party Committee and Chairman of Jinan Urban Development Group Co., Ltd., Yin Guangwei, Deputy Secretary of the Party Committee and General Manager, Dong Qingzhe, Deputy Secretary of the Party Committee, Wang Tao, Minister of Comprehensive Management Department, and Qu Haitao, Deputy Minister of Strategic Planning Department A group of 7 people visited Zhongcheng Qingtai Jinan for exchange. Han Honggang, director of Zhongcheng Qingtai General Office, Geng Guoyu, party secretary and director of Jinan Institute, senior partners Zhang Xinjun, Zhao Kaiyong, Ma Shibin, Tong Yang, partners Dong Guoai, so Xiaoyan and other lawyers warmly received the visiting leaders. Director Han Honggang and Director Geng Guoyu extended a warm welcome to the leaders of Jinan Chengfa Group, and introduced the historical evolution, development process and future planning of Zhongcheng Qingtai Law Firm to the visiting leaders in detail, and put forward suggestions on further strengthening cooperation and exchanges between the two sides. Subsequently, lawyers Zhao Kaiyong and Tong Yang respectively summarized and reported on the perennial legal services and compliance legal services provided to Jinan Chengfa Group in 2021, and put forward new ideas and ideas for future legal services. In addition to the annual legal service work report, Zhang Xinjun, Ma Shibin, so Xiaoyan lawyers on tax planning, company establishment and operation, domestic and foreign financing, asset securitization and other aspects of the business to make special reports. Chairman Xu Zongsheng expressed his gratitude to Zhongcheng Qingtai Law Firm for its warm reception, and gave a detailed introduction to Chengfa Group's current main business sectors, business priorities, outstanding results, and work characteristics. The team's professional ability also expressed appreciation and affirmation, and hoped to further strengthen cooperation with Zhongcheng Qingtai in taxation and financing to achieve mutual benefit and win-win results.
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On December 27, 2021, approved and announced by the Shandong Provincial Market Supervision Administration, the "Patent Value Evaluation Standard" became the local standard of Shandong Province. The standard number DB37/T 4455-2021 will be implemented on January 27, 2022. The main drafting units of the standard are Zhongcheng Qingtai (Jinan) Law Firm, Shandong Bochuang Intellectual Property Service Co., Ltd., Shandong Institute of Standardization, Qilu University of Technology (Shandong Academy of Sciences), Jinan University and other 13 units. As one of the main drafters of the standard, Mu Xun, lawyer of the second intellectual property department of Zhongcheng Qingtai, participated in all stages of standard preparation, application implementation, test verification and expert review, and responsible for the organization of contact work. This standard is applicable to the evaluation of the legal value and technical value of the authorized valid invention and utility model patents in the process of patent transfer, licensing, pledge, investment and financing. The evaluation of the value of patents, the selection of patents and the evaluation of the advanced nature of patent technology can be carried out by reference. The patent value index system constructed by the standard is based on the patent's own attributes, combined with the actual needs of patent value analysis, and determines the specific content and method of patent value analysis. From the two dimensions of legal value and technical value, the evaluation index system has established four first-level indicators and 20 second-level indicators, including patent protection reliability, patent advance progress, patent implementation degree and patent transfer degree. Based on the evaluation criteria provided in the Patent Value Evaluation Specification, the evaluation experts score each index separately, and give the comprehensive score score of the evaluation patent according to the calculation model given in the standard. With the enhancement of China's comprehensive strength, various enterprises and institutions have accumulated more and more intellectual property assets worldwide, especially the number of patent applications has increased significantly year by year. Through the formulation of unified standards, the standardization of evaluation institutions and evaluation activities is promoted, and the publicity and application of evaluation results are promoted, which will reduce the risks in the transfer, evaluation, pledge, investment and financing of patent rights, it plays a positive role in promoting the transfer and transformation of scientific and technological achievements and optimizing the business environment.
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On December 26, 2021, the 15th "Learning in Taishan" Enterprise Development Annual Conference hosted by Tai'an Industry and Information Technology Bureau and undertaken by Shandong Huaxia Cornerstone Enterprise Management Consulting Co., Ltd. was grandly held in Tai'an. There are more than 90 online and more than 700 online, with a total of nearly 800 entrepreneurs from all walks of life participating. Lawyer Li Zhenzhong of Zhongcheng Qingtai Jinan Institute was invited to participate in and share the keynote speech "The Road to Listing on the Beijing Stock Exchange". Combined with rich practical experience, lawyer Li Zhenzhong gave an in-depth explanation on the background, significance, issuance conditions and listing procedures, legal provisions and market data of the Beijing Stock Exchange, and the main issues concerned by the IPO of enterprises. it was highly appraised and warmly responded by the participants. Subsequently, the meeting held a grand "Zhongcheng Qingtai and Huaxia Vision Strategic Cooperation" signing ceremony. Lawyer Li Zhenzhong, deputy director of Zhongcheng Qingtai Law Firm, and Mr. Li Jinshan, executive director of Shandong Huaxia Vision Enterprise Management Consulting Service Co., Ltd., respectively signed a contract on the future strategic cooperation on behalf of the two units. Zhang Bin, deputy director of Taian Municipal Bureau of Industry and Information Technology, and other major leaders witnessed the signing ceremony together with Yu Xuedong, director of Shandong Hualin Law Firm. This cooperation deepens the contact and cooperation between Zhongcheng Qingtai Law Firm, Tai'an Municipal Government and Tai'an entrepreneurs, and provides a cooperation platform for Zhongcheng Qingtai to better serve Tai'an enterprises.
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In practice, it is often encountered that after the state-owned land use right holder obtains the land use right through the transfer method, it cannot be developed due to various reasons, and it is necessary to transfer the land use right and the above-ground buildings and attachments. This paper summarizes the common transfer methods in practice, and briefly analyzes the advantages and disadvantages of various methods, so as to formulate a more targeted plan. Transfer mode of 1. construction in progress The process of transfer of construction in progress is that the acquirer and the transferor transfer the construction in progress owned by the transferor and the land use rights attached to it to the acquirer by way of transfer of construction in progress. 1. Program advantages For the acquirer, after acquiring the ownership of the construction in progress, the acquirer entrusts the team to carry out project management, engineering construction, design and research and development, cost and cost, etc., which has a large margin, which is conducive to giving full play to the advantages of the acquirer's management and development experience, and also facilitates the acquirer to integrate its brand advantages into the construction in progress project, so that the acquisition target can appreciate after the transaction. 2. Key points of concern (1) Conditions of transfer According to the provisions of Article 39 of the the People's Republic of China Real Estate Administration Law, if the land use right is obtained by way of transfer, more than 25% of the total development investment shall be completed when the real estate is transferred. Therefore, the acquirer needs to intervene in the early stage, invest in the project in advance, and then trade when the project reaches 25% of the investment intensity. (2) State-owned enterprises enter the transaction. According to the provisions of the Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises, state-owned and state-controlled enterprises and state-owned actual control enterprises implement the external transfer of production equipment, real estate, construction in progress, land use rights, creditor's rights, intellectual property rights and other assets of a certain amount or more. After performing the corresponding decision-making procedures in accordance with the internal management system of the enterprise, it shall be publicly carried out in the property rights transaction institution. The Notice of the State-owned Assets Supervision and Administration Commission of Shandong Province on Further Regulating Matters Relating to the Transfer of Assets of Provincial Enterprises, issued on November 15, 2021, once again emphasizes that "the transfer of assets of each enterprise shall be carried out in an open manner, with strict control over the non-public agreement method. The transfer of assets with an original book value of more than 3 million yuan (including 3 million yuan) or a net book value of more than 1 million yuan (including 1 million yuan) shall, in principle, in principle, in a single or in the Shandong property rights, shall be carried out, in." Therefore, in the case of meeting the transfer conditions, the state-owned enterprises that meet the public transfer conditions should perform the procedures of entering the market for listing when transferring the construction in progress. (3) Tax issues The types of taxes involved in the transfer of land use rights include value-added tax and surcharges, land value-added tax, deed tax, stamp tax and income tax, which are heavier. (4) Risk of delisting failure In the absence of delisting of the transferee or other failure to reach cooperation, there is a risk that the cooperative development funds will be recognized as loans in the early cooperation process, resulting in the risk that the transferor will bear the return of funds and the payment of capital occupancy fees after the failure of the project cooperation. 2. equity transfer method The state-owned land use right holder (the transferor), by transferring the company's equity or increasing its capital, enables the acquirer to indirectly control the real estate resources in the name of the transferor by holding the transferor's equity and to obtain income from the business activities of such real estate resources through the acquisition of equity or capital increase. 1. Program advantages The transfer of land through equity transfer, some tax departments allow the temporary non-payment of land value-added tax and other taxes, can reduce the current land transfer costs. 2. Key points of concern (1) There is a risk that the equity transfer agreement will be deemed invalid. After searching the relevant cases, the Supreme People's Court (2014) Min Er Zhong Zi No. 264, the Supreme People's Court (2013) Min Yi Zhong Zi No. 138, and the Jiangsu Provincial Higher People's Court (2014) Su Shang Zai Zhong Zi No. 0006 The case shows that some court judgments believe that the transfer of company equity and the transfer of land use rights as company assets are two independent legal relationships, the current law does not have the effect of mandatory provisions prohibiting the transfer of land use rights or real estate projects in the form of equity transfer of real estate project companies. However, there is another judgment point of view in practice. Taking the Fuyang People's Court (2015) Hangfu Shang Chu Zi No. 3183 case as an example, the court held that: the behavior is fundamentally based on the equity transfer agreement. The essence is the sale of state-owned land use rights. This act is not a legal act and is a legal form to cover up the illegal purpose. Therefore, it is considered that the equity transfer agreement is a legal form to cover up the illegal purpose and should be deemed invalid. (2) There is a risk of land value-added tax being levied by the Inland Revenue Department. According to the Official Reply of the State Administration of Taxation on the Levy of Land Value-added Tax on the Transfer of Real Estate in the Name of Equity Transfer (Guoshuihan [2000] No. 687), in view of the fact that Shenzhen Energy Group Co., Ltd. and Shenzhen Energy Investment Co., Ltd. jointly transfer 100% of the equity of Shenzhen Energy (Qinzhou) Industrial Co., Ltd., and these assets in the form of equity are mainly land use rights, above-ground buildings and attachments, this should be taxed in accordance with the provisions of the land value-added tax. In practice, there are disputes between local tax authorities on whether to pay land value-added tax and deed tax through equity transfer. 3. to change the land to the subsidiary and develop the way This method refers to the parent company and the land management department to sign the "state-owned land use right transfer agreement", and pay the land transfer fee, obtain the state-owned land use right certificate and obtain the land transfer fee compliance bill into the account, and then plan to set up a wholly-owned subsidiary in the project location or the project company to develop the land. There are usually two ways to change the land and above-ground attachments to the name of the subsidiary: first, to invest in the newly established subsidiary by valuing the land and above-ground attachments. Second, according to the net value of free transfer to the name of the new subsidiary. (I) valuation investment equity method 1, still need to meet the conditions for the completion of the total development investment 25%. Article 3 of the Provisions on the Administration of Urban Real Estate Transfer stipulates that "the transfer of real estate referred to in these Provisions refers to the act of the real estate right holder transferring his real estate to another person through sale, gift or other legal means. The other legal means referred to in the preceding paragraph mainly include the following acts: (1) taking shares at the price of real estate, establishing an enterprise legal person with another person, and changing the ownership of the real estate......". Paragraph 5 of Article 2 of the Guiding Opinions of the General Office of the State Council on Improving the Secondary Market for the Transfer, Lease and Mortgage of the Right to the Use of Construction Land (No. 34 [2019] of the State Council), "Clarify the form of transfer of the right to the use of construction land. All kinds of acts leading to the transfer of the right to use construction land are regarded as the transfer of the right to use construction land, including the transfer of the right to use construction land in the form of sale, exchange, gift, capital contribution, judicial disposal, asset disposal, merger or division of legal persons or other organizations. Where the right to use construction land is transferred, the ownership of above-ground buildings and other attachments shall be transferred together. If the transfer of real estate is involved, the relevant procedures for the transfer of real estate shall be handled in accordance with the relevant laws and regulations on the transfer of real estate". Therefore, the land use right is regarded as the transfer of land use right. Therefore, in the process of making shares, the transferor still needs to complete the investment bottom line of 25% of the total development investment in accordance with the provisions of Article 39 of the the People's Republic of China Real Estate Management Law. 2. Heavy tax burden According to regulations such as the Regulations on the Pilot Program of Changing Business Tax to Value-Added Tax in Annex II of Caishui [2016] No. 36, investment in intangible assets such as land and real estate such as houses should be used as sales to pay value-added tax, and the amount of output tax can be calculated., Issue a special VAT invoice to the invested enterprise as a proof of deduction of input tax. Therefore, investments in non-monetary assets are subject to VAT as sales. Article 2 of the Circular of the Ministry of Finance and the State Administration of Taxation on the Enterprise income tax Policy for Investment in non-monetary assets (Finance and Taxation [2014] No. 116) stipulates: "when an enterprise invests abroad with non-monetary assets, it shall evaluate the non-monetary assets and calculate and confirm the income from the transfer of non-monetary assets according to the fair value after deducting the tax basis after the assessment." Therefore, the capital contribution at the price of land use rights shall be subject to enterprise income tax. (II) free transfer method 1, state-owned enterprises must meet the conditions for free transfer. According to Article 2 of the Interim Measures for the administration of the free transfer of state-owned property rights of enterprises, the term "free transfer of state-owned property rights of enterprises" refers to the free transfer of state-owned property rights of enterprises between government agencies, institutions, wholly state-owned enterprises and wholly state-owned companies." If the conditions for free transfer are met, the approval process shall be fulfilled. 2. Tax advantages Article 3 of the Notice of the Ministry of Finance and the State Administration of Taxation on Issues Concerning the Treatment of Enterprise Income Tax on Promoting Enterprise Restructuring (Caishui [2014] No. 109) stipulates that the transfer of equity or assets between 100 per cent of resident enterprises directly controlled by the same or 100 per cent of resident enterprises directly controlled by the same or the same number of resident enterprises is based on the net book value, where there is a reasonable business purpose, the main purpose is not to reduce, exempt or postpone the payment of taxes, the equity or assets transfer does not change the original substantive business activities of the transferred equity or assets within 12 consecutive months, and the transfer-out enterprise and the transfer-in enterprise have not confirmed the profit or loss in accounting, the following provisions may be selected for special tax treatment, that is, the transfer-out enterprise and the transfer-in enterprise do not recognize the income, determined by the original net book value of the transferred equity or asset, no income tax may be paid; at the same time, the transfer is based on the original book value, no value-added, therefore, no value-added tax or land value-added tax is required. The second paragraph of Article 6 of the Notice of the Ministry of Finance and the State Administration of Taxation on Further Supporting the Restructuring and Reorganization of Enterprises and Institutions (No. 37 [2015] of the Ministry of Finance) stipulates: "The transfer of ownership of land and houses between enterprises belonging to the same investment entity includes between the parent company and its wholly-owned subsidiaries, and between wholly-owned subsidiaries of the same company, the transfer of land and house ownership between the same natural person and the sole proprietorship or one-person limited company established by the same natural person shall be exempted from deed tax." The free transfer of land use rights between parent and subsidiary companies is exempt from deed tax. In summary, the main factors affecting the company's decision to transfer land use rights to the outside world are: the company's own land development progress; tax costs; project plan completion time requirements; and other issues involving state-owned procedures. Therefore, in practice, each project company should consider the plan comprehensively and formulate a practical implementation plan for the company on the basis of legal compliance.
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1. sample sources and retrieval methods 1. Case Source: Waco Advanced Legal Information Database 2. Search scope: nationwide 3. Referee date: January 1, 2019-November 22, 2021 4. Search keyword: full "PPP + project contract" 5. Type of instrument: Judgment/ruling 6. Number of documents: 601 7. Retrieval time: November 22, 2021 2. general situation As can be seen from the year distribution map of the number of cases, from 2019 to 2020, the number of cases involving PPP projects nationwide showed an increasing trend, with an increase of about 67.5 percent in 2020 compared to 2019. The number of litigation-related cases decreased significantly in 2021 compared to 2020, and although there is a lag in the conclusion of cases, the number of cases is likely to be lower than the number of litigation-related cases in 2019. The data collection time of this report is as of November 22, 2021, and the number of cases involving PPP projects after November 2021 is yet to be further observed. Figure 2.1 Distribution of the Number of Cases by Year With the popularization and application of PPP model and its vigorous development, the disputes caused by PPP projects are increasing year by year. On the one hand, since 2014, PPP projects are still expanding in scale, and the expansion of the market has increased the number of disputes as a whole. On the other hand, since the end of 2017, the General Office of the Ministry of Finance issued the ''Notice on Regulating the Management of the Comprehensive Information Platform Project Library of the Government and Social Capital Cooperation (PPP) ''(Cai Ban Jin [2017] No. 92), the ''Ministry of Finance Regarding the Promotion of the Implementation Opinions on the Standardized Development of Government and Social Capital Cooperation (Cai Jin [2019] No. 10)," Government Investment Regulations "and other documents have been issued successively, the development of standardization is bound to lead to a rise in the number of disputes. With the development of PPP projects and the establishment and improvement of standardized institutional mechanisms, the PPP model, social capital parties and government departments will gradually return to rationality, and the number of PPP project disputes will gradually decrease. In terms of geographical distribution, the current PPP project litigation cases are mainly concentrated in Henan Province, Hunan Province and Shandong Province, accounting for 10.85 percent, 9.32 percent and 8.47 percent respectively. Among them, the number of PPP project disputes in Henan Province is the largest, reaching 64. Figure 2.2 Geographical distribution of cases It can be seen that compared with other provinces and cities in China, the number of PPP project disputes in Henan Province, Hunan Province and Shandong Province is more, and the legal risks caused by PPP projects are more prominent. 3. Case and Industry Analysis As can be seen from the distribution of cases shown in the figure, the main types of cases involved in PPP project litigation cases from January 1, 2019 to November 22, 2021 are civil, with 530 cases (some of which are civil cases, which are ignored here), accounting for 82.55 per cent, followed by administrative and criminal cases. Figure 2.3 Distribution of Cases Civil cases include contract disputes, property rights disputes, tort liability disputes, labor and personnel disputes, financial disputes and intellectual property disputes caused by PPP projects, of which 381 were contract disputes, accounting for 63.4 per cent. Among the contract disputes, the top three cases are construction project contract disputes, sales contract disputes, and loan contract disputes. There are 42 administrative cases involved in PPP project litigation, including confirming that administrative acts are illegal and advocating the revocation of administrative penalty decisions. Criminal cases include crimes such as embezzlement, bribery, abuse of power, embezzlement, collusion in bidding, and contract fraud by impersonating PPP projects. It can be seen that because PPP projects involve multiple fields and multiple legal relationships, the types of disputes are diversified. Figure 2.4 Case Industry Classification From the industry classification, it can be seen that the industry distribution of PPP project-related cases is mainly concentrated in the construction industry (44%), leasing and business services (11%), scientific research and technical services (8%), water conservancy, environment and public facilities management (7%), and real estate (6%). Among them, there are 226 in the construction industry, 54 in the leasing and business services industry, 42 in the scientific research and technical services industry, 38 in the water conservancy, environment and public facilities management industry, 30 in the real estate industry, and 124 in other industries. Analysis of 4. Trial Procedures and Judgment Results Figure 2.5 Procedural classification of cases From January 1, 2019 to November 22, 2021, there were a total of 601 cases. As can be seen from the classification chart of case procedures, the trial procedures of PPP project-related cases were mainly first-instance cases (59.37 per cent), 357 cases, second-instance cases (29.35 per cent), 176 cases (2.99 per cent), retrial cases (18 per cent) and enforcement cases (6.8 per cent). Figure 2.6 Case Judgment Results ◆ First Instance Judgment Results According to the data on the results of the first instance, 241 cases, or 40.13 per cent, were fully/partially supported; 60 cases, or 9.95 per cent, were fully dismissed; and 33 cases, or 5.47 per cent, were dismissed. ◆ Judgment Result of Second Instance According to the data of the judgment results of the second instance, 126 cases, accounting for 20.9 per cent, were upheld, while 40 cases, accounting for 6.63 per cent, were revised. ◆ Results of retrial judgment According to the data of the retrial judgment results, there were 8 cases that upheld the original judgment, accounting for 1.33 per cent. Amount Analysis of 5. Dispute Figure 2.7 Amount of subject matter involved Through the visual analysis of the amount of the PPP project involved in litigation, it can be seen that the number of cases with a bid amount of less than 500000 yuan is basically the same as the number of cases with a bid amount of more than 500000 yuan, with 282 cases. From the data alone, the PPP project involves a huge amount of investment, the case of the amount of the subject matter of the dispute does not form a large contrast. Combined with the above, it can be seen that at present, it is mainly construction contract disputes, sales contract disputes, loan disputes, etc., the contract disputes between the government and the social capital party have not been triggered on a large scale. After a detailed analysis of specific cases, in PPP project litigation, the social capital party is often in an active position, taking the initiative to file a relevant lawsuit to claim rights and interests after the dispute occurs, while the government party is often in a passive position, usually not the party that initiates the lawsuit. Analysis of 6. trial period Figure 2.8 Trial Period Through the visual analysis of the trial period, it can be seen that the trial time under the current conditions is more in the range of 31-90 days, with an average time of 53 days. Application Analysis of 7. High-frequency Law Through the search of cases, it is found that the high-frequency law mainly includes the following two aspects: (1) High-frequency substantive law Figure 2.9 High-frequency entity law (2) High-frequency procedure law.
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On December 27, 2021, under the auspices of the People's Court of Linyi Economic and Technological Development Zone, the first creditors' meeting of the bankruptcy reorganization case of Linyi Ludishan Flower Tourism Development Co., Ltd. was successfully held. 349 creditors participated in the meeting by webcast through the National Enterprise Bankruptcy and Reorganization Case Information Network and voted on relevant matters. The voting matters were passed with a high vote in favor, and the agenda of the meeting was successfully completed. Linyi Ludi Shanhua Tourism Development Co., Ltd. was unable to pay off its due debts and obviously lacked solvency. The People's Court of Linyi Economic and Technological Development Zone issued a (2021) Lu 1392 Pushen (Pre) No. 1 decision on September 29, 2021, deciding to pre-restructure Linyi Ludi Shanhua Tourism Development Co., Ltd. The pre-reorganization period is two months and the pre-reorganization period expires, the People's Court of Linyi Economic and Technological Development Zone issued (2021) Lu 1392 Paoshen No. 4 Civil Ruling on November 29, 2021, ruling to accept the reorganization application of Linyi Ludi Shanhua Tourism Development Co., Ltd.; on the same day, it issued (2021) Lu 1392 Paoshen No. 4 decision, appointing Zhongcheng Qingtai (Jinan) Law Firm as the manager of Linyi Ludi Shanhua Tourism Development Co., Ltd. After accepting the appointment, the Institute formulated a detailed work plan and plan in accordance with the Enterprise Bankruptcy Law and relevant laws and regulations, carried out the bankruptcy administration of the debtor in a timely manner, and performed its duties diligently and faithfully. In order to prevent and control the new crown epidemic and improve the efficiency of the meeting, the People's Court of Linyi Economic and Technological Development Zone decided to hold the first creditors' meeting by means of an online meeting upon the application of the administrator. At the meeting, the administrator made the "phased work report on the performance of duties", "the report on submitting to the creditors' meeting to verify the creditor's rights", and read out the "administrator's remuneration plan" and "property management plan". After voting by all the creditors with voting rights, the voting proposal was passed with a high vote rate of 98.04, the agenda was successfully completed, and the bankruptcy reorganization work was carried out in an orderly manner. Zhongcheng Qingtai (Jinan) Law firm has always adhered to the working principle of "according to law, standardization, efficiency and fairness", completed the work of the administrator diligently and dutifully, and won the unanimous praise of the people's court and creditors.
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Point of view... "shutdown period" related issues combing.
Foreword In the field of labor law in China, there are a large number of laws and regulations and judicial interpretations, and the relevant provisions are complicated, leading to endless disputes. At the same time, based on the consideration of "localization" or "adjusting measures to local conditions", the application of labor law has a strong "regional nature". This paper starts with the laws and regulations, rules and normative documents in the field of labor law, and combines the cases to sort out the related issues of "work stoppage and pay period. Premise for 1. to enjoy the treatment of work stoppage and pay The first paragraph of Article 33 of the Regulations on Work Injury Insurance stipulates that if an employee suffers from an accident at work or suffers from an occupational disease and needs to suspend work to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension of work and salary, and the unit to which he belongs shall pay monthly. According to this provision, it can be seen that there are two prerequisites for the enjoyment of the benefits of the suspension period: first, the employee has suffered an accident injury or occupational disease as a result of work (all work-related injuries shall be recognized by the labor administrative department). The duration and determination of the period of 2. suspension of pay. (I) the duration of the period of suspension of pay The second paragraph of Article 33 of the "Regulations on Work Injury Insurance" stipulates that the period of suspension of work and pay is generally not more than 12 months. If the injury is serious or the situation is special, it may be appropriately extended after confirmation by the labor ability appraisal committee of the city divided into districts, but the extension shall not exceed 12 months. The provision specifies the upper limit of the suspension pay period and the upper limit of the extension. Under normal circumstances, the injury situation can be clearly determined by combining the injury situation with the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period" issued by various places; for the injury situation that is not in the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period", it is generally calculated according to 6 months. For provinces that have not issued the "Classification Catalogue of Work-Related Workers' Work Stoppage and Pay Period", it shall be determined in combination with the leave certificate of the medical institution or the medical termination period. The method of determining the pay period for (II) work stoppage. After consulting the local labor law regulations and regulations, there are three main ways to determine the period of work stoppage and pay: First, it is determined by the employer directly according to the local work stoppage period catalogue, such as Shandong Province, Tianjin City, Chongqing City, etc. Article 3 of the measures for the Administration of work-related injury workers in Shandong Province shall promptly submit the diagnosis certificate issued by the work-related injury medical service institution to the unit to apply for work stoppage and pay. The employer shall, in accordance with the diagnosis certificate issued by the medical institution of the agreement, determine the period of suspension of work and pay in accordance with the "Classification Catalog of Work-related Workers in Shandong Province" (Annex 1), and notify the injured worker in writing (Annex 2). Article 3 of the measures for the Administration of work stoppage and salary retention of industrial injured workers in Tianjin, industrial injured workers or their close relatives shall promptly submit the diagnosis certificate issued by the medical institution of the industrial injury insurance agreement or the first diagnosis institution to the employer. The employer shall, within 10 working days after receiving the materials, determine the suspension period of the injured workers according to the diagnosis certificate issued by the medical institution and in accordance with the classification catalogue of the suspension and pay period of the injured workers in Tianjin (Annex 1), issue the notice on the determination of the suspension and pay period of the injured workers (Annex 2) to the injured workers, and send a copy to the social insurance agency at the same time. Article 4 of the measures for the Administration of work-related injury workers in Chongqing shall promptly hand over the diagnosis certificate issued by the work-related injury medical service institution to the unit. According to the diagnosis certificate of the work-related injury medical service institution, the employer shall determine the suspension and pay period of the injured employee in accordance with the "Catalogue", and notify the injured employee in writing. The second is determined by the labor ability appraisal committee, such as Shanxi Province, Ningxia Hui Autonomous Region, and Guangdong Province. Article 3 of the measures for the Administration of the period of suspension of work-injured workers in Shanxi Province (for trial implementation), the period of suspension of work-injured workers shall be confirmed by the Labor ability Appraisal Committee in accordance with the diagnosis certificate issued by the "Classification catalogue of the period of suspension of work-injured workers in Shanxi Province" (see annex) and the medical institution. The work-injured employees who have been confirmed by the Labor Ability Appraisal Committee shall notify the work-injured employees, employers and agencies in writing. "Ningxia Hui Autonomous Region Work Injury Workers' Work Suspension Period Management Measures" Article 3 Work Injury Workers' Work Suspension Period shall be determined by the District City Labor Ability Appraisal Service Center (hereinafter referred to as the Labor Ability Appraisal Agency) in accordance with the "Ningxia Hui Autonomous Region Work Injury Insurance Work Suspension Period Classification Catalogue" and work injury insurance agreement medical institutions in accordance with the regular treatment period of the injured part (unstable period and recovery period time) and diagnosis certificate confirmation. The work-injured employees who have been confirmed by the labor ability appraisal agency shall notify the work-injured employees, the employer and the work-related injury insurance agency in writing. Article 4 of the measures for the Administration of work-injured workers in Heilongjiang Province if the injuries suffered by work-injured workers are not included in the Classification catalogue of work-injured workers in Heilongjiang Province, the diagnosis certificate issued by the medical institution or the appraisal conclusion of the work stoppage period made by the municipal labor ability appraisal committee divided into districts shall be the work stoppage period. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. "Guangdong Province Work Injury Insurance Regulations" Article 25 If an employee needs to suspend work due to work-related injuries to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension and salary retention, and the unit to which he belongs shall pay monthly. The period of suspension of pay shall be determined according to the end period of medical treatment and shall be confirmed by the labor ability appraisal committee, and the maximum period shall not exceed 24 months. Third, it is partly determined by the employer and partly by the labor capacity appraisal committee. Article 3 of the measures for the Administration of work-related injury workers in Heilongjiang Province shall promptly submit the diagnosis certificate or leave certificate issued by the work-related injury medical institution to the employer, and the employer shall, according to the diagnosis certificate of the work-related injury medical institution, in accordance with the classification catalogue of the work-related injury workers' suspension and salary period in Heilongjiang Province, and notify the injured employee in writing. Article 4 If the injury suffered by an injured worker is not included in the Classification Catalogue of Work-off Period for Work-Related Workers in Heilongjiang Province, the conclusion of the work-off period shall be the period of work-off and pay-off by the medical institution or the municipal labor capacity appraisal committee of the district. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. Summary: For the issue of the period of work stoppage and pay period confirmation, this paper believes that it should first confirm whether the province where the employer is located has issued the "Measures for the Management of Work-Related Workers Work Stop and Pay" and the "Classification Catalogue of Work-Related Workers Work Stop and Pay Period". If the province where you are located has issued the above-mentioned documents, the employer will normally determine the period of suspension of work in accordance with the above-mentioned management measures and catalogues. If the province where you are located has not issued the above-mentioned similar documents, it needs to be determined in combination with the "Regulations on Work Injury Insurance" and the local regulations and evidence materials on the "Regulations on Work Injury Insurance"; the start time of the work stoppage period is generally from the day or the next day when the work injury occurs, until the employee's labor ability level is appraised or returned to work. Remedy for 3. employees to dispute the duration of the suspension pay period or the unit refuses to confirm the suspension pay period. This problem is only for the employees in the provinces that have issued the "Administrative Measures for Work-Related Workers to Stop Work and Pay" and the "Classification Catalogue of Work-Related Workers to Stop Work and Pay Period. (I), there are two types of relief for employees who have a dispute over the period of suspension of pay: First, if there is a dispute between the injured worker or his close relatives (relatives) and the employer over the period of suspension of work, they can submit an application for confirmation to the municipal labor ability appraisal committee divided into districts within a certain period of time, and the labor ability appraisal committee shall make a determination; if they are still dissatisfied with the conclusion made by the municipal labor ability appraisal committee divided into districts, they may apply to the provincial labor ability appraisal committee for reconfirmation within a certain period, the conclusion made by the provincial labor capacity appraisal committee is the final conclusion. Second: If the injured worker has any objection to the suspension period determined by the employer, he can apply to the labor ability appraisal committee of the overall planning area to directly determine the suspension period. The (II)'s relief method for the unit's refusal to confirm the suspension and pay period only exists in the "Administrative Measures for the Suspension and Pay Period of Work Injury Workers in Tianjin". The relevant provisions of this document are as follows: Article 6 If the employer refuses to determine the period of suspension of work and pay, the injured worker or his close relatives may apply to the labor capacity appraisal committee of the jurisdiction for confirmation. The labor ability appraisal committee shall, according to the industrial injury identification decision of the administrative department of human resources and social security, the diagnosis certificate of medical institutions and the classification catalogue of work stoppage and salary period of industrial injured workers in Tianjin, confirm the period of work stoppage and pay within 10 working days, issue a confirmation notice, and notify the social insurance agency and the unit where the industrial injury worker belongs. Summary: Combined with the above provisions and the search case, this paper holds that the employee due to the suspension of pay period of the objection, can obtain the relief way is relatively limited, the confirmation of the suspension of pay period generally does not fall within the scope of the court's authority. In the provinces or cities that have issued the "Administrative Measures for Work Suspension and Salary Retention of Work Injury Workers", most courts will directly determine it based on this method, but some judges believe that the court should not directly determine the period of work suspension and salary retention. For example, the (2018) E 01 Min Zhong No. 6885 judgment made by the Wuhan Intermediate people's Court holds that it is not within the scope of the people's court to confirm the suspension of work and pay period. The improper period of suspension of work and salary retention determined by the court of first instance ex officio shall be corrected. The plaintiff may claim separate rights on the confirmation of the pay period and the payment of wages. For the provinces or cities that have not issued the measures for the Administration of work stoppage and salary retention of injured workers, they can only be judged in combination with evidence materials. For example, the judgment (2020) Su 06 Min Zhong No. 2228 issued by Nantong Intermediate People's Court held that Ji Mou failed to provide other evidence to prove his claim of suspension of work and pay period except four certificates of illness. Therefore, the court of first instance confirmed that the suspension of work and pay period was not improper based on four certificates of illness. Ji Mou failed to provide evidence for his appeal claim, and the court could not support it. 4. whether the employee's work-related injury caused by the infringement of the third party, the lost work fee and the salary during the work stoppage period can be obtained at the same time. From the retrieved cases on this issue, there are two views for and against this issue: Among them, the main supporters are Changzhou Intermediate People's Court (2018) Su 04 Minzong No. 4234 Judgment, Suzhou Intermediate People's Court (2019) Su 05 Minzong No. 5577 Judgment, Dalian Intermediate People's Court (2019) Liao 02 Minzong No. 5894 Judgment, Urumqi Intermediate People's Court (2019) Xin 01 Minzong No. 2279 Judgment. This view holds that the regulations on Industrial injury Insurance do not have unlimited and prohibitive provisions on the treatment of employees during the period of work suspension, and the wages during the period of work suspension do not belong to the scope of medical expenses for work-related injuries. it is a matter borne by the employer as stipulated in the regulations on Industrial injury Insurance, and the civil liability borne by the third party cannot exempt the employer from its legal obligations. Those who oppose the above issues are Qingdao Intermediate People's Court (2019) Lu 02 Minzong No. 9382 Judgment and Shenyang Intermediate People's Court (2019) Liao 01 Minzong No. 7704 Judgment. The view is that, although wages and lost wages are based on different legal provisions, but from a substantive point of view, both are compensation for the actual reduction in income of workers who are unable to perform normal work due to injury. If the worker has received the lost work fee, the direct cost loss has been completely filled, and if the wage for the suspension period is obtained again, there is repeated compensation, which is not in line with the principle of civil compensation. Summary: Judging from the search results, local courts have not formed a unified judgment on the question of whether the lost work fee and the salary during the work-related injury caused by the infringement of the third party can be obtained at the same time. Therefore, disputes involving this issue should be judged and considered in combination with the region. This article has no theoretical elaboration, only from a practical point of view to sort out the three issues related to the suspension of pay period, if you can help colleagues in litigation or non-litigation issues encountered, the author is deeply honored.
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"Administrative Litigation Vision" (II) | Administrative Litigation Jurisdiction
Foreword The scope of accepting cases in administrative litigation is to solve the problem of the division of authority between the people's courts and other state organs in handling administrative cases, and to solve the problem of external division of labor, while the jurisdiction of administrative litigation is to divide the division of authority between the people's courts at all levels within the people's court system and between the people's courts at the same level, and to solve the problem of internal division of labor. In a sense, the scope of accepting cases determines the scope of administrative cases for the entire people's court from a macro perspective, while jurisdiction determines the scope of administrative cases for a single people's court from a micro perspective. The Concept of 1. Administrative Litigation Jurisdiction Administrative litigation jurisdiction refers to the division of authority between different levels and local people's courts to accept administrative cases of first instance. It is an important litigation legal system involving basic issues such as the organizational system of administrative trials and the protection of citizens' litigation rights. It is the division of jurisdiction between courts. The jurisdiction of administrative litigation is to solve the problem of which level and which court to sue when citizens, legal persons or other organizations believe that administrative acts belonging to the scope of court cases infringe upon their legitimate rights and interests. Jurisdiction is the division of powers of the people's courts to accept administrative cases of first instance. With the exception of railway transport courts, other special people's courts and people's tribunals do not hear administrative cases, nor do they examine and enforce cases in which administrative organs apply for the enforcement of their administrative acts. Jurisdiction is the division of authority between the higher and lower courts and the courts at the same level to accept administrative cases. In other words, the jurisdiction should solve the problem of division of competence between different trial levels and different regional courts at the same level. The division of jurisdiction does not include the division of second instance and retrial cases. We implement a four-level two-instance system. The second instance is the continuation of the first instance. The jurisdiction of the first instance case is determined, and the jurisdiction of the second instance case is determined accordingly. Chapter III of the Administrative Procedure Law has 11 provisions on the content of administrative litigation jurisdiction in China. For the people's court, it specifically clarifies the jurisdiction of administrative cases between the courts, that is, it stipulates which case should be accepted and tried by which court, and how the trial of administrative cases between different courts should be divided. For citizens, legal persons and other organizations, it solves the problem of which court to sue. In judicial practice, because the determination of jurisdiction is correct or not, it is often closely related to the fair trial of the case and the smooth implementation of the judgment results. It is even believed that "choosing the jurisdiction court is equivalent to winning half of the lawsuit". In procedural law, acts that violate the jurisdiction system in legal provisions are regarded as serious violations of procedural law. The Division Principle of 2. Administrative Litigation Jurisdiction (I) facilitate litigation. The jurisdiction of administrative litigation should be determined to facilitate the plaintiff, the defendant and other parties to carry out litigation, to facilitate their participation in litigation activities. (II) facilitate the correct, fair and effective exercise of judicial power by the people's courts. Facilitating the correct exercise of judicial power by the court includes the correct verification, determination of the facts of the case, and the correct application of legal norms. According to the provisions of the Administrative Procedure Law, the basic people's courts have jurisdiction over administrative cases of first instance. This provision includes factors that are local and nearby and facilitate the verification of facts. However, special customs administrative cases are highly professional and technical, and the jurisdiction of intermediate courts with better overall quality, level and conditions is conducive to the correct exercise of judicial power. (III) people's courts have an appropriate division of labor. When determining the jurisdiction of administrative litigation, we should consider the reasonable division of labor between the people's courts at all levels, so that the burden of a certain level of court should not be too heavy. The trial workload between the courts at the same level should be reasonably divided, and the trial power and trial workload between the upper and lower courts should also be reasonably distributed. The Level Jurisdiction of 3. Administrative Litigation (I) the jurisdiction of the four courts According to Chapter III of the Administrative procedure Law, the jurisdiction of the four-level courts is: the basic people's court has jurisdiction over administrative cases of first instance. The Intermediate People's Courts shall have jurisdiction as courts of first instance over the following administrative cases: cases involving lawsuits against administrative acts undertaken by departments under the State Council or local people's governments at or above the county level; cases handled by the Customs; major and complex cases within their respective jurisdictions; and other cases under the jurisdiction of the Intermediate People's Courts as prescribed by law. The Higher People's Courts shall have jurisdiction over major and complicated administrative cases of first instance within their respective jurisdictions. The Supreme People's Court has jurisdiction over major and complicated administrative cases of first instance throughout the country. According to the interpretation of the Supreme People's Court on the application of the Administrative Procedure Law (hereinafter referred to as the Judicial Interpretation of the Administrative Procedure Law), major and complex cases within the jurisdiction include joint litigation cases with significant social impact, foreign-related or involving Hong Kong Special Administrative Region, Macao Special Administrative Region, Taiwan Region, and other major and complex cases. The Implementation Measures of the Supreme People's Court on Improving the Pilot Reform of the Positioning of the Trial-level Functions of the Four-level Courts (Law [2021] No. 242, hereinafter referred to as Notice No. 242) supplements the jurisdiction of the four-level courts. Article 2 stipulates that the following administrative cases of first instance in which the people's government at the county or prefecture level is the defendant shall be under the jurisdiction of the grass-roots people's court: cases of disclosure of government information; cases of failure to perform legal duties; cases in which the administrative reconsideration organ does not accept or procedure rejects the application for reconsideration; and cases of administrative adjudication of disputes over the ownership of natural resources such as land and forests. The people's courts at all levels perform their respective duties, and the basic people's courts focus on accurately ascertaining the facts and resolving disputes in substance; the intermediate people's courts focus on the effective and final adjudication of the second instance and the precise determination of disputes; the higher people's courts focus on retrial to correct errors in accordance with the law and unify judgment standards; the Supreme People's Court supervises and guides the trial work throughout the country to ensure the correct and unified application of the law. (II) upgrading jurisdiction To raise the level of jurisdiction is to raise the level of jurisdiction over a case. Article 24 of the Administrative Litigation Law stipulates that people's courts at higher levels have the power to hear administrative cases of first instance under the jurisdiction of people's courts at lower levels. If a people's court at a lower level deems it necessary for a people's court at a higher level to try or designate jurisdiction over an administrative case under its jurisdiction as first instance, it may report to the people's court at a higher level for a decision. Article 4 of Circular No. 242 stipulates that if the basic people's court considers that the first instance civil, criminal and administrative cases under its jurisdiction belong to one of the following circumstances and need to be tried by the intermediate people's court, it may report to the people's court at the next higher level for trial: those involving major national interests and social public interests and should not be tried by the basic people's court; It belongs to a new type within its jurisdiction and the case is difficult and complicated; it has guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment of the people's court at the next higher level or the basic people's courts within its jurisdiction has taken effect in the past three years, which have not been resolved as of the time of the trial; the first instance of the intermediate people's court is more conducive to a fair trial. If the intermediate people's court considers that the civil, criminal, or administrative cases of first instance that have been accepted by the basic people's court under its jurisdiction belong to one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. Article 5 stipulates that if an intermediate people's court considers that a civil, criminal, or administrative case of first instance under its jurisdiction falls under one of the following circumstances and needs to be tried by a higher people's court, it may report to the people's court at the next higher level for trial: it is of guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment has taken effect in the past three years between the people's courts at the people's courts at the next higher level or the intermediate people's courts within their jurisdiction, the case has not been resolved by the time of trial; the first instance by a higher people's court is more conducive to a fair trial. If the higher people's court considers that a civil, criminal or administrative case of first instance that has been accepted by the intermediate people's court under its jurisdiction falls under one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. The above rule that "the higher court can only raise the jurisdiction level of administrative cases but not lower the jurisdiction level" is conducive to avoiding the phenomenon of controlling the final outcome by demoting administrative cases first and then second instance. The Level Jurisdiction of (III) Reconsideration Cases With regard to the level jurisdiction of reconsideration cases, Article 134 of the Administrative procedure Law stipulates that in cases where the reconsideration organ is a co-defendant, the administrative organ that made the original administrative act shall determine the level jurisdiction of the case. Administrative reconsideration cases are different from the principle of "high not low" in determining the level of jurisdiction by the co-defendants, that is, the higher court corresponding to the two defendants is selected as the jurisdiction court, but the administrative organ that made the original administrative act clearly determines the level court. (IV) the level of jurisdiction of co-defendants In general, administrative litigation is under the jurisdiction of the basic court where the defendant is located, but when there are multiple defendants and the level of the defendant is different, there is a competition of jurisdiction. In this case, the principle of "higher than lower" is adopted to determine the level of jurisdiction by the highest-ranking administrative organ among the co-defendants. However, when the "department of the State Council or the local people's government at or above the county level" with a higher level of the co-defendant is considered to be not a qualified defendant after examination after filing the case, the administrative organ with a lower level in the same case is no longer under the jurisdiction of the high-level people's court. However, after the case has been heard in court and a certain review of the administrative actions made by the lower-level administrative organs, it is found that the higher-level administrative organs are not qualified defendants. In order to save judicial resources, the people's court can follow the Administrative Procedure Law. Article 24 stipulates that "the people's court at a higher level has the right to hear administrative cases of first instance under the jurisdiction of the people's court at a lower level". Continue to hear the case. If the court in charge of the case considers that there is a suspicion of taking the opportunity to raise the level of jurisdiction or has justifiable reasons to believe that it is not appropriate to continue the trial of the case, it may not help itself to try the case, and after ruling to reject the prosecution against a higher-level administrative organ, transfer the case to the people's court at a lower level with jurisdiction. The Geographical Jurisdiction of 4. Administrative Litigation The geographical jurisdiction of administrative litigation refers to the division of labor between the people's courts at the same level and in accordance with their respective jurisdictions for the trial of administrative cases of first instance. Geographical jurisdiction is based on the determination of the level of jurisdiction, from the horizontal to determine which court to accept administrative cases. (I) general territorial jurisdiction The basic principle of general territorial jurisdiction is that the plaintiff is the defendant, that is, the administrative case is under the jurisdiction of the people's court where the administrative organ that originally made the administrative act is located. General territorial jurisdiction is the basic method to determine the territorial jurisdiction of administrative litigation, and if there is no special provision, the court where the defendant is located is the competent court. (II) special territorial jurisdiction General territorial jurisdiction is the basic principle for determining the jurisdiction of the court, but special territorial jurisdiction takes precedence over general territory. If the law expressly provides that administrative cases are subject to the jurisdiction of a particular court, the principle that the plaintiff is the defendant cannot be applied. Unlike civil litigation cases, special people's courts do not hear administrative cases unless approved by the Supreme Court. Therefore, the exclusive jurisdiction of specialized courts cannot be applied to administrative litigation cases. The special territorial jurisdiction of administrative cases is mainly real estate cases. Article 20 of the "Administrative Litigation Law" stipulates that administrative litigation initiated by real estate shall be under the jurisdiction of the people's court where the real estate is located. Article 9 of the judicial interpretation of the administrative procedure law makes it clear that "administrative litigation due to real estate" refers to the litigation brought by the change of real property rights caused by administrative acts. If the real estate has been registered, the location recorded in the real estate register shall be the location of the real estate; if the real estate has not been registered, the actual location of the real estate shall be the location of the real estate. Therefore, not all cases related to real estate are under the jurisdiction of the court where the real estate is located. Only cases where the real estate right is established, changed, transferred, and eliminated directly due to the change of the real estate right, that is, the administrative action directly leads to the establishment, change, transfer, and elimination of the real estate right. (For reference cases, see (2017) Supreme Law Application No. 8347) (III) joint jurisdiction Joint jurisdiction means that two or more courts have jurisdiction over the same administrative case. In this case, the plaintiff has a certain choice of competent court. With regard to administrative cases under joint jurisdiction, the Administrative Procedure Law and its judicial interpretations mainly provide for two situations of joint jurisdiction. The first is a lawsuit filed against administrative coercive measures that restrict personal freedom. Both the defendant's location and the plaintiff's location have jurisdiction (Article 19 of the Administrative Procedure Law). And as long as the administrative organ has taken administrative compulsory measures to restrict personal freedom and is based on the same fact, even if other administrative compulsory measures or administrative penalties are taken, the principle of joint jurisdiction of the place where the defendant is located plus the place where the plaintiff is located still applies (Article 8, paragraph 2, of the Judicial Interpretation of the Administrative Procedure Law). Second, in cases after reconsideration, the courts of the place where the administrative organ that initially made the administrative act and the place where the reconsideration organ is located have jurisdiction (Article 18, paragraph 1, of the Administrative procedure Law). For cases under joint jurisdiction, the plaintiff may choose any court with jurisdiction to file a lawsuit. If the plaintiff files a lawsuit in each court with jurisdiction, the court that first filed the case shall have jurisdiction (Article 21 of the Administrative Procedure Law). (IV) cross-administrative jurisdiction Cross-administrative jurisdiction is a breakthrough and innovation in the general territorial jurisdiction of the plaintiff on the defendant. In cross-administrative jurisdiction, the court where the defendant is located is not the only court with jurisdiction, and the plaintiff may choose any other court that meets the requirements across regions as the jurisdiction court. The determination of cross-regional jurisdiction of administrative cases requires the approval of the Supreme People's Court, and the Higher People's Court determines the court's cross-regional jurisdiction over administrative cases based on the actual situation of the trial work (Article 18, paragraph 2, of the Administrative Procedure Law). Cross-administrative jurisdiction is conducive to reducing the local government's interference in the independent judicial power of the judiciary, and is conducive to maintaining the independence and impartiality of the judiciary. Taking the cross-administrative jurisdiction of Jinan City as an example, after the approval of the Supreme People's Court, the Higher People's Court of Shandong Province issued Lu Gao Fa Ming Chuan [2019] No. 290 "On Forwarding<最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>的通知》，确定济南两级人民法院自2019年10月1日起开展跨行政区域管辖行政案件改革试点工作。将基层人民法院管辖区域划分为东、中、西三个管辖片区，将各个区（市/县）划分至三个管辖片区中。对属于基层人民法院管辖的一审行政诉讼案件，原告既可以向最初作出行政行为的行政机关所在地基层人民法院提起诉讼，也可以向同一片区内其他基层人民法院提起诉讼。 （五）行政协议约定管辖 与民事争议中的合同或者其他财产权益纠纷相同，有关行政协议的行政纠纷，当事人也可以书面协议约定选择被告所在地、原告所在地、协议履行地、协议订立地、标的物所在地等与争议有实际联系地点的人民法院管辖，但违反级别管辖和专属管辖的除外（《最高人民法院关于审理行政协议案件若干问题的规定》第七条）。 五、移送管辖和指定管辖 （一）移送管辖 移送管辖是对管辖错误所采取的一种纠正措施，是指人民法院将不属于自己管辖的案件移送到有管辖权的人民法院。移送管辖主要包括</最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>
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"The King of Fairy Tales" is a classic monthly fairy tale that I have read since I was a child. Cpaing and Rusisi are also "good friends" who accompanied me to grow up. Even now, when I see "Shuke Shuke, Shuke, who flies a plane; Beta Beta, Beta, who drives a tank," I can't help but sing. However, I was still surprised when I saw that Mr. Zheng Yuanjie was forced to suspend publication of "Fairy Tale King" in January 2022 because he devoted himself to trademark counterfeiting and rights protection. This also fully shows that "art comes from life and is higher than life", "accident and tomorrow do not know which will come first". In writing, I admire Teacher Zheng Yuanjie very much. Your work has influenced children for decades. This achievement is indeed enough to be proud. However, the author confirms that he is more professional than Mr. Zheng in trademark rights protection. After searching and analyzing many news reports and available public judgments and administrative ruling documents, the author has to say, Mr. Zheng, you are wrong. you really have to memorize this pot yourself! In many news articles, the author saw that Mr. Zheng mainly inquired about the files and review processes of the three trademarks, which are mainly aimed at "cpaing trademark No. 7197328, trademark No. 8229932, trademark No. 5423972, trademark struggle and rights protection", as follows: No. 7197328 Cpaing trademark No. 8229932 "Fairy Tale King" Trademark No. 5423972 "Shuke" trademark Judging from the above trademark files and the time of applying for invalidation, Mr. Zheng Yuanjie was indeed a little negligent. Take the trademark "cpaing" No. 7197328, which you spent the most energy on, as an example, and briefly analyze your mistakes. 1. Objection procedure error Judging from the process files, when the trademark entered the three-month preliminary examination announcement (June 27, 2010-September 27, 2010), you had already discovered the trademark and filed an application for trademark objection, but you filed an application for objection on the first day after the expiration (September 28, 2010), so it was bound to be rejected, thus missing the best time to protect rights. 2. Errors in the invalidation procedure According to the provisions of Articles 44 and 45 of the Trademark Law, applications for trademark invalidation may be filed at different times according to different legal bases. According to the news report and the author's analysis of the rights possessed by Mr. Zheng Yuanjie, Mr. Zheng believes that "Pipiru" is the name of the main character in the fairy tale "Pipiru and Lu Xixi" written by you, so it should not be registered as a trademark by others. There is no doubt that Mr. Zheng wrote the story of "Pipiru and Lu Xixi", and Mr. Zheng has the copyright of the story. It's just that copyright protects the expression of the work, not the author's thoughts, nor the name of the work, let alone the name of the story character. According to the principle of statutory rights, rights that are not expressly stipulated in the law do not constitute a right, that is to say, the names of characters in the story do not enjoy copyright. However, the law does not allow others to use the name of the role created by the author to seek illegitimate interests. After the continuous development of the law, the international community generally began to use a new name "commercialization right" to protect such interests, and in the application of trademark law, it is given the same status as other prior rights. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation (No. 19 [2020] of the current law) issued on January 10, 2017, implemented on March 1, 2017 and revised on December 23, 2020 clearly stipulates that "for works within the copyright protection period, if the name of the work and the name of the role in the work have a high reputation, the use of it as a trademark on the relevant goods can easily lead the relevant public to mistakenly believe that it has been approved by the right holder or has a specific connection with the right holder, and if the parties claim that it constitutes a prior interest, the people's court will support it." It can be seen that Mr. Zheng wanted to claim the prior right to the "Pipiru" trademark. The disputed trademark violated the provisions of Article 32 of the Trademark Law and applied for the invalidation of the trademark. However, it should be pointed out that if the claim of invalidity through this reason must be "within five years from the date of trademark registration" and "for malicious registration, the owner of a well-known trademark is not subject to the five-year time limit." Through the trademark process, it can be seen that Mr. Zheng applied for invalidation on May 25, 2018, which far exceeded the legal time limit of five years (September 28, 2015) from the date of trademark registration. Mr. Zheng did not make the request within five years. No matter intentionally or unintentionally, or just because he did not understand the law, he gave up this right. Therefore, when applying for invalidation, Mr. Zheng can only try to use "those who violate the provisions of Article 4, Article 10, Article 11, Article 12 and Article 19, paragraph 4 of this Law, or obtain registration by deception or other improper means" to circumvent the limit of more than five years. However, at present, teacher Zheng has not received support for this reason. Therefore, the trademark "Pipiru" No. 7197328 was maintained and registered after court hearing. In this invalidation case, the Beijing Higher People's Court has issued (2019) Jingxing Final Administrative Judgment No. 10150, and the State Intellectual Property Office has also implemented the judgment and maintained the registration of the trademark. The reasoning part of the judgment clearly pointed out that the three characters "Pipiru" have neither adverse effects, nor will they bring about misidentification of characteristics such as quality, and there is no case of registration by improper means, and registration should be maintained in accordance with the law. In order to balance the interests and stabilize the trademark status, China's Trademark Law gives the prior right holder five years to claim the right, and if he does not claim it for five years, it will be regarded as a waiver. There is always a time limit for the protection of rights. Therefore, the trademark "Pipiru" No. 7197328 is indeed legally registered, which has nothing to do with morality. Through the above analysis, it can be seen that Mr. Zheng Yuanjie has made many mistakes in the process of safeguarding his rights for 10 years, which has caused this embarrassing situation. As a professional intellectual and a reader of Mr. Zheng for many years, I really admire Mr. Zheng for devoting all his energy to trademark rights protection by stopping the publication of "The King of Fairy Tales". We really need this kind of "true" spirit of rights protection at present, but we should also remind you-copyright owners, name owners, name owners, design patent owners and other prior rights holders, we should pay attention to the situation of other people's registered trademarks in time. If we encounter the trademark being registered maliciously by others, we must timely submit a request for invalidation. We must not delay the five-year legal period after the trademark is approved and registered. Otherwise, after five years, it will really increase the difficulty of safeguarding their rights for no reason, and even cause irreparable consequences. Naturally, the best way is not to be invalidated after being registered, a better corporate trademark strategy, and look at the next decomposition.
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[brief case]] On August 22, 2016, Wang mou signed an insurance contract with an insurance company to insure employer's liability insurance. the insurance period is from August 23, 2016 to August 22, 2017. the insured amount of each employee is casualty 800000 yuan, the insured amount of medical expenses is 80000 yuan, and the total insurance premium is 161280 yuan. the second paragraph of article 24 of the employer's insurance clause states that "if the applicant requests to terminate the insurance contract after the insurance liability starts, the insurance contract, the insurance contract shall be terminated, the insurer shall charge the premium for the period from the date of commencement of the insurance liability to the date of termination of the contract at the short-term rate specified in the table below, and refund the remaining portion of the premium. The part of the insured period of less than one month is charged on a monthly basis"; in addition, the two parties also signed a "payment agreement", which stipulates that the insurance premium shall be paid in installments. The agreement states: "The insurer and the insured have agreed to reach a cost payment agreement. This agreement is an integral part of the insurance contract. The insurance premium under this insurance contract will be paid by the applicant in the following way: the insurance premium will be paid in installments 1. the premium amount will be 48384 yuan, and the delivery date will be 2016.8.22;2. The premium amount will be 112896 yuan, and the delivery date will be 2016.12.31. If the policyholder fails to pay the premium as agreed, the insurer will bear the corresponding insurance liability in proportion to the actual premium paid to the total premium after the insurance accident". The payment agreement is stamped with a special seal for the appellee's underwriting business, and the operator has the signature of "Sun. After the contract was signed, Wang paid the first premium of 48384 yuan, but the final premium was not paid. In mid-December 2016, Sun called Wang to pay the premium. Wang said that he would no longer pay the premium and asked to terminate the insurance contract. Later, Sun informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Due to a dispute over the delivery of the final premium, an insurance company sued Wang to the court. After hearing, the court ruled that the 1. Wang should pay an insurance company's premium of 112896 yuan within 10 days after the judgment came into effect. 2. dismiss other claims of an insurance company. After Wang filed an appeal, the court of second instance made a judgment on August 29, 2018, and ordered the cancellation of the first-instance judgment. The appellant Wang paid the appellee an insurance company insurance premium of 32256 yuan within 10 days from the effective date of the judgment. Other claims of an insurance company of the appellee. Because of not accepting the final judgment, an insurance company applied to the Shandong Higher People's Court for a retrial, and the court ruled that an insurance company's retrial application was rejected after review. focus of controversy] The focus of the dispute in this case is mainly whether the policyholder notifies the third party involved in the case whether the termination of the insurance contract will have the effect of the termination of the contract. The court of first instance held that] Wang signed an insurance contract with an insurance company, the two sides agreed on the insurance period and liability, an insurance company in accordance with the contract has settled Wang's insurance accident, the insurance contract signed by both parties has taken effect and has been performed, Wang should pay all the premiums in accordance with the contract. An insurance company demanded Wang's 112896 yuan premium in arrears, which did not violate relevant laws and regulations and supported it. Wang's claim on the termination of the performance of the contract is not supported by evidence and is not supported. The court of second instance held that] In the opinion of the Court, Article 35 of the Insurance Law stipulates: "The policyholder may pay the full premium or the premium in instalments to the insurer in accordance with the contract." During the second instance, the appellant approved the authenticity of the copy of the payment agreement submitted by the appellant, and the payment agreement stipulated that the insurance premium involved was paid in installments. The appellant paid the initial premium as agreed and the final premium was not paid. However, the appellant claimed that he had notified Sun Mou, the manager of the insurance involved, before the expiration of the final premium, to request the termination of the insurance contract, to stop paying the premium, and to apply for Sun Mou to testify in court. The Court believes that the payment agreement involved in the case is stamped with a special seal for the appellee's underwriting business, and the handler has Sun's signature. The appellee also recognizes the authenticity of the payment agreement submitted by the appellee. Therefore, Sun's identity as the insurance handler involved in the case is confirmed by the Court. Sun testified in court that in mid-December 2016, he called the appellant for the premium, and the appellant had made it clear that he would no longer pay the premium and would terminate the insurance contract. Sun informed the person in charge of the appellee of the appellee's intention to terminate the insurance contract. Sun has no legal interest with the appellant, and the witness testimony issued by him as the insurance agent involved in the case is objective, and the court accepts the witness testimony. According to Article 24 of the employer's liability insurance clause involved in the case, the insurance contract shall be terminated from the date of notification to the appellee, and the appellee shall actually insure for five months, with an annual rate of 50%, so the total premium payable by the appellant shall be 80640. The appellant has already paid the insurance premium of 48384 yuan and must pay another insurance premium of 32256 yuan. To sum up, the original court found that the facts were wrong and should be corrected. The retrial court held that] In this case, an insurance company recognized the authenticity of the payment agreement submitted by Wang, because the person in charge of the payment agreement had Sun's signature and stamped with a special seal for the business of an insurance company, Wang had reason to believe that Sun had the right to handle the insurance business involved on behalf of an insurance company. In the original trial, Sun appeared in court to confirm that he had informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Sun and Wang have no legal interest, and the witness testimony issued by him as the insurance agent involved in the case is objective. According to Article 24 of the employer's liability insurance clause involved in the case, the original judgment determined that since Wang notified an insurance company From the date, the insurance contract involved in the case was terminated, and it was not improper to determine the facts and apply the law. To sum up, the retrial application of an insurance company does not conform to the provisions of items 2 and 6 of Article 200 of the the People's Republic of China Civil Procedure Law. In accordance with the first paragraph of Article 204 of the the People's Republic of China Civil Procedure Law and the second paragraph of Article 395 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the ruling is as follows: Reject an insurance company's retrial application. Lawyer comment] Appreciative agency refers to a system that belongs to the unauthorized agency, but because of the cause attributable to the agent, causes the appearance or appearance of the authorized act, causes the good faith and no fault of the relative person to believe that the unauthorized agent has the power of agency and carries out legal acts with it, and the law provides for the same effect as the right to act. The constituent elements of apparent agency include:(1) the agent does not actually have the power of agency;(2) the actor has the appearance of being granted the power of agency;(3) the relative believes that the actor has the power of agency and is in good faith and without fault;(4) the relative performs legal acts with the actor based on the trust of the power of agency;(5) The appearance or appearance of the actor who is granted the power of agency can be attributed to the agent. In this case, the payment agreement involved in the case is stamped with a special seal for the underwriting business of the insurance company, and the handling person has the signature of a third person, Sun. Based on reasonable trust and the appearance of the agency, the insured Wang will no longer pay insurance premiums and terminate the insurance contract. The intention is to inform Sun that the insurance company has no evidence to prove that the appearance of the agency cannot be attributed to itself, and there is no evidence to prove that the policyholders are malicious, therefore, it should be regarded as an apparent agent, the policyholder Wang to the third person Sun a notice of the validity of the termination of the contract and the insurance company, at this time, the agent, that is, the insurance company may not claim no right to act against the agent.
2021-12-27
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
