Viewpoint... A review of mortgage issues in land expropriation.

Brief of the case In September 2010, a bank and a company signed a maximum mortgage contract, a company to land and real estate for the loan to provide mortgage guarantee, for mortgage registration. In 2014, the land and real estate used for mortgage were demolished by the government because of municipal projects, and the mortgage was lost. A bank sued the court to confirm that the compensation for the demolition of the mortgaged property has the right of priority within the scope of the principal and interest. The court held that there was insufficient evidence in the claim of a certain bank, so it rejected the claim of a certain bank. case assessment The reason why the court in this case did not support a bank to receive priority compensation for demolition and relocation is: The land and real estate mortgaged in this case were demolished by the government due to municipal projects, and the collateral was lost. According to Article 80, paragraph 1, of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Security Law, "in the event of loss, damage or expropriation of the mortgage, the mortgagee may give priority to the payment of insurance money, compensation or compensation for the mortgage". And Article 174 of the the People's Republic of China Property Law stipulates that "during the period of security, if the secured property is damaged, lost or expropriated, the security interest holder may give priority to the insurance money, compensation or compensation obtained". Therefore, a bank has a priority right to be paid for the mortgage demolition paid by the government department. However, a bank should bear the burden of proof whether the government compensates and how much it should compensate. However, none of the banks provided evidence, so the court held that "the priority compensation for demolition and relocation claimed by a bank will not be dealt with temporarily, and another claim can be made after the bank has corresponding evidence". Summary of practical experience Don't forget the past, the teacher of the future. To avoid similar failures in the future, the following recommendations are made: Based on the basic principle of "who claims who gives evidence" in the Civil Procedure Law, after the mortgage is levied, the mortgagee shall list the relevant evidence to prove whether the mortgagee has received compensation and the specific amount of compensation when the mortgagee claims priority compensation for the mortgage. For example, the mortgagee may collect the collection announcement of the mortgage and find information about the collection compensation.

2021-12-26

Corporate Litigation Study... Corporate litigation rules of the company promoter liability dispute.

Foreword The company law person is the main subject engaged in commercial activities, when the company is still in the initiation stage, at this time the company is not established, does not have the ability to independently assume civil liability. The promoter is the representative organ and executive organ of the established company, and conducts civil activities on behalf of the established company. Through the relevant legal provisions and supplemented by cases, this paper briefly combs the judicial practice of the liability disputes of the company's sponsors. 1. related regulations 1. Company Law of the People's Republic of China Article 94 the promoters of a joint stock limited company shall bear the following responsibilities: (1) when the company cannot be established, they shall be jointly and severally liable for the debts and expenses arising from the establishment; when the (II) company cannot be established, they shall be jointly and severally liable for the return of the shares paid by the subscribers and the interest on the bank deposits for the same period; (III) in the process of the establishment of the company, the interests of the company are damaged due to the fault of the promoters, the company shall be liable for compensation. 2. (II) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. 3. (III) of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law Article 1 The persons who, for the purpose of establishing a company, sign the articles of association, subscribe for capital contributions or shares from the company and perform the duties of establishing the company shall be recognized as the promoters of the company, including the shareholders of the limited liability company at the time of its establishment. Article 2 If the promoter signs a contract in its own name for the establishment of the company, and the counterparty to the contract requests the promoter to bear the contract liability, the people's court shall support it; if the counterparty to the contract requests the company to bear the contract liability after the establishment of the company, the people's court shall support it. Article 3 If the promoter signs a contract in the name of the established company, and the contract counterpart requests the company to bear the contract liability after the establishment of the company, the people's court shall support it. After the establishment of the company, there is evidence to prove that the promoter used the name of the company in the establishment to sign a contract with the counterparty for its own benefit, and the company claims not to bear the contract liability on this ground, the people's court shall support it, except for the relative person's good faith. Article 4 If a company is not established for some reason, the people's court shall support the creditor's request that all or part of the promoters bear joint and several liability for the expenses and debts arising from the establishment of the company. If some of the promoters, after assuming the responsibility in accordance with the provisions of the preceding paragraph, request the other promoters to share the responsibility, the people's court shall order the other promoters to share the responsibility in proportion to the agreed responsibility; if there is no agreement on the proportion of responsibility, the responsibility shall be shared in accordance with the agreed proportion of capital contribution; if there is no agreement on the proportion of capital contribution, the responsibility shall be shared in accordance with equal shares. If the company is not established due to the fault of some of the promoters, and the other promoters claim that they bear the expenses and debts arising from the act of establishment, the people's court shall determine the scope of liability of the party at fault according to the circumstances of the fault. Article 5 If the promoter causes damage to others due to the performance of the company's establishment duties, and the victim requests the company to bear the liability for tort compensation after the company is established, the people's court shall support it; if the company is not established and the victim requests all the promoters to bear joint and several liability, the people The court shall support it. After the company or the promoter without fault has assumed the liability for compensation, it may recover the compensation from the promoter at fault. Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. Four situations in which the 2. promoter is liable 1. Sponsor liability in the event of failure to establish a company Since the established company does not yet have an independent legal personality, it is legally considered a partnership between the promoters. If the company is successfully established, the creditor's rights and debts arising in the process of establishment shall be inherited by the company after the establishment; however, in the event of the failure of the establishment of the company, the relevant legal liabilities shall be jointly and severally borne by all promoters. In this regard, Article 4 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" clearly stipulates. 2. The liability of the promoter in the case of the establishment of infringement. The promoter is the legal authority of the established company, and the company shall generally be liable for the infringement caused by the performance of the establishment duties. Since the establishment of the company in the legal evaluation as a partnership between the promoters, if the company is not ultimately formed, the promoters should be jointly and severally liable for the tort. In this regard, Article 5 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law clearly stipulates. 3. Legal liability of the promoter in the event of a contract signed in its own name for the establishment of the company. According to the provisions of Article 23 of the the People's Republic of China Company Law, the establishment of a company must have a company domicile. Since the company has an independent legal personality only from the date of the issuance of the business license, the company is still in the establishment stage at the time of leasing the office space. At this time, it is common for the promoters to sign relevant lease agreements and decoration design contracts in their own name, especially when the company is in operational difficulties after its establishment, disputes will arise over how to perform the relevant contracts and how the promoters assume responsibility. In this regard, Article 2 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law gives the counterparty the right to choose, which stipulates that "if the promoter signs a contract in his own name for the establishment of a company, the people's court shall support the request of the counterparty to the promoter to bear the contractual liability. If the company confirms the contract stipulated in the preceding paragraph after its establishment, or has actually enjoyed the contractual rights or performed the contractual obligations, and the contract counterpart requests the company to assume the contractual liability, the people's court shall support it." From the perspective of judicial practice, the number of cases caused by the responsibility of the promoter in this case is relatively large, and the responsibility of the promoter is also more typical. 4. Liability for defects in capital contributions and joint and several liability for capital contributions According to the provisions of Articles 30 and 93 of the the People's Republic of China Company Law, after the establishment of the company, if the actual price of the non-monetary property contributed by the promoters as the establishment of the company is significantly lower than the price set in the articles of association, the difference shall be made up by the shareholder (promoter) who delivered the capital contribution; other shareholders (promoters) at the time of the establishment of the company shall bear joint and several liability. The third paragraph of Article 13 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that "shareholders who fail to perform or fail to fully perform their capital contribution obligations when the company is established, in accordance with paragraph 1 or paragraph 2 of this article If the plaintiff in a lawsuit requests the company's promoter and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the company's promoter assumes responsibility, it may recover compensation from the defendant shareholder." This provision extends the provision of joint and several liability between promoters in a joint stock company under article 93 of the the People's Republic of China Companies Act to a limited liability company for their respective capital contributions to the company. In addition, in accordance with the provisions of Article 13, paragraph 2 and Article 19 of the (III) of the Supreme people's Court on several issues concerning the Application of the the People's Republic of China Company Law, the creditors of the company may request shareholders who have not fulfilled their capital contribution obligations or have not fully fulfilled their capital contribution obligations to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the uncontributed capital, and such liability for repayment is not subject to the limitation of action. In the case of a limited liability company, the promoter's liability for false capital contributions in the process of establishing the company is transformed into the liability of the company's shareholders for false capital contributions after the company is established. Judicial Practice of 3. Sponsor Liability Dispute Internal legal liability of (I) promoters-company establishment disputes Case 1: Chen Yanping v. Han Kemin and the third party Liu Xiangquan and Liu Songyu Company Establishment Dispute [Henan Dengfeng Municipal People's Court (2007) Dengmin Yichu Zi No. 1437-2 Civil Judgment]] In this case, the company jointly funded by the four shareholders was not actually established. The court determines the proportion of each promoter's liability, taking into account the amount of funds that each promoter has not actually contributed and taking into account the conduct of each promoter in the course of the establishment of the company. Case 2: Li Haige v. Dong Daoming Sponsor Liability Dispute [Beijing Fangshan District People's Court (2014) Fang Min Chu Zi No. 02587 Civil Judgment (First Instance), Beijing Second Intermediate People's Court (2014) Er Zhong Min Zhong Zi No. 06590 Civil Judgment (Second Instance)]] Li Haige, Dong Daoming and other four people plan to jointly establish a limited company operating cosmetics, and signed a "cooperation agreement" for this purpose. After paying the capital contribution by Li Haige and others, Dong Daoming registered a shareholder as his own one-person limited company, Beijing Tianzi Weiye Cosmetics Co., Ltd. After the trial, the court held that Dong Daoming registered the target company as a one-person limited liability company, and its behavior violated the agreement of the cooperation agreement, resulting in Li Haige unable to achieve the purpose of the contract, and ordered the termination of the cooperation agreement and the return of Li Haige's investment principal and interest by Dong Daoming. External legal liability of (II) promoters-signing contracts in their own name for the establishment of companies Case 1: Qingdao Haidu Group Co., Ltd. v. Qingdao Zhongshan Paris Spring Department Store Co., Ltd. and Qingdao Siji Spring Department Store Co., Ltd. [Qingdao Intermediate People's Court (2014) Qing Min Er Shang Zhong Zi No. 979 Civil Judgment (Second Instance)]] Four Seasons Department Store is a limited liability company jointly initiated by Paris Department Store, Four Seasons Commercial Company and Ji Qinghuan. In the process of establishing the Four Seasons Department Store, Paris Department Store and Four Seasons Commercial Company issued a "Letter of Commitment" to the lessor Haitong Group in order to decorate the mall, stating that it will be the sixth month and the twelfth month after the establishment of Four Seasons Department Store. The decoration payment will be paid twice in the month. After the establishment of Four Seasons Department Store, it did not manage well, but in order to deal with related claims and debts, it signed an agreement with Haitong Group, stating that Four Seasons Department Store will pay for the relevant decoration. Qingdao Intermediate People's Court held that the appellee (Haidu Group) confirmed the contents of the Letter of Commitment signed by the appellee (Haidu Group) and the appellant (Paris Department Store) before the establishment of the Four Seasons Department Store by signing an agreement with Four Seasons Department Store, and Four Seasons Department Store had fulfilled some obligations to the appellee (Haidu Group), that is, the appellee (Haidu Group) has chosen to claim rights to Four Seasons Department Store through its actions, and can no longer require the promoter to bear responsibility in accordance with Article 2, paragraph 1, of the (III) for Judicial Interpretation of the Company Law. Case 2: Dispute over Construction Contract between Guangdong Baosheng Air Conditioning Equipment Engineering Co., Ltd. and Xu Guicheng and Guangzhou Shangliyuan Restaurant Management Co., Ltd. [Guangdong Zengcheng City People's Court (2013) Sui Zengfa Min Er Chu Zi No. 701 Civil Judgment (First Instance), Guangzhou Intermediate People's Court (2015) Sui Fa Min Er Zhong Zi No. 593 Civil Judgment (Second Instance)]] The People's Court of Zengcheng City, Guangdong Province, held in the first instance that the behavior of the Appreciation Liyuan Hotel to pay the project cost of the contract involved in the case to Baosheng Air Conditioning Company and the behavior of Baosheng Air Conditioning Company to issue invoices to the Appreciation Liyuan Hotel, all showed that the Appreciation Liyuan Hotel confirmed the contract involved in the case, and it has actually enjoyed the contractual rights and fulfilled the contractual obligations ...... And Baosheng Air Conditioning Company also knew that the contract involved was signed for the establishment of the Appreciation Garden Hotel when the contract was signed, and now the Appreciation Garden Hotel has been established in accordance with the law, so the rights and obligations of the contract involved should be enjoyed and assumed by the Appreciation Garden Hotel in accordance with the law, and accordingly confirmed that the subject of the contractual obligations involved is the Appreciation Garden Hotel. The court of second instance changed the judgment that the promoter, not the company, should bear the responsibility on the grounds that the court of first instance "did not exercise the right of interpretation and Baosheng Company did not choose the subject of responsibility. It should be pointed out that the counterparty exercises the right of choice on the premise that the company has exercised the right of intervention after its establishment, and the counterparty may request the company to assume contractual liability only after the company has expressed or implied its willingness to inherit the contractual rights and obligations. The above-mentioned "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" not only implements the principle of contract relativity, but also prevents the promoter and the promoter's creditors from abusing it by setting conditions for the relative to choose to request the company to assume responsibility Rights harm the company's interests in order to protect the company's legitimate property rights and interests from infringement. At the same time, it should also be noted that in the case of the promoter signing a contract in its own name for the establishment of the company, although the relative has the right to choose, but has no right to require the promoter and the company after the establishment of the contract. Case 3: Cai Boquan, Hubei Gedian Development Zone Chengxiang Clothing Co., Ltd. and Liu Hansen's Housing Lease Contract Dispute [Hubei Higher People's Court (2014) E Min Li Er Zaizong Zi No. 0008 Civil Ruling]] The Hubei Provincial higher people's Court held that Cai Boquan signed a house lease contract with Liu Hansen and, as a promoter, set up Yuchengxiang Company with the leased house as a factory building and registered it for industry and commerce. Chengxiang Company, as the actual lessee, uses the house and pays the rent. Cai Boquan and Liu Hansen signed a house lease contract behavior is the performance of duties, the actual subject of the contract is Yu Chengxiang Company, the contract rights and obligations should be borne by Yu Chengxiang Company. When the appellee Liu Hansen sued, he had clearly chosen Cai Boquan as the defendant in this case and asked him to bear contractual responsibility, which should be supported by the people's court. In the course of the lawsuit, Liu Hansen applied to pursue Yu Chengxiang Clothing Company as a co-defendant in the case to participate in the lawsuit, which is not in accordance with the law.

2021-12-26

Viewpoint | Three Private Lending Cases and Typical Significance

Case one: Li mou and sun mou are friends. On August 6, 2017, Li and Sun signed a loan contract. The two parties agreed that Sun requested a loan from Li for business activities. The amount of money Li lent to Sun was 240000 yuan, and the loan period was 12 months., From August 6, 2017 to August 5, 2018. The two sides agreed to an annual interest rate of 18%, that is, the annual interest of 43200 yuan. After the expiration of the term, Sun did not repay the principal and interest, and Li sued to the court, demanding Sun to repay the principal of the loan of 240000 yuan, the interest of 43200 yuan, and the overdue interest from August 6, 2018 to the date when the principal of the loan was actually paid. The court held that the interest of 43200 yuan during the loan period claimed by Li mou was in line with the contract and did not violate the legal provisions. the court supported it according to law. Overdue interest, based on the principal of 240000 yuan, is calculated at four times the one-year loan market quotation rate issued by the National Interbank Funding Center authorized by the People's Bank of China, and the excess is not supported. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (amended on December 23, 2020), the people's court shall support the newly accepted first-instance private lending cases after August 20, 2020, the loan contract was established before August 20, 2020, and the parties request to apply the judicial interpretation at that time to calculate the interest part from the establishment of the contract to August 19, 2020; for the portion of interest from August 20, 2020 to the date of return of the loan, the standard of interest rate protection under this provision at the time of prosecution is applied. In other words, using August 20, 2020 as the dividing line, interest is calculated after that point at four times the LPR at the time the contract was established, and exceeding that interest rate cap is an illegal debt and is not protected. Case two: Wu Mou and Duan Mou are friends. On October 19, 2018, Duan wrote an IOU for Wu Mou, stating that "Duan borrowed 200000 yuan from Wu Mou today, with an annual interest rate of 24%.". On the same day, Wu Mou transferred money to Duan 200000 yuan. After a refusal to repay the loan and interest, Wu filed a lawsuit with the court, requesting an order to return the principal of Wu's loan of 200000 yuan. Pay the loan interest of 87978 yuan from October 20, 2018 to August 19, 2020 calculated according to the annual interest rate of 24%. Pay the loan interest from August 20, 2020 to the actual repayment date, calculated at four times the market quoted interest rate for one-year loans. After hearing, the court held that Wu Mou transferred 200000 yuan to Duan Mou, Duan Mou issued an IOU for Wu Mou, and a private lending relationship was formed between Wu Mou and Duan Mou. Wu has filed lawsuits in the city's courts many times within two years. Combined with the interest and other expenses he agreed or actually received, Wu should be determined to constitute a professional lender, and the loan relationship between Wu and Duan is invalid. In addition to repaying the principal, Duan should also pay Wu's interest loss, based on 200000 yuan, calculated according to the loan market quotation interest rate published by the National Interbank Lending Center, from October 20, 2018 to the actual payment date. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, if a lender fails to obtain the qualification for lending in accordance with the law and repeatedly engages in paid private lending for many times within a certain period of time, it can generally be determined to constitute a professional lending act. Professional lending is business and for-profit. According to the law, combined with the trial practice, the same plaintiff or related plaintiff filed more than 5 private lending cases with the city's courts within two years, or the lender lends funds to the society for more than 3 times within two years, it can generally be determined that the lender's lending behavior is commercial. Private lending contracts formed as a result of professional lending practices are invalid. The borrower shall return the principal of the loan and the loss of interest during the period of occupation of the funds. Interest losses should generally be calculated in accordance with the loan market quotation rate published by the National Interbank Lending Center, and cannot be calculated in accordance with the high interest standard agreed in the private lending contract. Case three: Qi and Sun are friends. From February 21, 2019 to July 9, 2019, Qi transferred money to Sun's account four times, totaling 620000 yuan. Qi thought that Sun borrowed money from him on the grounds of business working capital, so Qi filed a lawsuit to order Sun to return the loan of 620000 yuan and pay the interest calculated according to the loan interest rate for the same period published by the National Interbank Lending Center, from March 26, 2021 to the date of actual payment. The defendant Sun a defense between the two sides is not a loan relationship but a partnership. The plaintiff Qi held an electronic transfer receipt, WeChat screenshots, short messages, telephone recordings, etc., claiming that there was a loan relationship between the two parties. The court held that the evidence of the partnership provided by the defendant Sun and the testimony of witnesses were not sufficient to prove that the two parties were in a partnership. Therefore, it is determined that there is a private lending relationship between the two parties, and the defendant Sun should repay the plaintiff Qi's principal of RMB 620000 yuan and interest. Typical meaning: Article 14 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases stipulates that "the plaintiff shall file a private lending lawsuit on the basis of creditor's rights documents such as IOUs, receipts and IOUs, and the defendant shall file a defense or counterclaim on the basis of the basic legal relationship, And provide evidence to prove that the creditor's rights dispute is not caused by the private lending behavior, The people's court shall try in accordance with the basic legal relationship." Article 16 stipulates: "If the plaintiff files a private lending lawsuit only on the basis of the transfer voucher of the financial institution, and the defendant defends that the transfer is to repay the previous loan or other debts of both parties, the defendant shall provide evidence to prove its claim." Article 73 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "If both parties adduce opposite evidence to the same fact, but there is no sufficient basis to deny the evidence of the other party, the people's court shall, in light of the circumstances of the case, judge whether the probative force of the evidence provided by one party is obviously greater than that of the evidence provided by the other party, and confirm the evidence with greater probative force." In this case, the proof of the evidence provided by the defendant Sun for the partnership between the two parties is not significantly greater than the proof of the evidence provided by the plaintiff Qi. The defendant Sun's defense claims have many doubts and are not supported.

2021-12-25

Viewpoint | Analysis of automatic turnover of workers

Employee turnover has become a prominent phenomenon, resulting in the plight of enterprise personnel management. After the employment dispute is sued, the court is also faced with the problem of vague qualitative and difficult fact-finding. In this paper, the author analyzes the situation and nature of the automatic turnover of employees in enterprises in the light of judicial practice, and puts forward the corresponding solutions. 1. the distinction between automatic separation and termination of the contract. According to the "Reply on the Handling of Unauthorized Resignation of Employees by Enterprises", automatic resignation means that the worker fails to perform the termination procedures when terminating the labor relationship, leaves the post without authorization, or leaves the unit without completing the termination procedures. For example, he left without permission because he resigned or asked to terminate the contract; or left without saying goodbye without explaining the reason; or "job-hopping" without authorization under the temptation of generous treatment. First of all, the automatic separation is different from the unilateral termination of the labor contract. Article 37 of my country's Labor Contract Law stipulates that under legal circumstances, workers have the right to terminate labor contracts with advance notice and immediate termination. The second paragraph of Article 38 stipulates that in the case where the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the laborer The labor contract can be terminated immediately without informing the employer in advance. In other words, except for the circumstances stipulated in the 38th of the Labor Contract Law, the laborer should inform the employer when exercising the right of advance notice and immediate termination. If the employee's automatic resignation does not meet the above-mentioned situation without prior notification to the employer and causes losses to the employer, he shall bear the corresponding liability for compensation in accordance with Article 90 of the Labor Contract Law. Secondly, automatic turnover is different from the employer to terminate the labor contract. As the worker resigns automatically, whether the labor relationship between the two parties is in a state of uncertainty, it is difficult for the employer to resign to determine the cause of the termination of the labor relationship, in practice, the employer often makes the decision to terminate the labor contract on the grounds of automatic resignation. Finally, automatic resignation is also different from the termination of the labor contract by consensus between the two parties. According to the provisions of Article 36 of the Labor Contract Law, the employer and the employee may terminate the labor contract by consensus. As an act of both parties, whether the laborer first proposes to terminate or the employer first proposes to terminate, as long as the other party agrees to reach an agreement, the labor contract can be terminated. Therefore, the first condition for the two parties to terminate the labor contract through consensus is the agreement between the laborer and the employer, and the automatic resignation of the laborer and the automatic resignation of the employer are not mutually agreed. Therefore, voluntary separation does not necessarily produce legal effects. In the case of non-compliance with the law, automatic resignation is the illegal termination of the labor contract by the laborer, and the employer can require the laborer to compensate for the loss based on the law. The decision of the employer to terminate the labor contract based on the fact of the worker is an act of unilateral termination of the labor contract by the employer. Identification and Treatment of 2. Automatic Turnover When the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the act of the laborer's automatic resignation is based on the labor contract law. According to the provisions of Article 8, paragraph 2, the labor relationship is terminated, and the employer may be required to pay economic compensation in accordance with Article 46 of the Labor Contract Law. When a worker leaves his job automatically, he does not propose to terminate the labor contract based on the circumstances stipulated in the first paragraph of Article 38 of the Labor Contract Law, and his automatic resignation shall be presumed to be resignation due to personal reasons. After the unilateral termination of the labor contract, the laborer's request for the employer to pay economic compensation cannot be supported. The most important dispute in the labor contract dispute is the dispute caused by the automatic resignation, that is, the employer unilaterally terminates the labor contract in accordance with the labor rules and regulations of the unit for the laborer who leaves the post without authorization and without justifiable reason. From the perspective of labor dispute handling practice, the main situations of automatic resignation are as follows: first, the laborer leaves without saying goodbye due to his own reasons, including physical quality, professional quality, communication ability, family changes, living environment and other factors; Second, the laborer's absenteeism reaches a certain period of time without reason, among which "absenteeism" refers to leaving the post without due leave formalities and without proper reasons; third, the laborers went abroad overdue. To deal with the above problems, attention should be paid to the following aspects: 1. Confirmation of the fact of automatic resignation To determine the automatic resignation of workers, three points should be grasped: first, the workers have the subjective will to leave the enterprise and are unwilling to return to the enterprise within the prescribed time limit; second, they have not fulfilled the relevant procedures or have not been approved by the enterprise although they have fulfilled the procedures; third, exceed the prescribed time limit. Article 6 of the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation" and Article 13 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases" both stipulate that the employer has made expulsion, removal, dismissal, and termination of labor contracts. If a labor dispute occurs due to decisions such as reducing labor remuneration and calculating the working years of the worker, the employer shall bear the burden of proof. As a manager, the employer is always in an active position, so the employer should bear the burden of proof for its claim of "voluntary resignation" of employees. For example, Article 14 of the (II) of Guiding Opinions on the Trial of Labor and Personnel Dispute Cases by the Higher People's Court of Jiangsu Province stipulates: "The laborer claims to be dismissed orally by the employer, while the employer claims that the laborer leaves the job automatically. The fact that the employee leaves the company automatically bears the burden of proof, and if the employer cannot prove it, it shall bear the adverse consequences." The employer may prove the fact that the worker has not provided labor without justifiable reasons by providing a complete attendance sheet. 2. Review of the legality of the termination of the labor contract by the employer If a worker leaves the post without permission and without proper reason without performing the leave formalities in accordance with the regulations, his behavior does not conform to the provisions of the law; according to the automatic resignation treatment, it is the act of the employer unilaterally terminating the labor contract in accordance with the labor rules and regulations of the unit. Therefore, to examine the legality of the employer's termination of the labor contract, it is also necessary to examine the legality of the rules and regulations on which the employer has made the basis for the termination of the labor contract, that is, whether it has been democratically formulated, whether it has been publicized or informed to the workers, whether the contents of the rules and regulations are legitimate, and whether the employer's decision to terminate the labor contract should be informed to the trade union and delivered to the workers. 3. Tilt to protect the rights and interests of workers and balance the interests of employers. The reason why the employer makes the decision to terminate the labor contract is the illegal behavior of the laborer. When dealing with such cases, it is not only necessary to strengthen the burden of proof of the employer and prevent the employer from illegally terminating the laborer who does not have the fact of automatic resignation, but also to consider the employer to terminate the labor contract in the case of the automatic resignation of the laborer, so as to prevent the expansion of enterprise losses and maintain the stability of employment. If the technical and management backbones needed for the production and operation of the enterprise "change jobs" without authorization regardless of the interests of the enterprise, this is not only treated as automatic resignation, but also investigated for compensation liability according to labor laws and regulations; if the enterprise has a large number of surplus employees in production, it is necessary to make more analysis when determining, focusing on whether the employees' failure to provide labor is justified. If a worker seriously violates labor discipline, the employing unit may terminate the labor contract in accordance with the provisions of paragraph 2 of Article 25 of the Labor Law. For example, Article 45 of the Opinions of the People's Court of Zhejiang Higher People's Court on Several Issues Concerning the Trial of Labor Dispute Cases stipulates that if the employee fails to go through the leave formalities without justifiable reasons and leaves the post without authorization for more than 15 consecutive days, the employer's rules and regulations shall be implemented in accordance with relevant regulations; if the employer's rules and regulations are not stipulated, the employer may terminate the labor contract on the grounds that the employee seriously violates labor discipline.

2021-12-25

Viewpoints... 10 of the most confusing legal issues in life insurance.

"Don't use probability thinking to explore risk, learn to use cost thinking to look at insurance; understand the basic legal function of insurance, have a sense of risk concern; consider whether your family finances can bear the cost if the risk occurs. Hedging the unaffordable cost (risk) with the affordable cost (premium) is the real meaning of insurance"-to encourage everyone. 1. Can we insure anyone with life insurance at will? You can't. Life insurance is insurance that takes the life and body of a person as the subject of insurance. The policyholder shall have an insurance interest in the insured at the time of the conclusion of the insurance contract. The insurance interest referred to here refers to the legally recognized interest of the insured's life and body. China's Insurance Law adopts the principle of combining interest doctrine and consent doctrine to determine whether the insured has an insurance interest in the insured. According to the provisions of the Insurance Law, the insured person can insure himself as the insured; he can also insure his spouse, children, parents, or other family members, close relatives who have a supporting, supporting or supporting relationship with him, or with him Workers with labor relations are insured. In addition, if the insured agrees that the insured shall enter into an insurance contract for his insurance, the insured shall also be deemed to have an insurance interest in the insured. The general principle is that when an insurance contract is concluded, if the insured does not have an insurance interest in the insured, the contract is invalid. -See Articles 12 and 31 of the Insurance Law. 2, after insurance, who can terminate the insurance contract? Policyholder. In general, after the establishment of an insurance contract, the policyholder may terminate the insurance contract, and the insurance company may not terminate the insurance contract at will, unless otherwise provided in the Insurance Law, or otherwise agreed in the insurance contract. However, when the insured terminates the insurance contract, the insured has the right to intervene. That is, in the event of inconsistency between the insured and the insured, the insured does not need the consent of the insured to terminate the insurance contract, but the insured may maintain the validity of the insurance contract by paying the insured an amount equivalent to the cash value of the insurance policy and notifying the insurance company. -See Article 15 of the Insurance Law and Article 17 of the Judicial Interpretation (III). 3, the policyholder did not fulfill the obligation to inform truthfully, whether the insurance company still bear the responsibility of compensation or payment of insurance benefits? Look at the time, look at the situation. When the insurance contract is concluded, if the insurance company makes an inquiry about the relevant situation of the insured, the policyholder shall inform it truthfully. China's Insurance Law adopts the mode of inquiry and notification, that is, the obligation of the policyholder to inform is limited to the scope and content of the insurance company's inquiry, and there is no need to inform the matters that the insurance company has not asked, and the important matters that can affect the insurance company's decision on whether to agree to underwrite or increase the insurance rate, rather than all the matters, which is conducive to safeguarding the interests of the policyholder, to prevent the insurance company from claiming the termination of the contract or refusing to bear the liability for the failure of the policyholder to fulfill the obligation of notification. According to the provisions of the Insurance Law, if the insured intentionally or due to gross negligence fails to perform the obligation of truthful disclosure, which is sufficient to affect the insurance company's decision whether to agree to underwrite or increase the insurance rate, the insurance company has the right to terminate the contract. However, the right of discharge shall be extinguished from the date on which the insurance company knows that there is a cause for discharge and shall not be exercised for more than 30 days. If the insurance contract has been established for more than two years at the time of the insurance accident, the insurance company shall not terminate the contract and shall be liable for compensation or payment of insurance benefits. If, at the time of the conclusion of the insurance contract, the insurance company already knows that the policyholder has not truthfully informed the situation, the insurance company shall not terminate the insurance contract. -See Article 16 of the Insurance Law and Articles 5 and 6 of the Judicial Interpretation (II). 4, life insurance contract how to determine the beneficiary? Appointed by policyholder or insured. The Insurance Law stipulates that the beneficiary is the person who has the right to claim insurance benefits designated by the insured or the insured in the life insurance contract. The insured or the insured may be the beneficiary. The appointment of the beneficiary by the insured shall be subject to the consent of the insured. If the insured is a person without civil capacity or a person with limited civil capacity, the beneficiary may be designated by his guardian. In addition, the insured or the insured may designate one or more persons as beneficiaries; if there are several beneficiaries, the insured or the insured may also determine the order and share of benefits. In addition, the insured or the insured may change the beneficiary and notify the insurance company in writing, but the insured must obtain the consent of the insured when changing the beneficiary. Under normal circumstances, the insured or the insured will designate the beneficiary as his spouse, children or parents, but sometimes it will also write "legal" or "legal heir". In this case, if the specific deceased beneficiary is not designated, it is impossible to avoid the payment of insurance money as the insured's estate to be distributed among the heirs again, so that the insurance itself has the exclusive benefit, seamless inheritance, rapid compensation, personal property attributes and other functions can not be realized. Therefore, it is recommended that you sort out your family's policies and adjust the beneficiaries appropriately. -See Articles 18, 39, 40, 41, 42 of the Insurance Law 5, the insured does not truthfully declare the age of the insured, can it? You can't. If the age of the insured declared by the insured is not true and his true age does not meet the age limit stipulated in the contract, the insurance company may terminate the contract and refund the cash value of the insurance policy in accordance with the contract. At the same time, the relevant provisions of Article 16 of the Insurance Law on the failure of the insured to perform the obligation of truthful notification cause the insurance company to exercise the right to terminate the contract. If the age of the insured declared by the policyholder is not true, resulting in the policyholder paying less or more than the premium payable, the insurance company may require the policyholder to pay or refund the premium, or pay the insurance premium in proportion to the premium paid (less) and the premium payable. -See Article 32 of the Insurance Act 6. Can parents insure multiple high-value life insurance contracts for their minor children on the condition of death? You can't. According to the provisions of the notice of the China Banking and Insurance Regulatory Commission, for the life insurance taken out by parents for their minor children, before the insured reaches adulthood, the total amount of insurance paid by the insured in each insurance contract and the actual payment by each insurance company at the time of the insured's death The total amount of insurance money shall be implemented according to the following limits: (1) For the insured under 10 years old, it shall not exceed 200000 yuan; (II) for the insured under 18 years old, no more than $500000. For example, the amount of aviation accident death insurance, the amount of accident death insurance for major natural disasters, as well as the insurance premium paid by the insured, the cash value of the contract at the time of the death of the insured, the value of the account, etc. are not calculated in the above limits. -See Articles 33 and 34 of the Insurance Act. 7, the insured committed suicide, intentional crime, the insurance company will not compensate? Look at the time, look at the situation. If the insured commits suicide within two years from the date of the establishment of the insurance contract or the restoration of the validity of the contract, the insurance company shall not bear the responsibility of paying the insurance premium, and the insurance company shall only refund the cash value of the insurance policy. However, after more than two years, if the insured commits suicide, the insurance company is liable for the payment of insurance benefits. If the insured commits suicide as a person with no capacity for civil conduct, the insurance company shall be liable for the payment of insurance benefits regardless of whether the establishment or restoration of validity of the insurance contract exceeds or is less than two years. If the insured intentionally commits a crime or resists the criminal coercive measures taken in accordance with the law, the insurance company shall not bear the responsibility of paying the insurance premium; if the insured has paid the insurance premium for more than two years, the insurance company shall refund the cash value of the insurance policy in accordance with the contract. -See Articles 44 and 45 of the Insurance Act. 8. If the insurance company pays compensation to the insured due to the actions of a third party, does the insured or beneficiary still have the right to claim compensation from the third party? The right to claim compensation. According to the provisions of the Insurance Law, if the insured has an insurance accident such as death, disability or illness due to the behavior of a third party, the insurance company shall not have the right to recover from the third party after paying the insurance money to the insured or beneficiary, but the insured or beneficiary shall still have the right to claim compensation from the third party. -See Article 46 of the Insurance Act. 9, the policyholder has paid the insurance policy and insurance premium, the insurance company has not yet issued the policy, at this time the insurance accident, the insurance company will not compensate? should be compensated. If the underwriting conditions are met, the insurance company shall bear the insurance liability; if the underwriting conditions are not met, the insurance company shall not bear the insurance liability, but shall refund the insurance premiums already collected. If the insurance company claims that it does not meet the underwriting conditions, it shall bear the burden of proof. -- See Article 4 of the Judicial Interpretation (II) of the Insurance Law. 10, life insurance company bankruptcy, our life insurance contract? Other life insurance companies took over. The life insurance business operated by insurance companies includes life insurance, health insurance, accident insurance and other insurance businesses. An insurance company engaged in life insurance business shall not be dissolved except as a result of division, merger or dissolution according to law. If an insurance company engaged in life insurance business is revoked or declared bankrupt according to law, the life insurance contract and liability reserve held by it must be transferred to other insurance companies engaged in life insurance business; if a transfer agreement cannot be reached with other insurance companies, the insurance company engaged in life insurance business shall be designated by the Bancassurance Regulatory Commission to accept the transfer. -See Articles 89, 92, 95 of the Insurance Act.

2021-12-25

Viewpoint... Basic issues of state-owned regulatory compliance.

国资监管合规具有很强的实践性，研究国资监管合规首先需要厘清国资监管机构的发展，从历史和发展的角度把握合规体系；需要以合规的概念刨析国资监管合规的具体内涵，明确我们建设怎样的合规体系；还需要从更深层次把握国资监管合规的意义，解决为什么要合规的问题；更需要掌握合规之“规”，为行为提供指引，所有这些都是国资监管合规的基本问题，这是我们企业合规体系建设的基石，有助于我们从更深层次理解和把握国资监管合规的精神实质，是我们国资监管合规体系建设的第一步，本文以上述基本问题为出发点，对上述问题作基本阐释，以期能对读者理解国资监管合规有所裨益。   一、从国资监管体系的建立与发展   （一）国资监管机构的变革：由国家国有资产管理局到国资委和财政二元监管模式   1、财政部管理的国家局：国家国有资产管理局(副部级)。1988年3月，经全国人大七届一次会议批准，国务院机构改革中唯一新增设的政府部门——国家国有资产管理局。这是建国后中国第一个专职从事国有资产管理的政府职能机构。1994年2月25日，国务院办公厅印发《财政部和国家国有资产管理局职能配置、内设机构和人员编制方案》，国家国有资产管理局为财政部管理的国家局(副部级)。   2、国务院国资委成立及二元监管模式的形成。2003年4月25日，国务院办公厅印发《国务院国有资产监督管理委员会主要职责内设机构和人员编制规定》，划入财政部有关国有资产管理的部分职责。国务院授权国有资产监督管理委员会代表国家履行出资人职责，监管范围是中央所属企业（不含金融类企业）的国有资产。对于其他未划入国资委的职责仍由财政部行使。从此，国资监管进入国资、财政二元监管时代。   2019年11月7日，国务院办公厅印发《国有金融资本出资人职责暂行规定的通知》，各级财政部门根据本级政府授权，集中统一履行国有金融资本出资人职责。   （二）国资监管机构权利来源及类型   1、国资监管权利来源于本级政府授权，具有很强的地域性。   （1）国务院和地方人民政府代表国家履行出资人职责。根据《中华人民共和国企业国有资产法》第四条规定，国务院和地方人民政府依照法律、行政法规的规定，分别代表国家对国家出资企业履行出资人职责，享有出资人权益。   （2）国有资产监督管理机构根据授权履行出资人职责。根据《企业国有资产监督管理暂行条例》第六条规定，国务院，省、自治区、直辖市人民政府，设区的市、自治州级人民政府，分别设立国有资产监督管理机构。国有资产监督管理机构根据授权，依法履行出资人职责，依法对企业国有资产进行监督管理。   2、国资监管机构类型   （1）国有资产监督管理委员会。根据《国有企业资产法》第十一条之规定，国有资产管理机构根据本级人民政府授权，代表本级人民政府对国家出资企业履行出资人职责。《企业国有资产监督管理暂行条例》第六条、第十二条规定，国有资产监督管理机构根据授权，依法履行出资人职责，依法对企业国有资产进行监督管理。国务院国有资产监督管理机构是代表国务院履行出资人职责、负责监督管理企业国有资产的直属特设机构。省、自治区、直辖市人民政府国有资产监督管理机构，设区的市、自治州级人民政府国有资产监督管理机构是代表本级政府履行出资人职责、负责监督管理企业国有资产的直属特设机构。   上级政府国有资产监督管理机构依法对下级政府的国有资产监督管理工作进行指导和监督。   （2）财政部门。根据《国有企业资产法》第十一条之规定，国务院和地方人民政府根据需要，可以授权其他部门、机构代表本级人民政府对国家出资企业履行出资人职责。实践中，财政部门监管的国有企业主要有金融资本、行政事业单位出资企业、文化企业。   根据《国有金融资本出资人职责暂行规定的通知》，各级财政部门根据本级政府授权，集中统一履行国有金融资本出资人职责。财政部门是行政事业资产的监督和管理机构，行政事业单位出资设立企业一般应由财政部门履行出资人监管职责。基于特定行业监管需要，文化企业通常也为财政部门履行出资人职责。   除此之外，部门地区国有资产较少，没有单独设立国有资产监督管理机构的，通常也由财政部门履行出资人职责。   二、从合规概念看国资监管合规   （一）合规概念   根据《中央企业合规管理指引（试行）》第二条规定，合规是指企业及其员工的经营管理行为符合法律法规、监管规定、行业准则和企业章程、规章制度以及国际条约、规则等要求。   由此可见，企业合规是以企业及员工的行为为载体，以法律法规、监管规定、行业准则、企业章程、规章制度，国际条约、规则为准绳，系规范行为以符合规定的动态过程。   （二）合规的类型   1、具体合规与全面合规。根据合规的所涉及的领域不同，企业合规可以划分为具体合规与全面合规。   具体合规，顾名思义，系企业某一业务领域的合规，包含合同管理合规、安全生产合规、企业投资行为合规、企业资产交易合规、企业财务合规、企业采购合规等各个企业业务领域。   全面合规，系将合规要求覆盖各业务领域、各部门、各级子企业和分支机构、全体员工，贯穿决策、执行、监督全流程；合规管理与法律风险防范、监察、审计、内控、风险管理等工作相统筹、相衔接，确保合规管理体系有效运行。   2、程序合规与实体合规。根据合规所符合的规范性质，企业合规可分为程序合规和实体合规。   程序合规，即企业和员工的行为符合规定中的程序性事项，比如说，在公司治理合规中，某项董事会决议事项是否按照董事会议事规则开展，是否按照章程规定履行党委会前置程序；在资产交易中，是否按照规定履行审计和评估程序等，都属于程序合规研究范畴。   实体合规，即企业和员工的行为符合规定中的实体内容，比如说，在公司治理合规中，董事会成员履行董事职责是否符合公司章程规定，是否勤勉尽责；在企业投资合规中，投资项目是否具有可行性等，都属于实体合规范畴。   （三）国资监管合规   国资监管合规，指国有企业全面合规重要组成部分，涉及企业公司治理、资产交易、企业投资、财务管理等主要领域，程序合规与实体合规并重，系指企业及其员工的经营管理行为符合法律规定、国资监管规定、企业章程、规章制度规定。   三、企业合规的意义   （一）积极意义：合规对于企业发展的积极作用   为推进法治国企建设，国务院国资委、山东省国资委等地方国资委相继印发《关于全面推进法治央企建设的意见》、《山东省国资委关于全面推进法治国企建设的意见》（鲁国资企改〔2015〕1号）等法治企业建设意见，充分阐释了法治企业即合规建设意义。   1、合规是依法治企需要，是国资监管部门对国企的基本要求。   随着依法治国的全面推进，国家保障公平竞争的法律规范将更加完备，政府职能转变、简政放权的深度广度将进一步加大，司法公信力将明显提高，全民法治观念将逐步增强。法治环境的新变化为国有企业做优做强提供了强大推动力，同时也对国有企业平等适用法律、公平参与竞争、依法合规管理提出了新的要求。建设“合规国企”有利于国有企业作表率、树形象，与各种所有制企业共同维护市场秩序和竞争环境。   2、合规企业软实力，有利提升企业竞争力，是企业实现稳健发展的必由之路。   近年来，国有企业资产规模不断扩大，但经济效益却没有同步增长，有的还遭遇较大风险。国内外大企业的经验教训表明，企业越大风险越多，可持续发展的要求越高，经营管理也越来越依赖法治。在我国经济发展新常态下，国有企业转调创改的任务重，提质增效的压力大，平衡短期效益与长期发展更加困难。只有祭起合规大旗，企业才能进一步规范经营管理，不断增强竞争力。   3、合规有利于防范企业潜在风险，降低风险、减少损失也是企业效益。   以法商融合、创造价值为核心，在扎实做好法律纠纷案件管理、合同管理、工商管理的同时，进一步拓宽法律风险防范领域，结合国有资本投资运营、完善公司治理机制、发展混合所有制经济等重点改革任务，严格法律审核，加强产权保护。在企业转型升级、创新驱动和国际化经营中，平衡风险与商机的关系，促进企业提质增效。建立统一的法律信息系统，运用信息化手段将法律风险防范嵌入到企业经营管理流程中并成为刚性约束。充分运用诉讼、仲裁等法律手段维护企业的合法权益，防止国有资产流失。   4、合规有利于规范员工行为，尽职免责，防范高管决策风险，促进企业健康发展。   合规建设是深化国资国企改革、建立现代企业制度的内在要求。未来几年，改建国有资本投资运营公司、健全国有资本投资运营体系，引入社会资本参与国有企业改革、发展混合所有制经济，健全公司法人治理结构、推行职业经理人制度等，必然带来相关利益的调整和法律关系的重构，工作的艰巨性和复杂性前所未有。改革越是艰巨复杂，就越要依法合规、坚守法律底线，杜绝违规操作，防止国有资产流失。只有全面提升依法治企能力，才能顺利完成各项改革任务，有效避免重大失误。   （二）消极意义：如不合规，将承担相应不利法律后果   1、不合规的民事责任风险。企业及企业员工因违规行为给他人造成损害的，应依法承担相应的民事责任。根据《民法典》第一千一百六十五条、一千一百六十六条之规定，行为人因过错侵害他人民事权益造成损害的,应当承担侵权责任。行为人造成他人民事权益损害,不论行为人有无过错,法律规定应当承担侵权责任的,依照其规定。   根据《公司法》第一百四十七条、一百四十九条之规定规定，董事、监事、高级管理人员应当遵守法律、行政法规和公司章程，对公司负有忠实义务和勤勉义务。董事、监事、高级管理人员执行公司职务时违反法律、行政法规或者公司章程的规定，给公司造成损失的，应当承担赔偿责任。   《企业国有资产法》第七十一条规定，国家出资企业的董事、监事、高级管理人员有“在企业改制、财产转让等过程中，违反法律、行政法规和公平交易规则，将企业财产低价转让、低价折股的”、“不如实向资产评估机构、会计师事务所提供有关情况和资料，或者与资产评估机构、会计师事务所串通出具虚假资产评估报告、审计报告的”、“违反法律、行政法规和企业章程规定的决策程序，决定企业重大事项的”、“其他违反法律、行政法规和企业章程执行职务行为的”等法定行为，造成国有资产损失的，依法承担赔偿责任。   2、不合规的行政责任风险。企业及企业员工违规行为违反有关行政监管规定，行政机关有权根据《行政处罚法》的规定对企业行政处罚。根据《行政处罚法》第三条之规定，公民、法人或者其他组织违反行政管理秩序的行为，应当给予行政处罚的，依照行政处罚法由法律、法规或者规章规定，并由行政机关依照行政处罚法规定的程序实施。   3、不合规的行政处分风险。《企业国有资产法》、《企业国有资产监督管理暂行条例》、《企业国有资产交易监督管理办法》等法律法规规章专章对违反监管规定的法律责任作出系统规定。此外，为加强和规范违规经营投资工作，国务院办公厅印发《关于建立国有企业违规经营投资责任追究制度的意见》，国务院国资委、各省国资委也相继出台企业违规经营投资责任追究实施办法，对违规经营投资责任作出规定。   根据上述规定，国有企业不合规行政处分类型主要有免职、警告，根据资产损失程度、问题性质等，对相关责任人采取组织处理、扣减薪酬、禁入限制、纪律处分、移送司法机关等方式处理。其中，组织处理。包括批评教育、责令书面检查、通报批评、诫勉、停职、调离工作岗位、降职、改任非领导职务、责令辞职、免职等。扣减薪酬。扣减和追索绩效年薪或任期激励收入，终止或收回中长期激励收益，取消参加中长期激励资格等。禁入限制。五年内直至终身不得担任国有企业董事、监事、高级管理人员。纪律处分。由相应的纪检监察机关依法依规查处。移送司法机关处理。依据国家有关法律规定，移送司法机关依法查处。以上处理方式可以单独使用，也可以合并使用。

2021-12-25

Viewpoint | Interpretation of the Notice on Regulating the Transfer of Assets of State-owned Financial Institutions

On December 7, the Ministry of Finance issued the "Notice on Regulating Matters Related to the Transfer of Assets of State-owned Financial Institutions" (referred to as "Caijin [2021] No. 102") to improve the transparency of the transfer of assets of state-owned financial institutions and regulate related assets Transaction behavior to safeguard the rights and interests of state-owned financial capital investors. This Notice is one of the supporting documents to implement the role of state-owned financial capital investors of the Ministry of Finance. 1. file overall architecture Caijin [2021] No. 102 "Notice" is mainly divided into three parts in terms of content structure. The first part is the guiding ideology and general tone throughout the full text of this document, that is, "in accordance with laws and regulations, adhere to the principles of equal compensation, openness, fairness and justice, and strictly prevent the loss of state-owned assets". The second part is the specific practical control of each link of the asset transfer of state-owned financial institutions, that is, "refine the application of the law, standardize the transfer method, reasonably determine the price, clarify the transaction process, etc". It reiterated the relevant provisions on all aspects of the procedures for the transfer of state-owned financial assets previously formulated by the Ministry of Finance. The third part is "information disclosure and regulatory improvement, the implementation of the main responsibility". It is emphasized that financial departments at all levels should strengthen the supervision and management of the transfer of assets of state-owned financial institutions at the same level and territorial central state-owned financial institutions. If it is found that the transferor has not implemented or violated relevant regulations or infringed on state-owned rights and interests, the transferor shall be required to immediately suspend or terminate the transfer of assets and report to the higher-level financial department. The three parts include the transfer principle, transfer method, transfer procedure, transfer price determination and transfer responsibility of financial state-owned assets, and put forward clear policy boundaries. Interpretation of 2. key content (I) Scope and Principles Caijin [2021] No. 102 "Notice" clearly summarizes the basic concept of the main body of state-owned financial institutions as wholly state-owned, wholly state-owned, state-controlled and actually controlled financial institutions (including their branches and subsidiaries at all levels with actual control). The transfer of assets of state-owned financial institutions should strictly abide by national laws, regulations and policies, give full play to the role of the market in allocating resources, and follow the principles of equal compensation, openness, fairness and justice. Where matters of government public administration are involved, the relevant examination and approval procedures shall be carried out in accordance with the provisions of the State. Ensure transparency in the transfer of assets, put an end to black-box operations, and strictly prevent the loss of state-owned assets. This is also the guiding ideology and general tone that runs through the full text. (II) Refine the application of the law according to the classification of assets. 1. The transfer of asset types to which the Measures for the Administration of the Transfer of State-owned Assets of Financial Enterprises (Order No. 54 of the Ministry of Finance) apply: first, the transfer of equity assets by state-owned financial institutions. The second is the transfer of financial assets, such as trust plans, asset management products and fund shares, where all the underlying assets are equity assets and enjoy floating income, unless otherwise stipulated by the state. At present, the supervision and management mode of state-owned assets in China is a two-line management mode in which the SASAC and the Ministry of Finance respectively supervise the enterprises and asset types they are responsible. The transfer of state-owned assets of financial enterprises shall be governed by the relevant provisions promulgated by the Ministry of Finance. This provision strengthens the supervision of equity assets, expands the scope of supervision involving the underlying assets, which are all equity assets, and provides a traceable reference scheme for their transfer. For the disposal, acquisition and management procedures of equity asset transfer, higher requirements are put forward for the professionalism and risk awareness of practitioners. 2. The transfer of asset types applicable to the Notice No. 102 of Caijin [2021]: First, the transfer of non-equity assets such as real estate, machinery and equipment, intellectual property rights, and related financial assets shall be subject to the provisions of the industry regulatory authorities. Second, the transfer of the underlying assets outside the country. Third, the normal conduct of business involves the transfer of assets, disposal of scrapped assets, judicial auctions, government expropriation of assets and so on. In addition, the transfer of financial institutions supported by state power and credit, which are included in the management of state-owned financial capital, shall be subject to the provisions of Circular No. 102. (III) implementation of the main responsibility Article 2 of the "Notice" of Caijin [2021] No. 102 proposes that the transfer of major assets should strictly implement the "three important and one large" decision-making system and follow the principle of "unified policies and hierarchical management", aiming to eliminate black-box operations and prevent state-owned assets Loss. The issue of clearly implementing the main responsibilities of all parties has long been found in China's state-owned financial capital supervision system. In the 2018 "Guiding Opinions of the Central Committee of the Communist Party of China and the State Council on Improving the Management of State-owned Financial Capital" (hereinafter referred to as the "Guiding Opinions"), it is clearly pointed out that "the current state-owned financial capital management still has scattered responsibilities, unclear powers and responsibilities, unclear authorization, The layout is not good, and the allocation efficiency needs to be improved, and the construction of the rule of law is not in place, clear the legal status of the funder, the realization of the right by the law, the power and responsibility of the statutory. Institutions that perform the duties of state-owned financial capital investors exercise relevant rights in accordance with the law, and assume management responsibilities in accordance with the principle of matching rights and responsibilities and equal rights and responsibilities." Then, in November 2019, the General Office of the State Council issued the Interim Provisions on the Responsibilities of State-owned Financial Capital Investors. On the basis of the Guiding Opinions, this provision further emphasizes the provisions of the Ministry of Finance at all levels to perform the responsibilities of investors. The structure paves the way for this asset transfer, and it also means that the distribution of powers and responsibilities will be implemented. It can be seen that to prevent the loss of state-owned assets, the implementation of the main responsibility, to put an end to black-box operations need to be down-to-earth, according to the map and a long way to go. (IV) transfer method Caijin [2021] No. 102 "Notice" stipulates that unless otherwise stipulated by the state, state-owned financial institutions shall not transfer assets to non-state-owned transferees by direct agreement without public bidding procedures. After the state-owned financial institutions have deliberated and decided in accordance with the authorization mechanism, they can transfer by direct agreement. With regard to the transfer of on-market agreements, article 22 of Decree No. 54 of the Ministry of Finance states that "when only one qualified intended transferee is produced through public solicitation by the property rights trading institution, the transfer of property rights may be carried out by means of on-market agreement transfer, but the transfer price shall not be lower than the listed price. In the case of an on-market agreement transfer, the transferor shall conduct full consultation with the transferee and sign an agreement on the transfer of property rights (contract, the same below) after properly handling the relevant matters involved in the transfer in accordance with the law." In the past, the transfer of state-owned assets will be restricted, and it will no longer be easy to trade directly through the transfer of state-owned assets. in addition, article 35 of decree no. 54 of the ministry of finance specifies three situations in which, with the approval of the state council or the financial department, the transferor may transfer state-owned property rights of unlisted enterprises and state-owned shares of listed companies by direct agreement, this "Notice" adds "the transfer of assets within the group, the withdrawal of performance in accordance with the investment agreement or the terms of the contract, the third party in accordance with the contract to exercise the preemptive right, the transfer of assets in specific industries to state-owned and state-controlled enterprises, and the financial department at the same level For other circumstances approved, after the state-owned financial institution deliberates and decides in accordance with the authorization mechanism, it can be traded by direct agreement. The above-mentioned special assets can be transferred by agreement in accordance with the law and the approval procedures, which is conducive to improving the efficiency of asset disposal, reducing costs, and ensuring the orderly transfer of state-owned financial assets. (V) recognition of the transfer consideration According to the Interim Measures for the Supervision and Administration of State-owned Assets Evaluation of Financial Enterprises (Order No. 47 of the Ministry of Finance), financial enterprises need to entrust asset evaluation institutions to conduct asset evaluation when transferring assets. Caijin [2021] No. 102 "Notice" stipulates the circumstances under which pre-evaluation can be exempted, including asset transactions with clear fair market value, asset transactions with low transfer target value (single asset value is less than 1 million yuan), asset transactions between wholly state-owned and wholly-owned financial institutions, and asset transactions between state-owned financial institutions and wholly-owned subsidiaries, as well as asset transactions between the holding subsidiaries of state-owned financial institutions that will not cause changes in the state-owned rights and interests owned by state-owned financial institutions, and that will not cause the loss of state-owned assets after being demonstrated by state-owned financial institutions or third-party intermediaries, it may not be evaluated after fulfilling the decision-making procedures in accordance with the law. Asset transactions with a clear market fair value may determine the transfer floor price by reference to the fair market value, and other asset transactions may determine the transfer floor price by reference to the fair market value, audited book value, etc. The regulation improves the efficiency of the disposal of state-owned assets, reduces costs and optimizes the allocation of capital. (VI) clarify the transaction process and price payment 1. Transaction Process Notice No. 102 provides for different methods of public trading, including entry trading, public auctions, online auctions and competitive negotiations. Among them, the "Notice" does not make a clear definition of competitive negotiation. The "Administrative Measures for Non-Bidding Procurement Methods of Government Procurement" (No. 74) promulgated by the Ministry of Finance has detailed management regulations on competitive negotiation: Competitive negotiation refers to "negotiation team negotiates with qualified suppliers on procurement of goods, projects and services, and suppliers submit response documents and final quotations according to the requirements of negotiation documents, the purchaser determines the procurement method of the closing supplier from among the closing candidates proposed by the negotiating team". The "Government Procurement Law" stipulates that competitive negotiations require the establishment of a negotiation team. The negotiation team is composed of an odd number of more than three representatives of the purchaser and relevant experts. The number of experts shall not be less than 2/3 of the total number of members. Correspondingly, Notice No. 102 stipulates that if competitive negotiation is adopted, more than three people should participate in the bidding; if other methods are adopted, the state has relevant regulations to implement them in accordance with relevant regulations, and there should be at least two people. The above participates in the bidding. When there is only one person bidding, an announcement must be made in accordance with the announcement procedure, and the announcement will be made 7 working days later, if it is determined that there is no new bidder to participate in the bidding to close the deal. Article 19 of the Notice of the Ministry of Finance on Issuing the Measures for the Administration of Asset Disposal of Financial Asset Management Companies (Revision) (2008) "In principle, asset companies shall transfer assets through public bidding, including but not limited to bidding, auction, invitation to offer, public bidding, public inquiry, etc. ...... At least two or more persons shall participate in the bidding when disposing in the form of invitation to offer, public inquiry, etc", from the above, the two documents have different provisions on the number of participants in the bidding, because this notice is a normative document, it is recommended to take No. 74 as the standard. 2. Payment of the transfer price Caijin [2021] No. 102 "Notice" further refines the installment payment regulations, which is conducive to improving the risk prevention and control capabilities of state-owned financial institutions and improving the investment environment of the current non-performing asset market. According to Article 52 of the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (hereinafter referred to as Order 32): "In principle, the asset transfer price is paid in one lump sum." Previously, in the process of disposal of state-owned financial assets, there was the phenomenon of installment payment, but when the two parties reached an agreement on the post-installment payment was unclear, and there was no normative document to clearly refine the constraints, the proportion of installment payment was not fixed, a few transfers would agree on liquidated damages for special circumstances, and no limited guarantee was provided. The notice not only stipulates the amount of installment transfer and the first proportion of installment, but also requires that installment payment needs to provide legal and effective guarantee and defines the delivery terms, which makes the business negotiations involving assets of state-owned financial institutions have laws to follow. This is conducive to strengthening the risk control and compliance management of the disposal market of state-owned financial assets, and further reducing the risk of differentiation. The disadvantage of this move is that it increases the burden on buyers, and the state-owned financial asset disposal environment where the fittest survives stimulates the polarization of small and medium-sized enterprises and powerful enterprises. (VII) improve information disclosure and supervision and inspection 1. Information disclosure Caijin [2021] No. 102 "Notice" continues the limit of Article 50 of Decree No. 32 on the information announcement period for asset transfer. Notice No. 102 stipulates that the information announcement period for asset transfer projects with a reserve price of 1 million yuan -10 million yuan shall not be less than 10 working days, and that for asset transfer projects higher than 10 million yuan shall not be less than 20 working days. However, it is different from the provisions of Article 9 of the Administrative Measures for the Administration of Asset Disposal Announcements of Financial Asset Management Companies (Revision) (2008) (hereinafter referred to as "Notice No. 87") on the period of announcement. There is competition and cooperation between the two regulations on the announcement period. Considering that both of them are normative documents formulated by the Ministry of Finance, and the principles of new and old laws and regulations, the "Notice" No. 102 shall prevail. Compared with the original "Notice" No. 87, the new regulations extend the announcement period, which fully guarantees information disclosure and supervision, and is conducive to the stability of the asset transfer market of state-owned financial institutions. However, this also extends the disposal time of asset transfer, which has a certain impact on the efficiency of asset disposal. 2. Strengthen supervision and inspection Article 7 of the "Notice" No. 102 emphasizes the supervision system. "If the relevant personnel of financial departments and state-owned financial institutions at all levels violate laws, administrative regulations and the provisions of this notice, make decisions beyond their powers, neglect their duties, or use power for personal gain, resulting in the loss of state-owned assets, they shall be liable for compensation in accordance with laws and regulations, and shall be punished by the relevant departments in accordance with the management authority of personnel and cadres; if a crime, Transfer to judicial organs." This provision continues the spirit of the provisions in Article 59 of Decree No. 32 on the situation that the relevant responsible personnel should bear the responsibility. In this provision, the Ministry of Finance emphasizes that the loss of financial state-owned assets should be linked to the personal interests of the responsible person. The responsibility of the financial enterprise and the regulatory agency of financial state-owned assets, that is, the financial department itself, is also summarized in it, so as to realize the responsibility to the person and the responsibility in place. On this basis, state-owned financial institutions need to conduct regular internal audits on the asset transfer of their branches and sub-enterprises at all levels, and report the asset transfer of the previous year to the financial department at the same level before May 20 each year. If there is any violation of laws and regulations, it shall be transferred to the judicial organ for handling according to law. Improve the efficiency of the protection of state-owned assets, can effectively prevent the loss of state-owned assets. Caijin [2021] No. 102 "Notice" is one of the supporting documents to implement the role of state-owned financial capital investors of the Ministry of Finance. It further clarifies the practical details of the implementation of the asset transfer policy of state-owned financial institutions in the early stage, which is important for ensuring the orderly circulation of state-owned assets. Strictly preventing the loss of state-owned assets has far-reaching guiding significance.

2021-12-25

Viewpoint... Can the defendant apply for additional defendants in civil litigation?

1. Foreword Adding a defendant refers to the act of adding a relevant natural person, legal person or other organization as a defendant in a civil lawsuit upon the application of the parties to the case or the people's court ex officio. Regarding "whether the defendant can apply for additional defendants", there are different opinions in the field of procedural law and the practice of civil litigation trial. Part of the view that "the defendant can not apply for additional defendants", the main reason is that the basic principle of civil procedure law is not to sue, the plaintiff has the right to sue the defendant, apply for additional defendants, in the case of the plaintiff did not apply for additional defendants, the defendant has no right to apply for additional defendants. Another part of the view that "in a necessary joint action, the defendant has the right to apply for additional defendants", the main reason is that according to the current civil procedure law interpretation, in a necessary joint action, the parties have the right to add a necessary joint litigant to participate in the proceedings. Then, the "defendant" as a party to the case, that is, the right to apply for additional defendants, submitted to the court for review. This paper mainly discusses the problem of adding defendants in necessary joint litigation. 2. legal basis for additional parties According to Article 132 of the the People's Republic of China Civil Procedure Law and the Supreme People's Court on the Application<中华人民共和国民事诉讼法>The parties may add necessary co-litigants to participate in the proceedings. The parties include the "defendant". Therefore, according to the current law, in the necessary joint litigation, the defendant can apply for additional necessary joint litigants to litigate and submit them to the court for review. Specific provisions: 1. the People's Republic of China Civil Procedure Law Article 132 If a party who must jointly conduct a lawsuit fails to participate in the lawsuit, the people's court shall notify him to participate in the lawsuit. 2, the Supreme People's Court on the application.<中华人民共和国民事诉讼法>the explanation." Article 73 If a party who must jointly conduct a lawsuit does not participate in the lawsuit, the people's court shall notify him to participate in accordance with the provisions of Article 132 of the Civil Procedure Law; the party may also apply to the people's court for additional. The people's court shall examine the application filed by the parties, and if the reasons for the application are not tenable, it shall rule to reject it; if the reasons for the application are tenable, it shall notify the additional parties in writing to participate in the proceedings. Practical Views in the Trial of 3. Litigation After reviewing the relevant cases, there are different views on whether the defendant can apply for additional defendants in the practical trial. The court examines the "defendant's application for additional defendants" and mainly examines the following three conditions: 1. Whether the additional defendant is a party who must jointly conduct the lawsuit; 2. Whether the plaintiff agrees to the addition; 3, whether to apply for additional within the prescribed time limit. (Regarding the time limit for adding defendants, the law does not specify it. In trial practice, it is generally conducted before the end of the court debate in the first instance procedure.) 4. legal provisions on necessary joint action 1. the People's Republic of China Civil Procedure Law Article 52: If one party or both parties are two or more, the subject matter of the action is common (necessary joint action), or the subject matter of the action is the same type, and the people's court considers that it can be tried together with the consent of the parties (ordinary joint action), it is a joint action. If one of the parties to a joint action has common rights and obligations with respect to the subject matter of the action, the action of one of them shall be recognized by the other joint litigants and shall be effective against the other joint litigants; if there is no common rights and obligations with respect to the subject matter of the action, the action of one of them shall not be effective against the other joint litigants. 2, the Supreme People's Court on the application.<中华人民共和国民事诉讼法>the explanation." Articles 54, 58 to 60, 63, 65 to 67, 70 to 72, 74 and 76 of the judicial interpretation of the civil procedure law stipulate that some litigants must proceed in the form of joint litigation. In addition, articles 307 and 308 of the enforcement objection also stipulate joint litigation. Article 73 stipulates that if a party who must jointly conduct a lawsuit does not participate in the lawsuit, the court shall notify him to participate. Article 42 makes it clear that "if a party who must jointly conduct a lawsuit does not participate in the lawsuit because he or she cannot be attributed to him or his agent ad litem", he may apply for a retrial. Combined with Article 124, after the objection to the execution of the outsider is rejected, provisions are also made to allow a retrial as long as the person outside the case is a party to the necessary proceedings. It can be seen that the judicial interpretation of the Civil Procedure Law, on the basis of Article 132 of the Civil Procedure Law, clarifies the legal consequences of necessary joint litigation, emphasizing that in the trial of necessary joint litigation cases, all joint litigants must participate in the litigation, otherwise it may lead to the initiation of a retrial. 5. of the circumstances under existing law that should be included as a co-defendant or additional co-defendant (I) the Supreme People's Court on the application of<中华人民共和国民事诉讼法>the explanation." Article 54 Where a party engages in civil activities in the form of affiliation, and the party concerned requests that the affiliation and the person to be attached shall bear civil liability in accordance with the law, the affiliation and the person to be attached shall be co-litigants. Article 58 During the period of labor dispatch, if the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall be the party concerned. If the parties claim that the labor dispatch unit shall bear the responsibility, the labor dispatch unit shall be the co-defendant. Article 59 If the business operators registered in the second paragraph (individual industrial and commercial households) business license are inconsistent with the actual business operators, the registered business operators and the actual business operators shall be the joint litigants. Article 60 In a lawsuit, all the partners of an individual partnership who have not registered and obtained a business license in accordance with the law shall be joint litigants. Article 63 In the case of a division of an enterprise as a legal person, the enterprise after the division shall be the joint litigant in any dispute arising from civil activities prior to the division. Article 65 Where a business introduction letter, special seal for contract, sealed blank contract or bank account is borrowed, the lending unit and the borrower shall be joint litigants. Article 66 If the creditor claims its rights against both the guarantor and the guarantor in a lawsuit brought as a result of a guarantee contract dispute, the people's court shall list the guarantor and the guarantor as co-defendants. If the contract of guarantee is a general guarantee and the creditor sues only the guarantor, the people's court shall notify the guarantor to participate in the proceedings as a co-defendant; if the creditor sues only the guarantor, it may list only the guarantor as the defendant. Article 67 If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian shall be co-defendants. Article 70 In a lawsuit for inheritance, if some of the heirs sue, the people's court shall notify the other heirs to participate in the lawsuit as co-plaintiffs, and if the notified heirs are unwilling to participate in the lawsuit and have not expressly waived their substantive rights, the people's court shall still list them as co-plaintiffs. Article 71 If the plaintiff sues the agent and the agent and claims to bear joint and several liability, the agent and the agent shall be co-defendants. If the plaintiff sues the agent and the counterparty and claims joint and several liability, the agent and the counterparty are co-defendants. Article 72 If the common property right is infringed by another person and some of the co-owners sue, the other co-owners shall be joint litigants. Article 287 After the people's court accepts a public interest litigation case, other organs and relevant organizations that may initiate litigation according to law may apply to the people's court for participation in the litigation before the court session. If the people's court permits to participate in the proceedings, it shall be listed as a joint plaintiff. (II) (I) of Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases Article 27 If an employing unit employs a worker whose labor contract has not yet been terminated, the original employing unit may list the new employing unit as a third party in a labor dispute with the worker. If the original employing unit brings a lawsuit on the grounds of infringement by the new employing unit, the laborer may be listed as a third party. If the original employer files a lawsuit on the grounds of joint infringement by the new employer and the worker, the new employer and the worker shall be listed as co-defendants. (III) Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents Article 22 When hearing a case of compensation for damages in a road traffic accident, the people's court shall list the insurance company that underwrites the compulsory traffic insurance as a co-defendant. However, the insurance company has already paid compensation within the scope of the compulsory insurance liability limit and the parties have no objection. If the people's court hears a case of compensation for damages in a road traffic accident, and the parties request that the insurance company that underwrites commercial triple insurance be listed as a co-defendant, the people's court shall grant permission. the People's Republic of China Civil Code of (IV) Article 168 Where two or more persons jointly commit a tort and cause damage to others, they shall be jointly and severally liable. Article 1,169 Whoever instigates or helps another person to commit a tort shall be jointly and severally liable with the perpetrator. Whoever instigates or helps a person with no capacity for civil conduct or a person with limited capacity for civil conduct to commit a tort shall bear tort liability; if the guardian of the person with no capacity for civil conduct or a person with limited capacity for civil conduct fails to perform his duty of guardianship, he shall bear corresponding liability. Article 170 Where two or more persons commit acts endangering the personal or property safety of others, and the acts of one or more of them cause damage to others, and the specific infringer can be identified, the infringer shall bear the responsibility; if the specific infringer cannot be identified, the perpetrator shall bear joint and several liability. Article 171 Where the tort committed by two or more persons respectively causes the same damage, and each person's tort is sufficient to cause all the damage, the perpetrator shall be jointly and severally liable. Article 172 Where two or more persons separately commit a tort causing the same damage and are able to determine the size of the liability, they each bear the corresponding liability; if it is difficult to determine the size of the liability, they bear the liability equally. Article 195 Where a network user uses a network service to commit an infringement, the right holder shall have the right to notify the network service provider to take necessary measures such as deletion, blocking or disconnection. The notice shall include the preliminary evidence constituting the infringement and the true identity information of the right holder. After receiving the notice, the network service provider shall promptly forward the notice to the relevant network user, and take necessary measures according to the preliminary evidence and service type of infringement; if it fails to take necessary measures in time, it shall be jointly and severally liable for the expanded part of the damage with the network user. If the right holder causes damage to the network user or network service provider due to the wrong notice, he shall bear the tort liability. Where the law provides otherwise, such provisions shall prevail. Article 124 Where a motor vehicle that has been assembled or has reached the standard for scrapping is transferred by sale or other means, and damage is caused by a traffic accident, the transferor and the transferee shall bear joint and several liability. Article 1241 If the loss or abandonment of highly dangerous goods causes damage to others, the owner shall bear tort liability. If the owner hands over the highly dangerous goods to others for management, the administrator shall bear the tort liability; if the owner is at fault, he shall bear joint and several liability with the administrator. Article 1242 If the illegal possession of highly dangerous goods causes damage to others, the illegal possessor shall bear tort liability. If the owner or manager cannot prove that he has done a high degree of care to prevent illegal possession, he shall be jointly and severally liable with the illegal possessor. Article 1252 Where the collapse or collapse of buildings, structures or other facilities causes damage to others, the construction unit and the construction unit shall bear joint and several liability, unless the construction unit and the construction unit can prove that there are no quality defects. After the construction unit and the construction unit have made compensation, if there are other responsible persons, they shall have the right to recover compensation from other responsible persons. If the collapse or collapse of a building, structure or other facility causes damage to others due to the owner, manager, user or third party, the owner, manager, user or third party shall bear tort liability. (V) Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Personal Injury Compensation Article 2 Where a compensation right holder sues some joint infringers, the people's court shall add other joint infringers as joint defendants. If the right holder of compensation waives his claim against some of the joint infringers in the lawsuit, the other joint infringers shall not be jointly and severally liable for the share of compensation that should be borne by the defendant whose claim has been waived. Where the scope of liability is difficult to determine, it is presumed that the joint infringers bear the same liability. The people's court shall inform the holder of the right of compensation of the legal consequences of the abandonment of the claim and state the circumstances of the abandonment of the claim in the legal document. Article 4 If a helper who provides labor services without compensation causes damage to others in the course of helper activities, the helper shall be liable for compensation. If the helped worker assumes the liability for compensation and then recovers from the helping worker who has intentional or gross negligence, the people's court shall support it. If the helped worker explicitly refuses to help, he shall not be liable for compensation. (VI) the Supreme People's Court on the application of<中华人民共和国公司法>(III) on Certain Issues Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. (VII) the qualification of the subject of litigation for more than two joint creditors or joint debtors. In the case of a loan dispute in which the joint creditor is two or more persons and only one or some of the lenders file a lawsuit, the people's court shall notify the other lenders to participate in the lawsuit, except for other lenders who expressly waive their rights to the borrower. If other lenders who have waived their claims file a separate lawsuit against the borrower, the people's court shall not accept it; if it has already accepted it, it shall rule to reject the lawsuit. For joint debtors, two</中华人民共和国公司法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>

2021-12-25

The insurer shall be liable for the loss of insured property caused by the insurance accident in a timely manner in accordance with the law.

[brief case]] On December 9, 2014, a company submitted an "insurance policy" to a financial insurance Linyi branch company to insure comprehensive property insurance. Article 5 of the "Insurance Policy" stipulates that "during the insurance period, the insurer shall be responsible for compensation in accordance with the provisions of this insurance contract for the loss of the subject matter insured due to the following reasons: (ii)..., blizzard,..." Article 7 stipulates that "after the occurrence of an insurance accident, the insured shall pay the necessary and reasonable expenses to prevent or reduce the loss of the subject matter insured, the insurer is also responsible for compensation in accordance with this insurance contract." Article 26 stipulates that "after knowing the occurrence of an insurance accident, the insured shall (I) try his best to take necessary and reasonable measures to prevent or reduce the loss, otherwise, the insurer shall not be liable for compensation for the extended loss; the insurer shall (II) immediately notify the insurer ......; (III) protect the scene of the accident......". From the night of November 23 to 24, 2015, a sudden snowstorm in Pingyi County caused a company's steel structure warehouse to collapse, smashing some cans, soaking the outer package and shell of some cans, and damaging some cans in cold weather. On November 24, 2015, a financial insurance Linyi branch company sent personnel to the scene to check and inspect after receiving the report. On November 28, 2015, a company and a financial insurance Linyi branch jointly commissioned ocean assessment Jinan company to carry out insurance assessment for the accident. Dayang Public Estimation Jinan Company, together with the entrusting parties, conducted a survey of the accident site and inventory of canned goods in stock. During this period, it also checked and verified the accounting books and custody accounts of a company. Due to the dispute over the scope and amount of insurance compensation, a company sued a financial insurance Linyi branch company to the court. focus of controversy] How to determine the loss in this case, whether there is an extended loss, and if there is an extended loss, how to determine the amount and liability. The court of first instance held that] A company to a financial insurance Linyi branch company submitted the "insurance policy" to insure the property comprehensive insurance and paid the premium in accordance with the contract, the insurance company issued the "insurance policy", the insurance contract was established and effective. Documents such as the Insurance Policy, the Insurance Policy and the Insurance Clauses are valid legal documents, and both parties shall enjoy rights and assume obligations in accordance with the principle of maximum good faith in accordance with the contract. How to determine the loss in this case, whether there is an extended loss, and if there is an extended loss, how to determine the amount and liability. The parties have no dispute over the average price of $6500 per ton set by the public assessor, only over the actual amount of loss. Therefore, the actual amount of canned losses should be identified before determining the amount of the loss. In this case, both parties and the assessor agreed during the on-site inspection that there were three types of canned losses in the accident, which are described below. 1. The first category is crushing deformation and crushing. During the site survey, the three parties agreed that the deformed part of the iron tank was presumed to be a total loss. The 314.916 tons were found to be a total loss. 2. The second type of loss is the water-wet type. Water wet cans total 1319.637 tons. At the time of the inspection, the insurer believed that the cans were stored in multiple layers, with the outer layer of the cans being wet but not the inner layer. A company holds the opposite view, arguing that such water-wet cans should actually be a total loss. This kind of loss is determined by the assessor to be 1319.637 × 50%= 659.82 tons when determining the loss. The court of first instance held that at the time of the accident, the loss of water and moisture was 50%, which was more objective. However, when the plaintiff filed a lawsuit, because the cans were not disposed of in time, the presumption of total loss was more in line with the objective situation, and recognized the plaintiff's claim of a company in accordance with total loss. 3. The third category is the part that was in good condition at the time of the on-site inspection but the plaintiff claimed the loss of freezing. On page 7 of the Assessment Report, the survey quantity of cans stored in the new warehouse at the accident site with good appearance is recorded, totaling 839.189 tons. On pages 8 to 13 of the Assessment Report, it is recorded that the total number of cans transferred to the bonded area warehouse for storage is 1562.508 tons. The canned food stored in the above two places is 2401.70 tons. According to the evidence submitted by the plaintiff, on September 6, 2016, according to the requirements of the environmental protection department, the plaintiff disposed of 598.43 tons of canned 581 tons without the consent of the defendant. For the plaintiff's own disposal of 598.43 tons of canned 581, the defendant was not notified in the disposal process, and the consequences of the responsibility should be borne by the plaintiff himself. According to the on-site inspection records of the intact parts in the assessment report, it can be confirmed that the original and the defendant only carried out appearance identification for the disaster-stricken cans with intact appearance, and no quality inspection has been carried out for the internal quality problems of the disaster-stricken cans. On September 9, 2016, the plaintiff once again reported damage to the aforementioned cans with good appearance. The appraiser also only fixed the damage to the expansion tank part with doubtful appearance according to the proportion of 3% of the total amount of the part. The court held that the storage, custody and quality requirements for cans were different from those for ordinary products. When the plaintiff filed the lawsuit, one year and three months had passed since the accident, and these cans had rotted and deteriorated and should be presumed to be total loss. However, the plaintiff has not submitted evidence to prove the category of the corresponding three types of cans, I .e. 598.43 tons of cans 581 disposed of by the plaintiff, and the plaintiff shall bear the adverse consequences for its disposal without notifying the defendant. Considering the above three types of losses, the actual losses of the plaintiff should fall within the scope of compensation: 3437.823 tons (314.916 tons +1319.637 tons +2401.70 tons -598.43 tons), of which 2391.039 tons (1319.637 tons × 50% +2401.70 tons -598.43 tons -72.05 tons) belong to the expanded losses. With regard to the issue of expanding liability for losses, the court held that the defendant insurance company did not allow the plaintiff to dispose of damaged canned products, and the decay and deterioration of canned products caused by long-term storage was an important reason for the expansion of losses, but as a manufacturer, the plaintiff knew that canned products had strict requirements for storage and shelf life, and did not inform the insurance company of the relevant requirements, and he also had an unshirkable responsibility for expanding losses, both parties are liable for fault. The difficulty of this case is whether the calculation of claims for expanded losses applies to insufficient insurance. The court held that the expanded losses are losses caused by fault on the basis of losses caused by normal disasters, mainly expanded losses caused by human factors, which are caused by fault of both parties, not losses caused by normal disasters. The calculation method of insufficient insurance should not be applied, but should be directly based on the fault principle, calculate the fault liability that both parties should bear. The court of second instance held that] On how to determine the expansion of the loss and how to settle the claim. The components of the expanded losses determined by the court of first instance were the losses caused by the failure to deal with the products involved in the case in time after the snow disaster. Although this part of the product was transferred to another place after the disaster, it has not been treated for a long time and has deteriorated and damaged. The recording of the manager of Tianan Company submitted by a company also confirmed that Tianan Company required that the cans that could not be moved should not be processed. According to the on-site inspection records of the intact parts in the assessment report, it can be confirmed that both parties have only carried out appearance identification for the disaster-stricken cans with intact appearance, and have not carried out quality inspection for the inherent quality problems of the disaster-stricken cans. On September 9, 2016, a company reported another damage to the aforementioned cans with good appearance. The appraiser also only fixed the damage to the expansion tank part with doubtful appearance according to the proportion of 3% of the total amount of the part. For canned storage, storage and quality requirements are different from the general product, in a company filed a lawsuit, from the accident has been between one year and three months, these cans have been rotten deterioration, should be presumed to be a total loss. This loss is a financial insurance Linyi branch company does not allow a company to dispose of, resulting in long-term storage decay and deterioration, is the cause of the loss, should be an insurance accident. In addition, a company disposed of 598.43 tons of canned food, which was confirmed by the decision of Pingyi County Environmental Protection Bureau to order correction of illegal acts and the certificate issued by Pingyi County Lu Kang Cleaning Co., Ltd., which should be recognized as the expanded loss. The above for the expansion of the loss, a financial insurance Linyi branch company also did not provide evidence to prove that a company did not take the necessary measures, so the loss should be settled in accordance with the insurance contract. The retrial court held that] In accordance with the provisions of the first paragraph of Article 23 of the Insurance Law, the insurer shall, after receiving the request for compensation or payment of insurance benefits from the insured or beneficiary, make an approval in a timely manner; if the situation is complicated, the approval shall be made within 30 days, unless otherwise agreed in the contract. The insurer shall notify the insured or the beneficiary of the result of the verification; if it is an insurance liability, it shall perform the obligation of compensation or payment of insurance benefits within 10 days after reaching an agreement with the insured or beneficiary on compensation or payment of insurance benefits. According to the above-mentioned legal provisions, after receiving the insured or beneficiary's claim for insurance payment, the insurer shall fulfill the three obligations of verification, notification and payment in accordance with the law, and there is a logical relationship between the three. As far as this case is concerned, after the insured property involved in the case has suffered a snow disaster, in addition to the respondent's active rescue, the applicant, as an insurer, should also timely check and verify the insured property loss caused by the insurance accident according to the characteristics of the insured property. If the insurer fails to perform the aforementioned legal obligations in time according to law, the insurer shall bear corresponding responsibilities for the expanded losses caused thereby. The insured property involved in the case is canned food that cannot be stored for a long time, especially after the snow disaster, the applicant should take active measures to take corresponding derogation measures to properly deal with the damaged food. The case was found in the original trial. Although the insured property involved in the case was transferred to another place after the snow disaster, it was not dealt with for a long time, which caused the product to deteriorate and caused the property loss to be enlarged. The expansion of the loss was related to the applicant's failure to perform the aforementioned insurance law in accordance with the law. The original judgment that the applicant was responsible for the expanded loss of the product involved has factual and legal basis. Lawyer Advice] After the occurrence of an insurance accident, it is the legal obligation of the insurer to approve the request for compensation or payment of insurance benefits by the insured or beneficiary in a timely manner in accordance with the law. In this case, although the insurance contract for the "expansion of loss" agreed to an exemption clause, the insurer also gave a reminder of the exemption clause, but the exemption clause does not exempt the insurer for failure to perform the statutory obligations for the expansion of the loss of the corresponding liability. Through this case, it is suggested that after the occurrence of an insurance accident, the insurance company should, in accordance with the characteristics of the insured property, timely approve the loss of the insured property caused by the insurance accident in accordance with the law, so as to avoid the corresponding liability due to the existence of performance negligence.

2021-12-24

Viewpoint... Can the company's shareholders claim the right to know the company after they lose their shareholder status?

In my opinion, if a company's shareholders lose their shareholder status, they cannot claim the right to know about the company's relevant information after the loss of shareholder status, but they should still have the right to know about the company's information before the loss of shareholder status, for the following reasons: (1) The right to know of shareholders, as the name implies, is the right of the shareholders of the company to know based on their qualifications as shareholders, and the exercise of the shareholders' right to know cannot be separated from the identity of the shareholders of the company. Once the shareholders of the company lose their qualification as shareholders, they also lose the status of exercising the right to know. Therefore, after the loss of shareholder status, the company can no longer claim to the company the right to know the relevant information of the company after the loss of shareholder status. (2) If a shareholder of a company loses his qualification as a shareholder, although he cannot claim the right to know the relevant information of the company after the loss of his qualification as a shareholder, he should still have the right to know the information of the company before the loss of his qualification as a shareholder. Because this information is closely related to the benefits it should receive as a shareholder of the company. In particular, section 165 of the Companies Act provides for the obligation of the company to serve the company's financial and accounting reports to shareholders, and if the company fails to perform these obligations in a timely manner, the company is obliged to perform even if the shareholder has lost his or her shareholder status. (3) Assuming that the company provided false information or concealed true information to the shareholders before they lost their qualifications as shareholders, then the company's actions have constituted a tort and violated the shareholders' right to know. If at this time to deny the withdrawing shareholder's right to know about the company's information before the loss of shareholder status, it is obviously the connivance of the company's tort, but also damage the legitimate rights and interests of the withdrawing shareholder.

2021-12-24