Corporate Litigation Study... Liquidation liability disputes in the rules of corporate litigation adjudication.

Foreword Liquidation liability disputes refer to disputes in which members of the liquidation group shall bear the liability for compensation due to intentional or gross negligence causing losses to the company and creditors during liquidation. During the liquidation of the company, the liquidation group is the company's organ that carries out liquidation affairs internally and handles claims and debts on behalf of the company externally. The Company Law stipulates that the members of the liquidation group shall be devoted to their duties and perform their liquidation obligations in accordance with the law. Members of the liquidation group shall not take advantage of their functions and powers to accept bribes or other illegal income, and shall not embezzle the property of the company. If a member of the liquidation group causes losses to the company or its creditors intentionally or through gross negligence, he shall be liable for compensation. This paper will analyze the liquidation liability disputes from the aspects of legal provisions, disputes and adjudication rules. 1. related regulations 1. Companies Act of the People's Republic of China Article 189 The members of the liquidation group shall be devoted to their duties and perform their liquidation obligations in accordance with the law. Members of the liquidation group shall not take advantage of their functions and powers to accept bribes or other illegal income, and shall not embezzle the property of the company. If a member of the liquidation group causes losses to the company or its creditors intentionally or through gross negligence, he shall be liable for compensation. 2. the People's Republic of China Civil Code Article 70 Where a legal person is dissolved, except in the case of merger or division, the liquidation obligor shall promptly form a liquidation group for liquidation. Members of the executive or decision-making bodies such as directors and directors of a legal person are the liquidation obligors. Where laws and administrative regulations provide otherwise, such provisions shall prevail. If the liquidation obligor fails to perform the liquidation obligation in time and causes damage, it shall bear civil liability; the competent authority or the interested party may apply to the people's court to designate relevant personnel to form a liquidation team to carry out liquidation. 3. (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 18 If the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to set up a liquidation group to start liquidation within the statutory time limit, resulting in the devaluation, loss, damage or loss of the company's property, and the creditors claim that they are liable for compensation for the company's debts within the scope of the losses caused, the people's court shall support it in accordance with the law. If the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company fail to perform their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and cannot be liquidated, and the creditors claim that they are jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law. If the above-mentioned situation is caused by the actual controller, and the creditor claims that the actual controller shall bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. Article 19: After the company is dissolved, the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company, and the actual controller of the company maliciously dispose of the company's property and cause losses to creditors, or use false liquidation reports without liquidation according to law. If the company registration authority is deceived to cancel the registration of the legal person, the people's court shall support it in accordance with the law. Article 20 When a company is dissolved, it shall apply for cancellation of registration after the liquidation according to law is completed. The people's court shall support the claim that the shareholders of the limited liability company, the directors and controlling shareholders of the limited liability company, the directors and controlling shareholders of the limited liability company, and the actual controller of the company shall bear the responsibility for the settlement of the company's debts. If the company goes through the cancellation registration without liquidation according to law, the shareholders or a third party promises to be liable for the company's debts when the company registration authority goes through the cancellation registration, and the creditors claim that they bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. Article 23 If a member of a liquidation group violates laws, administrative regulations or the articles of association of the company while engaging in liquidation affairs and causes losses to the company or creditors, and the company or creditors claim that it is liable for compensation, the people's court shall support it in accordance with the law. If a shareholder of a limited liability company or a shareholder of a joint stock limited company who individually or collectively holds more than 1% shares of the company for more than 180 consecutive days, in accordance with the provisions of the third paragraph of Article 151 of the Company Law, if a member of the liquidation group has any act mentioned in the preceding paragraph, the people's court shall accept the case. If the company has been liquidated and canceled, and the above-mentioned shareholders directly file a lawsuit in the people's court with the members of the liquidation group as the defendants and other shareholders as the third party with reference to the provisions of paragraph 3 of Article 151 of the Company Law, the people's court shall accept it. 4. Minutes of the National Court Conference on Civil and Commercial Trials Article 14 The "failure to perform obligations" as stipulated in Article 18, paragraph 2 of the (II) of Judicial Interpretation of the Company Law refers to the shareholders of a limited liability company who deliberately delay or refuse to perform their liquidation obligations after the legal liquidation cause has arisen, or the negative behavior of failing to carry out liquidation due to negligence. If a shareholder proves that he has taken active measures to fulfill his liquidation obligations, or a minority shareholder proves that he is neither a member of the board of directors or the board of supervisors of the company, nor has he selected personnel to serve as a member of the organ, and has never participated in the operation and management of the company, the people's court shall support it in accordance with the law. Article 15 If a shareholder of a limited liability company proves that there is no causal relationship between his negative omission of "neglecting to perform his obligations" and the result of "the loss of the company's main property, account books, important documents, etc. and the inability to liquidate", the people's court shall support it in accordance with the law. Article 16 If the creditors of the company request the shareholders to bear joint and several liability for the repayment of the company's debts, and the shareholders defend on the grounds that the claims of the company's creditors against the company have exceeded the limitation period of action, which is verified to be true, the people's court shall support it in accordance with the law. If the creditors of the company request the shareholders of a limited liability company to bear joint and several liability for the debts of the company on the basis of article 18, paragraph 2, of the (II) of the judicial interpretation of the company law, the limitation period shall be calculated from the date on which the creditors of the company know or should know that the company cannot be liquidated. 2. Disputes and Judgment Rules (I) Controversial Issue 1: The determination of shareholders' liability in the case of fraudulent cancellation of the company. Case: Xia Moumou refused to accept the civil judgment No. 813 of the People's Court of Dongtai City, Jiangsu Province (2017) Su 0981 Minchu due to a dispute over liquidation liability with Chen Mou and others, and appealed to the Intermediate People's Court of Yancheng City, Jiangsu Province. The Intermediate People's Court made a civil judgment (2017) Su 09 Minzong No. 4142, and then applied to the Intermediate People's Court of Yancheng City, Jiangsu Province for a retrial, the Intermediate People's Court of Yancheng City, Jiangsu Province made a civil ruling (2018) Su 09 Min Shen No. 109. referee rules] If a shareholder of a limited liability company, without liquidation in accordance with the law, defrauds the company's registration authority to cancel the registration of a legal person with a false liquidation report, which harms the interests of creditors, the shareholders of the company, as liquidation obligors, shall bear the corresponding liability for compensation. The scope of such liability is limited to the amount due to the creditor under legal liquidation. The amount due to creditors under legal liquidation, according to the principle of good faith and the dominant position of shareholders to know the company's situation, should be the shareholders as the liquidation obligor to bear the burden of proof. If the shareholders of the company cannot prove the true amount of the company's remaining property in the case of liquidation in accordance with the law, they shall bear the adverse legal consequences. (II) Dispute Issue II: Liability for Company Liquidation Harm the Interests of Creditors Case: Zhuzhou Binjiang Furniture Co., Ltd. refused to accept the civil judgment No. 930 of the people's Court of Tianyuan District, Zhuzhou City, Hunan Province (2016) because of a dispute over liquidation liability with Liu Mouhua and Xu Mouhong, and appealed to the Intermediate people's Court of Zhuzhou City, Hunan Province. Zhuzhou City Intermediate people's Court of Hunan Province issued a civil judgment No. 1233 of (2017) Xiang 02 Min Zhong. referee rules] When the company is liquidated, the liquidation group knowingly fails to perform the obligation of notice because the company has outstanding claims, and after the company is canceled, the corresponding losses of the creditors shall be compensated by the members of the liquidation group. There are two kinds of liability for the liquidation of a company to harm the interests of creditors, one is the liability of the liquidation group for failing to fulfill the obligation of notice announcement, and the other is the liability of the liquidation obligor for maliciously disposing of the company's assets and false liquidation. The former belongs to the infringement of omission, and the latter belongs to the infringement of act. There are some differences between the two in the subject of tort liability and the scope of liability, which should be strictly distinguished and identified in judicial practice. (III) Dispute Issue 3: Determination of Liability for Liquidation of Shareholders of Limited Companies and Starting of Limitation of Action Case: Shanghai Wensheng Investment Management Co., Ltd. refused to accept the civil judgment of Beijing Haidian District People's Court (2014) Haimin Chuzi No. 4323 due to a dispute over liquidation liability with Zhongke Industrial Group (Holdings) Co., Ltd., and filed an appeal with Beijing No. 1 Intermediate People's Court, and Beijing No. 1 Intermediate People's Court issued (2015) Zhongyi Min (Shang) Zhongzi No. 2997 civil judgment. referee rules] 1. The liquidation obligor of a limited company shall be liable for liquidation and shall meet the conditions of negligence in fulfilling the liquidation obligation, the company cannot be liquidated, and there is a causal relationship. Among them, for the determination of "indifference" and causality, it is necessary to take the way of inversion of the burden of proof and presumption of causality. The shareholders of a limited company, as the liquidation obligor of the company, the size of their shareholding and whether they actually participate in the operation of the company are not valid exonerations. 2. In terms of the statute of limitations, it shall be calculated from the date on which the creditors know or should have known that the shareholders of the company have neglected to perform their liquidation obligations, resulting in the derogation, loss or inability to liquidate the company's property. (IV) Dispute Question 4: The allocation of the burden of proof and the standard of proof of the joint and several liability of the shareholders based on the liquidation obligation. Case: Dingshi Law Firm refused to accept the civil judgment of Beijing Chaoyang District People's Court (2015) Chaomin (Shang) Chuzi No. 67115 for a dispute over liability for damaging the interests of the company's creditors with the shareholders of Beijing Kexin Investment Co., Ltd., and filed an appeal with Beijing No. 3 Intermediate People's Court, and Beijing No. 3 Intermediate People's Court issued a civil judgment (2017) Beijing 03 Minzong No. 5302. referee rules] 1. The compulsory liquidation procedure is not a pre-procedure in the litigation that "cannot be liquidated. 2. In the allocation of the burden of proof for "non-liquidation", the burden of proof shall be borne by the creditor. Creditors are required to provide preliminary evidence of the "inability to liquidate" the company. When the liquidation obligor claims not to be jointly and severally liable for liquidation, the liquidation obligor shall adduce disproof that the company's "inability to liquidate" is not due to its negligence in fulfilling its liquidation obligations. If there is no evidence to the contrary, the liquidation obligor shall bear the corresponding liability. 3. When the liquidation obligor claims that it can be liquidated and provides preliminary evidence that meets the conditions for liquidation, the liquidation procedure shall be carried out first. In this case, the seizure of the company's account books by the court due to the execution procedure does not constitute "the loss of the company's main property, account books, important documents, etc." and "cannot be liquidated", and the creditor cannot directly request the shareholders of the limited liability company to bear joint and several liability for settlement. 4. When the liquidation obligor claims that the company can still be liquidated and provides preliminary evidence, the litigation should examine whether the company can be liquidated. The liquidation obligor only needs to prove that it can still be "liquidated" rather than "fully liquidated", and whether the company can be "fully liquidated" is not something that should be examined in the proceedings.

2021-12-24

Viewpoint | Research (IV) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. 4. determine the relationship between rights and obligations related to online writing based on the nature of the contract. As mentioned above, as a type of work, online literary works are no different from the "written works" defined in the Copyright Law. The difference lies only in the changes in the communication carriers and channels of the works, but it is this change that triggers the works. The changes in the creation and operation mode make the existing copyright system have an embarrassing situation in some cases: although there are no obvious obstacles to its application, however, the result of its operation will go against the original intention of the establishment of the system, and it will not achieve the expected effect, such as protecting the rights and interests of authors, promoting the creation and dissemination of works, and so on. [] But on the other hand, the law's adjustment of social relations cannot be used to change the existing rules and arrangements by using the method of treating headaches and feet. Although, as mentioned earlier, both the feudal privileges of the 15th century and the capital privileges of today's society have enabled publishers/online platforms to gain market power, the feudal privileges and capital privileges as sources of market power operate in very different ways. The latter, while also creating an imbalance in the allocation of resources, is the result of the spontaneous action of the market itself. For the correction of this result, the law, as a public power, should try to restore the market's ability to regulate through the correction of rights and obligations. [] As far as the "Copyright Law" itself is concerned, since it is still a traditional work of text, according to the traditional theory and practice of copyright law and intellectual property law, it is unnecessary, impossible, and almost never based on the same type of work., Only because of the difference of the carrier to make different analysis or arrangement. Under the circumstances of the ever-changing business model in the new era, this paper advocates combing the legal relationship in the agreement, determining the nature of the agreement on the basis of the essence of rights and obligations, and dealing with the validity of the relevant provisions, the agreement is not agreed or the agreement is not clear, so that the "old" system can be used to solve new problems. The economic analysis of copyright law is one of the explanatory contents of the new institutional economics arising from the transaction cost as the starting point, and its analytical logic, in short, is to reduce transaction costs and realize the effective allocation of resources by the market through clear rights boundaries and transaction rules. [] And the increase in transaction costs is often triggered by information asymmetry, opportunism, etc., which leads to market failure. [] According to the market priority theory [], when there are market failures associated with them, justice should make the market an effective mechanism for the allocation of resources again by reducing the influence of these factors. When this theory is applied to the related issues of network literature creation agreement, it is to sort out and identify the rights and obligations of both parties to the contract. Although the online writing agreement is titled "Copyright License/Authorization Agreement" or "Work Use Agreement", in essence, it does not comply with the provisions of the Copyright Law and other laws for related contracts, so it is an atypical contract., That is, nameless contract. The rules for atypical contracts shall be determined in accordance with the content of the contract, the relationship between the terms of the contract, the principle of good faith and trading practices []. Therefore, for these agreements, in addition to the wording (including the literal meaning of the title), determine the essence of the contract, and determine the various rights and obligations based on the above factors. (I) identify the substance of the contract to determine the internal legal relationship. Determining the relationship between rights and obligations from the perspective of the substance of the contract is first reflected in the understanding of the legal relationship between the network platform and the author. For example, in a pure UGC model, the web platform signs a user usage agreement with the author. As mentioned earlier, the author maintains a relatively complete copyright in this agreement. Based on the practical needs of online publication, the author will give some rights, such as submitting manuscripts, which means that the author has permission to the right of information network dissemination and reproduction in specific ways. The author's act of clicking "I have read and agree to the agreement" constitutes a default to the terms of the contract. However, according to general trading habits, this concession should be extremely limited and should be limited to the need for online publication. If the terms of the user agreement form a license or transfer of the main rights of the copyright, it can no longer be considered as a user agreement, but should be considered to constitute a copyright transfer or license contract. For another example, sometimes the name of the agreement is "authorization contract", but in fact it excludes the possibility of the author exercising the copyright during the entire duration of the copyright, and authorizes the network service provider to exclusively license the property rights of its works to the network within 50 years of life and death. Platform, it should be considered that a copyright transfer contract has been formed. When the apparent user agreement is essentially in the nature of a copyright license or transfer contract, the provisions of the Copyright Law on the right to remuneration of the copyright owner [] should be invoked. When the agreement does not agree on the contractual consideration, the author should not be considered to have tacitly licensed or transferred the copyright in a free manner, but should be interpreted otherwise for the relevant provisions. This situation can be dealt with in the following ways: the first way is to find that the contract is not established on the grounds that the contract lacks the main clause []. Whether according to the general principles of debt law or the provisions of copyright law for copyright licensing or transfer contracts, the payment consideration clause is the main clause of the contract. According to the principle of good faith and trading habits, in the absence of clear evidence that the author has made a clear waiver of the right to remuneration when agreeing to use the agreement, the main terms of the contract should be found to be missing, so that the contract is not established. The second way is to invoke the format contract specification processing. Since the user's use agreement is generally presented in the form of text displayed in advance on the web page or client, the user has only the right to choose whether to agree as a whole, thus satisfying the constituent elements of the format contract. At this time, the lack of a consideration clause in the licensing or transfer of copyright can be found to be invalid for the failure to follow the principle of fairness and exclude the main rights of the other party as stipulated in the Contract Law, and an explanation that is not conducive to the contract provider, the operator of the network platform. In addition, the mere presentation of the relevant provisions in bold type is not sufficient to satisfy the requirement to indicate the relevant provisions. The third approach is to characterize the absence of a remuneration clause as a revocable, modifiable contractual clause resulting from a material misunderstanding. Since the right of rescission of a contract is a right of formation [], the author may choose for himself whether to effect the licensing and transfer of copyright with the payment of consideration, or to revoke the agreement. This scheme may be more inclined to maintain the security of transactions and facilitate transactions that use works. (II) determine the relationship of external rights and obligations on the basis of the nature of the agreement. Although the contract is relative and the validity of the online writing agreement is only binding on the rights and obligations of both parties to the agreement, the characterization of this agreement may still have an impact on the external rights and obligations of both parties to the agreement to a certain extent. The more typical situation is the application of the safe haven principle. The purpose of the safe harbor principle is to exempt the network platform from the heavy general review obligation, so that it can get rid of the general tort liability when the user's behavior infringes the rights and interests of the third party, and only bear the responsibility of review and deletion when receiving the notice of infringement, and bear joint and several liability when failing to fulfill the obligation of deletion. [] For the infringement of the author of online literature-generally the author's work infringes the copyright of others-the online platform will generally invoke the safe haven principle in order to avoid liability. When the network writing agreement is not characterized as a user agreement, the safe haven principle has no room for application. At this point, the network platform operator may be jointly and severally liable because of its position in the agreement-such as the transferee of rights or the creative principal of the work. This is not only based on the general principle of the compatibility of rights and obligations, but also related to the purpose of the safe haven principle. When the website forms a copyright license and transfer relationship with the author, the author is no longer just a user of the website, and the website is no longer a network service provider (ISP), but may become a content provider (ICP), thus being responsible for the content provided by himself. In particular, if the network platform and the author make an agreement on the copyright of future works, which makes the author bear the obligation of continuous contribution to the website within a certain period of time, the website has the right to substantially control the content of the works, even when the author uses the pen name to restrict according to the above, or arranges different authors to create the same work or series of works with the same pen name, or when the website pays the author according to the amount of work completed, under the condition that other conditions are met, it can be considered that the two are equivalent to forming a labor or labor relationship. When a labor relationship is formed, the author's tort liability shall be determined according to the circumstances of the damage caused by the relevant labor service, and shall be borne by the person receiving the labor service, that is, the operator of the network platform. When the labor relationship is met, it may constitute a job work stipulated by the copyright law and shall be handled in accordance with its provisions. If the network platform has almost complete control over the author's creation, such as issuing instructions or modifying the style and content, it can be recognized as a legal person's work, and the network platform operator shall bear the responsibility. Conclusion To sum up, when the traditional copyright object of written works is used as the carrier of the network, and thus the author uses a business model that is completely different from the past, the nature of the legal relationship and the relationship of rights and obligations between the two parties cannot be determined only by the wording and appearance of the agreement between the author and the network platform. It is necessary to study the essence of the relationship between rights and obligations determined by the provisions of the agreement, analyze the agreement provisions and the spirit of relevant legislation in accordance with the copyright Law, the contract Law and other relevant laws and regulations, and combine the trading habits and the principle of good faith to determine the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its provisions, and clarify the relationship between the rights and obligations of both parties. And the external liability and other matters. Article 1 of the Copyright Law [] Mao Xiang. Application of Market Priority Principle in Intellectual Property [J]. Journal of Chongqing University (Social Science Edition),2018,24(06):157-168. [] Cui Guobin. Criticism of Intellectual Property Judges' Law-Making [J]. Chinese Law Science, 2006(01):144-164. [] Eric Frubberton, Rudolf Reichert. New Institutional Economics-A Transaction Cost Analysis Paradigm [M]. Shanghai: Shanghai Sanlian Bookstore, Shanghai People's Publishing House, 2006:54 [] Liu Dahong. On the principle of market priority in economic law: connotation and application [J]. Law and Business Studies, 2017,34(02):82-90. [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P73 [] Articles 10 and 24 of the Copyright Law [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P115 [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P244 [] by Cui Guobin. Copyright Law. Principle and Case [M]. Peking University Press, 2014.P753

2021-12-24

Viewpoint | Research (III) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. 3. network writing patterns and the nature of contracts that may be involved (I) typical contracts related to web writing A typical contract, also known as a named contract, is a contract that is regulated by law and given a certain name. According to the "Copyright" law, the copyright of a written work arises from the completion of the creation of the work and initially belongs to the author. Therefore, in the process of network writing, the author and the network platform are regulated by relevant laws and agreements. These agreements may involve the following typical contracts. 1. User Use Agreement At the beginning of the birth of network literature, the rights and obligations between the network platform and the author are restricted by the user's use agreement. This type of protocol is actually developed from the end user agreement (EULA) commonly used in computer software. There is no substantial difference between the author and the reader. They are both users of the network platform. The author and the reader use the system provided by the website to publish works or other "posts" that do not constitute works online as registered users ". Before users register to use the services provided by the website, the website uses a set of format contracts to regulate the behavior of users using the website to publish information. [] Except for the defining provisions and provisions related to network security, the website generally does not require an explicit license or transfer of copyright for the work or the copyright itself. The Site is licensed with very limited partial copyright rights based solely on the needs of the Site to operate. Some of these licenses are based on the provisions of the law or the agreement of the user's use agreement, such as online submission is regarded as the publication of the work, the right to republish the website, etc. But more, the use of the site for the work is based on the operation of the site should of course be allowed to act, such as information network dissemination, data backup for the need to copy the work. As for the creation of works, websites generally do not interfere, but emphasize that works must not violate the regulatory provisions of the law. At the same time, some websites may review the works published on the website in advance or later for the sake of unified theme and quality of the website, so as to publish or delete the works. Based on the user agreement, the author has complete copyright to the work. If the website intends to make further use of the published article, it must sign a special agreement with the author, thus turning to the copyright transfer or license agreement. 2, copyright transfer or license agreement. In order to make further use of the works, such as the collection and publication of the works or the change into film and television works, the website needs to sign a copyright license contract with the author for the works. In these contracts, the network platform obtains part of the right to use the work according to the agreement, such as the right to make changes, the right to compile, etc. However, as mentioned above, especially in the process of producing film and television works, the exercise of ordinary license or single power may not meet the needs of the integrity of the rights associated with it. Therefore, the network platform often tries to obtain exclusive or exclusive license, and obtain a relatively complete license of copyright property rights,[] and even requires the author to transfer the copyright property rights. In the process of using copyright for pledge financing, the transfer of all property rights of works is the most common practice. A copyright license or transfer is a succession of copyrights or rights. In order to obtain the original copyright, the network platform and the author sometimes sign agreements on the ownership of future works. The names of these agreements are often still "copyright authorization agreement" or "license contract", but in fact, they may form entrusted creation or even labor and labor relations. 3, entrusted creation agreement, network brokerage agreement or the formation of labor and labor relations. The validity and content of a copyright license or transfer contract are restricted by the copyright law. This restriction is mainly concentrated in two aspects: First, the creation of copyright begins with the completion of the creation of the work. Therefore, for unfinished works, because there is no grantable "Right", it is of course impossible to have a license or transfer contract based on copyright. Although judicial precedents recognize the binding force of these contracts [], they can only be based on the fact that the contractual obligation leads to the licensing or transfer of copyright as a contractual obligation to be performed after its creation. Second, according to Article 10 of the Copyright Law, the copyright rights that can be used for licensing or transfer are limited to the property rights of the works. [] Therefore, if the network platform agrees on the ownership of the complete copyright of the work produced in the future, it is likely to constitute a contract of commissioned creation. According to Article 17 [] of the Copyright Law, the copyright of a commissioned work is agreed upon in a contract and, in the absence of such agreement, belongs to the trustee, I .e. the author. In practice, the network platform and the author often agree that the copyright initially belongs to the network platform operator, so that the network platform can form the original acquisition of the complete power of the copyright. Different from the traditional commissioned creation, the network literature creation agreement often does not make a special clear agreement on the creation content itself, but only determines the number and frequency of contributions, the ownership of copyright and the distribution of benefits. At the same time, with the development of the industrialization of network literature, the related specialized profession arises at the historic moment, both network literature agent. The main work of the broker is not only to find trading opportunities and facilitate transactions for the author and the network platform, but also to undertake upstream industry-related work such as the determination of creative style, the selection of themes, the communication between the network platform and the author on the creative content, and the follow-up of the writing progress. Some of them are also responsible for the operation of works, author services, works publicity and derivatives development services. [] The development of the network literature creation industry has produced more complex agreements and operating methods. When commissioned creative agreements are combined with online literary brokerage agreements and are often fully controlled by online platform operators, groups of authors, especially small and medium-sized writers, sometimes argue that these contracts form labor or service relations in substance. In these agreements, the network platform often stipulates the number and frequency of the author's contributions by agreement, and agrees that the copyright originally belongs to the network platform. At the same time, it is agreed in the contract that the author should create in accordance with the content and style required by the network platform in the process of creation. These requirements are not explicitly stated in the contract, but are issued to the author through separate instructions during the performance of the contract. In particular, many online platforms have agreed on the use of the author's pseudonym. [] In addition to the traditional author writing under a pseudonym, there are also some special ways of application, such as prohibiting authors from making contributions to other subjects under the same pseudonym, for different works, authors should write under different pseudonym, or different authors should create under the same pseudonym, or even multiple authors jointly create the same work under the same pseudonym. In this case, the author is generally called "writer" in the industry, and this kind of creation also deviates from the writing mode with the author as the core in the traditional literary creation and turns to the production mode of industrialized works. Therefore, the author group believes that it has formed a labor or labor relationship with the network platform, and then advocates the relationship of rights and obligations related to labor security, labor infringement and job works. [] (II) network publishing mode and nature of publishing agreement As mentioned earlier, the network literature creation industry has experienced the development path from the traditional UGC mode to PGC and OGC mode. At the same time, these modes also exist in the current network literature creation. Therefore, it is necessary to sort out the nature of the network creation protocol in these modes. In the UGC model, the platform typically operates as an electronic bulletin board (BBS), an online forum, or an online community. In this mode, users publish articles on the website, and the platform is the channel for authors to publish articles. The relationship between the author and the platform is the relationship between the user and the network service provider. The protocol at this time is generally a user usage protocol. The author retains relatively complete copyright and is responsible for his own articles. For the author's infringement, the website can invoke the "safe haven principle". In the UGC mode, the further use of the work is extremely accidental. When the network platform wishes to make further use of the work, the agreement signed is generally a copyright license or transfer contract. In the PGC model, the author is generally a professional writer, the purpose of writing is to publish on the website, through the website traffic or revenue sharing, while seeking opportunities for the creation and use of derivatives of the work. Therefore, the website and the author will generally sign an agreement in advance on the use of the copyright of the work, and at the same time agree on the attribution of rights and the distribution of benefits for the interpretation of the work. These agreements may be commissioned creative contracts, or they may form copyright transfer and licensing contracts. For the creation and operation of derivatives, the author and the platform may also form an agency relationship (I. e., the platform acts on behalf of the author to exercise copyright rights) or a brokerage relationship. In OGC mode, the author's writing is generally to complete the tasks delivered by the platform and write according to the requirements of the platform, and the platform pays the remuneration according to the agreement. The agreement relationship formed at this time is relatively complex. Since under the OGC model, if the agreement is generally for works that have not yet been created or have not yet begun to be created, there is generally no copyright license or transfer agreement. Its agreements should be characterized as the aforementioned commissioned creation agreement, online brokerage agreement or the formation of labor and labor relations. [] Wang Yize. Coping with Copyright License Format Contract Expanding the Scope of Copyright Owner's Rights [J]. China Publishing, 2020(08):61-64. [] Come, Tucki. On the exclusive license of copyright under the network environment [J]. China Publishing, 2017(03):52-55. [] Shanghai Pudong New Area People's Court,( 2010) Pu Min San (Zhi) Chu Zi No. 424. [] Article 10 of the Copyright Law [] Article 17 of the Copyright Law Chinese Culture Newspaper. Integrating Resources to Build Industrial Chain Network Literature "Broker" Comes [EB/OL].http://www.ce.cn/culture/gd/201408/23/t20140823_3410259.shtml,2020年5月15日. [] Tang Li Han. Tianxia Ba Sings Victory to "Nine-story Demon Tower": Film Party Violates Authorship [N]. Legal Evening News, 2016-06-28 [] Lai Mingfang. How can online literature platforms and authors coexist and win-win [N]. China Press, Publication, Radio and Television News, 2020-05-14(005).

2021-12-24

Point of view... How to determine that the purpose of shareholders requesting access to the company's accounting books is improper.

According to Article 33 of the Company Law, if a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose that may harm the legitimate interests of the company, it may refuse to provide access. It can be seen that the legitimate purpose of the shareholders' access to the company's accounting books will be directly related to the realization of the right of access. Then, how to determine the legitimacy of the right of inspection in judicial practice? As a company, how to prove that the right of inspection claimed by the plaintiff shareholders has an improper purpose? According to the provisions of Article 8 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the shareholders of the company have one of the following four situations: the people's court shall determine that they have an "improper purpose": (1) If a shareholder operates a business for himself or for another person that has a substantial competitive relationship with the company's main business, it shall be deemed to have an "improper purpose." The "self-employed" here refers to the business operated by the shareholders themselves; the "main business" here refers to the business of the main source of the company's profits; and the "substantial competitive relationship" here refers to the direct conflict of interest between the shareholders and the company. However, if there is such a relationship between the shareholders and the company, but the articles of association of the company provide otherwise or all shareholders agree otherwise, the treatment in accordance with the provisions or agreement may not be regarded as "improper purpose". (2) If a shareholder consults the company's accounting books in order to inform others of the relevant information, which may harm the legitimate interests of the company, it shall be deemed to have an "improper purpose." "Relevant information" here refers to the information contained in the company's accounting books. The purpose of a shareholder's access to the company's accounting books is not to exercise his or her rights as a shareholder, but to inform others of the information he or she has accessed, which should be deemed to have an "improper purpose" as long as it has the possibility of harming the legitimate rights and interests of the company ". (3) If a shareholder, within three years prior to the date of making a request for inspection to the company, has informed others of relevant information that harms the legitimate interests of the company by consulting the company's accounting books, it shall be deemed to have an "improper purpose". The term "within three years" here refers to the three years before the date of the shareholder's request for inspection to the company, not the three years before the date of the shareholder's lawsuit in the people's court. If a shareholder has "consulted the company's accounting books and informed others of relevant information that harms the legitimate interests of the company" within three years before the date of filing a request for inspection to the company, it shall be deemed to have an "improper purpose". (4) Other circumstances in which the shareholders have improper purposes. This is a bottom-up clause. Due to the complexity of the actual situation, legislation cannot exhaust all the circumstances of "improper purposes", so more facts are handed over to the people's court for truthful determination.

2021-12-23

A little discussion of the general consumer in the determination of design infringement.

1 Opinion of the Supreme Court One of the focus of the dispute summarized by the Supreme Court in Administrative Judgment No. 359 of the Supreme Court (2020) is whether the internal cavity structure of profile products is protected by the design patent right (should be protected). In this regard, the Supreme Court held that: Part IV, Chapter V, Section 4 of the "Patent Examination Guidelines" stipulates that general consumers of a certain type of design products should have the following characteristics:(1) The design of the same or similar type of products before the date of the patent application in question And its common design methods have a common sense understanding. Commonly used design techniques include the design of the transfer, splicing, replacement and other types. (2) the design of the product between the shape, pattern and color of the difference has a certain degree of resolution, but will not notice the product shape, pattern and color of small changes. It can be seen that the general consumer refers to a consumer group, and different consumer and user groups often have different understandings and visual impressions on the appearance design of products in different fields. "General consumer" is a person who can represent the general commonness of ordinary consumers, which is the same as the concept of "ordinary technical personnel in this field" introduced in the creative judgment of invention and utility model and the abstract concept of "ordinary person" of "general attention" commonly used in civil law. The court can neither regard a group of people as the general consumers of all products, nor can people who have nothing to do with a certain product be regarded as ordinary consumers of this product, otherwise, the conclusion drawn is likely to be unfair. The general consumer is not any citizen, but a purchaser or user of a particular class of goods. Because only consumers who buy goods or consumers who use goods need to compare and judge the similarity between the product and other products of the same kind, the evaluation of patented products should be restricted by the observation population. Profile products are an intermediate product. The end users of the products often do not buy the profiles themselves alone. What they consume is products assembled from profiles, and the sales mode of profile products also leads to the end users of the products. It is often obtained through distributors or operators, and rarely directly purchased through manufacturers. Based on this, the general consumers of profile products include not only the end users of the products, but also the relevant operators, salesmen and purchasers in all aspects of profile manufacturing, sales, installation and use. Compared with the end user, the main body in the purchase of patented products, will pay more attention to the various design features of the product, especially the internal cavity structure has a larger design space, in the profile section accounted for a relatively large, should be focused on the design features. The original judgment held that the determination that the internal cavity structure was completely invisible in the final use state ignored the condition that the internal structure in the legal sense should be restricted by the observation population, and the court corrected it. 2 Analysis of the Supreme Court Referee's Viewpoint The above evaluation of the Supreme Court in this case can be briefly described as follows: ordinary consumers are typed subjects with a common perspective, and different types of consumers have different perspectives for the same product, thus resulting in relatively more design elements for the same product, according to the perspective of one type of consumer, while according to the perspective of another type of consumer, the design elements are relatively less. In this case, the direct sales objects of profile products are related operators, salesmen and purchasers in various links such as profile manufacturing, sales, installation and use. Such subjects will pay more attention to the design details of the profile than the end users during purchase, thus paying more attention to various design features of the product, especially the internal cavity structure has a larger design space and accounts for a larger proportion in the profile interface, is a design feature that should be emphatically considered. Below we look at the characteristics of the profile itself, the first is the definition of its discipline, refers to the metal after plastic processing, with a certain cross-sectional shape and size of the solid straight bar. The profile is a product with a certain geometric shape made of materials such as iron and aluminum with a certain strength and toughness through rolling, extrusion, casting and other processes. It has predetermined mechanical properties by virtue of its appearance size and cross-sectional shape. The design of profile section mainly considers whether the corresponding section has good mechanical properties. In addition, considering the connection form of the final product, and adding auxiliary structures such as connecting ribs in the cross-sectional design, the direct consideration is still the function. For example, the relevant operators in the manufacturing process, the design and manufacture of the profile section, directly consider whether the section makes the profile more powerful (with features), rather than looking more handsome (decorative features). Forcing fiction to be aesthetic, or to define it as a decorative feature, is not too convincing, and will lead to the need to consider too many irrelevant factors in the determination of design infringement, which makes the determination of infringement more cumbersome and more prone to problems. Regarding the logical analysis of the above-mentioned referee's point of view, we first look at its logical characteristics. There is a logical fallacy called the affirmative latter. The normal logic is that the former is true-> the latter is true, and the affirmation of the latter is directly or indirectly through some form of description substantially affirms the latter, and the common form is to strengthen the opposite party's affirmation of the latter through multiple direct or indirect terms. However, the relevant description of the judgment in this case "when purchasing patented products, such subjects will pay more attention to various design features of the products, especially the internal cavity structure has a large design space, which accounts for a large proportion of the profile section and is the design feature that should be considered" includes two "design features" and one "design space", thus strengthening the true understanding that "the profile section shape is the design element. However, is the so-called "design feature to be considered" a design feature of a true industrial design? In fact, many guiding cases of the Supreme Court are trying to separate decorative features (design features) and used features (functional features). However, the first paragraph of Article 11 of the Supreme People's Court's (II) on Several Issues Concerning the Application of Laws in Hearing Patent Infringement Disputes stipulates that when the people's court determines whether the design is the same or similar, it shall be based on the design features of the authorized design and the accused infringement design, comprehensive judgment based on the overall visual effect of the design; design features mainly determined by technical functions and features such as materials and internal structure of the product that do not affect the overall visual effect shall not be considered. As a further example, the following situations usually have a greater impact on the overall visual effect of the design: (1) The parts of the product that are easily observed directly during normal use are relative to other parts. For the profile section, the design should first consider the mechanical properties of the profile, and then, for example, the process of extrusion, such as the transition design at the corner, these two considerations are determined by the technical function, rather than the decorative decision. As far as the characteristics of the profile are concerned, considering the appearance design characteristics of the profile section, the essence is that the shape of the section affects the expression of the shape characteristics of the profile used to show people. As an intermediate product, the general consumer has more in-depth consideration than the end user. The more in-depth consideration is not the end user's simple perception of side beauty, but the expression of side beauty display and cross-section to side beauty display, thus affecting the end user's perception, and more will consider the correlation between cross-section structure and beauty perception, rather than what kind of beauty the cross-section structure itself will give people. People who have studied industrial design know that "industrial design leads to a new relationship between commodities and users except for the simple use of functions". Although a large number of designs have both the use of functions and the consideration of "beauty", they cannot get rid of the constraints of "new relationship". With the help of this new relationship, it makes the right holders and the public have relatively stable expectations of the object of protection of the design, instead of dividing the characteristics of "use" in some cases and taking the characteristics of "use" into account in other cases. It has to be said that profiles, a product with relatively few characteristics belonging to design elements, are identified as the object of design protection, which is very tasteless. However, the characteristics that should not belong to design elements should not be taken into account because of the lack of them, otherwise there will be a very large space for the determination of the scope of protection of design patents, and the public will not have a stable expectation of its protection scope, and then make the behavior of the public infringement in unpredictable, unstable, uncertain state, can not reasonably arrange their own production and operation.

2021-12-23

The legal observation (I) of government investment and financing. On the dilemma and adjustment path of PPP development.

Foreword If it is not appropriate to describe the current situation of PPP as "in trouble", it should not cause too much controversy to describe it as "in an awkward situation. Regardless of the decreasing number of PPP projects that have been signed and landed in previous years, it is quite common that projects should be returned to the warehouse but not returned to the warehouse or projects should be rectified without policy support due to problems such as untimely government payment, over-generalization of total project investment, no actual operation and maintenance content of projects, insufficient payment income of project users, and non-standard project performance management, what's more, local governments have come up with the idea of returning projects that have been put into storage because they are not willing to deal with the normative supervision of projects. However, regardless of the current situation of PPP, unless there is a better and more standardized investment and financing mechanism in the field of infrastructure and public utilities, PPP still has the applicability and vitality of consensus, and PPP projects that have been landed will continue to be implemented. PPP has a more promising future. Since 2014, with the introduction of a series of PPP promotion policy documents by the State Council, the Ministry of Finance and the National Development and Reform Commission, the local government has ushered in a period of vigorous development of PPP. Since the strengthening of PPP normative management in 2019 (represented by the document "Implementation Opinions on Promoting the Normative Development of Government and Social Capital Cooperation" (Caijin [2019] No. 10)), PPP development has entered a relatively quiet period. Although the new warehousing projects can still maintain hundreds of net growth every year-according to the monthly report data of the national PPP comprehensive information platform project management database from January to may 2021, there are 270 new warehousing projects, 249 contracted landing projects, 174 construction projects, 149 returned projects and 121 net increase projects-on the surface, local PPP is still in a state of steady development, however, many problems are hidden under the calm appearance: on the one hand, the project has actually been terminated ahead of schedule, but there are many projects that have not been returned due to the failure to reach a compensation plan and other reasons, and these projects have not been counted in the return data; On the other hand, due to insufficient feasibility study and imperfect error correction mechanism in the early stage, the implementation stage of new warehousing projects is facing adjustment difficulties. The dilemma of PPP development in 1. If it is not appropriate to describe the current situation of PPP as "in trouble", it should not cause much controversy to describe it as "in an awkward situation. Let's first look at some of the problems encountered during the implementation phase of the stock project, which, while not necessarily universal, are clearly not limited to individual cases, but have class or geographical commonalities. According to the existing policy, some problems have led to the operation of the project is not standardized. (I) government payment is not timely Government payment is not timely has become a common phenomenon of PPP projects. The apparent reason is that the government has no money, and local governments are usually not shy about it. The financial ability of local governments to pay is the main reason that affects government payments, but things are not as simple as they seem. Whether it is local governments or social capital, the reason why they prefer to simply attribute the reason to money, in a sense, is nothing more than not wanting to touch the pain point of PPP projects-normative issues. So, what are the pain points behind the government's untimely payment? 1. Project completion settlement and project completion financial accounts are not timely On the surface, the reason for the delay is efficiency, but the following factors may also be involved: (1) The EPC general contractor, especially the fixed total price general contractor, has not made a project budget; (2) There are differences between the government and the social capital on the claims caused by the delay of the construction period. (3) The government and social capital parties cannot agree on the calculation of interest during the construction period of the project, especially in projects where the use of funds by the project company is not standardized (e. g. social capital is collected and used by the project company funds, social capital is not standardized to lead to financing, etc.); (4) The government side and the social capital side cannot reach a consensus on the process of the project completion settlement audit, the government side directly to the project settlement audit, or on the basis of the project company and the construction party settlement audit to review and decide whether to re-audit as appropriate; (5) The procedures for changing the project content are incomplete; (6) the project construction information is not perfect, etc. Without the final financial accounts of the project, the total investment of the project cannot be determined, and the uncertainty of the total investment will inevitably affect the government's payment. 2. Project operation and maintenance costs are unaudited If the social capital party has not budgeted the project operation and maintenance costs in advance and has not been audited afterwards, or if the project operation and maintenance content has changed significantly and the social capital party still applies for payment under the project contract, it is obviously difficult for the government party to fully pay the contract. 3. The project did not do performance evaluation The government did not organize the performance evaluation of the project operation and maintenance in a timely manner. Given that performance evaluation is the basis of project payments, I .e., PPP projects need to strictly implement the pay-for-performance principle, there are procedural obstacles to project payments without performance evaluation. 4. The design of the project payment (return) mechanism is unreasonable. The design of the project implementation plan and the project contract's payment (return) mechanism for the project is not in line with the actual project. For example, the project return mechanism designed by some urban-rural sanitation integration or urban-rural sewage treatment integration projects is feasibility gap subsidy. As the user payment part (garbage disposal fee or sewage treatment fee) has the nature of similar administrative charges, the implementation plan is usually designed to be collected by relevant government departments. If the user payment income actually collected by relevant government departments is insufficient, the government budget only includes the gap subsidy part because the project return mechanism is feasibility gap subsidy, therefore, even if the government is willing to make up the shortfall in user-paid income, it cannot be included in the budget due to the project return mechanism. For example, some packaging projects are designed to be paid by the government only after all the projects enter the operation and maintenance period, but some sub-projects will be completed ahead of schedule and enter the operation and maintenance period. For example, each road in the municipal road project will be completed, accepted and put into use one after another. In this case, even if the government is willing to pay according to the actual situation, the government payment cannot be included in the annual budget due to project design reasons. However, if the government does not pay according to the actual operation and maintenance, then the relevant operation and maintenance costs can only be included in the construction cost, which may lead to the total investment of the project is over-estimated. Total investment of (II) projects The total investment of the project is a common phenomenon in PPP projects. There may be many reasons for the over-generalization of the total investment of the project, among which the social capital is usually caused by poor project organization and management, such as unqualified quality rework, material and labor cost increase caused by construction delay and other factors; the government is usually caused by project content adjustment or design change and other factors; in addition, as mentioned above, there may be cases where the sub-project of the packaged project is completed and accepted in advance and enters the operation and maintenance period, and the government cannot pay for the operation and maintenance, the relevant operation and maintenance fees can only be included in the construction cost resulting in the total investment of the project being over-estimated. If the responsibility for over-generalization of the total investment of the project can be solved according to the project contract, the normative problems of the project caused by the change of the total investment of the project may affect the subsequent operation of the project. According to the Ministry of Finance "on further strengthening the government and social capital cooperation (PPP) demonstration project standard management notice" (financial [2018] 54) requirements, for the demonstration project of the total investment of major changes, to deal with the project implementation plan, value for money evaluation report, financial affordability demonstration report, procurement documents, project contracts and other corresponding adjustments and changes. Although the notice is aimed at demonstration projects, according to its basic spirit, it should by extension be applicable to all PPP projects. However, the problem is that because the above notice does not further explain the "significant change", different understandings may lead to different results. Some local documents require that the project should withdraw from the project management database if the feasibility study report, project approval, implementation plan, value for money evaluation report, financial affordability demonstration report, procurement documents, project contract, etc. are adjusted and changed accordingly due to major changes in the core boundary conditions such as cooperation content and total investment. However, due to uncertainty as to what is meant by "major changes", many over-the-top projects can only be put on hold at present. No operation and maintenance content for (III) project Some PPP projects actually have no operational content. Such as shed reform resettlement houses, museums, archives, party history museums, exhibition halls, libraries, public hospitals, public schools, government affairs centers and other projects, the "Implementation Plan" usually takes property management services as the content of project operation and maintenance, but according to my country According to the "Property Management Regulations", the main body of property management services should be determined by the owner, so the social capital is not naturally the main body of project operation and maintenance. Moreover, the actual operation and maintenance subject of most projects is indeed not the social capital side. In the event that the social capital party is unable to participate in the property management services of the above-mentioned project, the project lacks other elements that can be operated and maintained by the social capital party, so the above-mentioned project actually has no operation and maintenance elements. Insufficient revenue from user fees for (IV) projects In the early storage of the local integrated pipe corridor project, due to the lack of underground penetration capacity of the pipe corridor within a certain geographical area and the high cost of entering the corridor, the pipe corridor was not actually put into use after it was built, that is, there was no corresponding pipe network into the corridor. However, in order to maintain the sustainable and daily safety of the pipe gallery throughout its life cycle, the social capital side also needs to maintain it on a daily basis. This would result in only maintenance costs and no corresponding operating income, I .e., zero user fee income for the project. Since the project implementation plan usually designs a considerable user fee income for the utility tunnel, the project will not be sustainable due to the imbalance of income and expenditure unless the project payment mechanism is adjusted or the utility tunnel project is adjusted out of the project package (in the case of packaging). In addition, as mentioned above, in the project of integration of urban and rural sanitation or integration of urban and rural sewage treatment, if the project return mechanism is designed as feasibility gap subsidy, then the user's paid part such as garbage treatment fee, sewage treatment fee, etc. will usually have insufficient income-the reasons may include inaccurate financial calculation, adjustment or cancellation of charging items or standards, etc, I won't repeat it here-and this risk obviously cannot be simply allocated to the social capital side. In this way, the above situation will lead to the same situation as the above-mentioned total investment of the project, that is, the project should be adjusted or returned to the warehouse or temporarily put on hold. (V) project performance management is not standardized Performance management includes the design and adjustment of performance evaluation indicators, the preparation of performance evaluation work programs, performance monitoring, performance evaluation, and the application of performance evaluation results, rather than simply performance evaluation and application of results. The performance evaluation indicators of some projects are seriously divorced from the actual situation of the project but are not adjusted, resulting in a mere formality of performance evaluation. Some projects have introduced an expert review mechanism in the performance evaluation work plan when the performance evaluation results are opposed, but they have not further clarified the expert selection mechanism and review organization process, resulting in the expert review mechanism being useless. However, setting the expert review mechanism as the pre-procedure of the above-mentioned dispute resolution mechanism affects the timely making of project performance evaluation results. Some local governments have a one-sided understanding of the basic principle of project payment according to efficiency, believing that there is no need for performance evaluation if the project does not pay, so they openly do not evaluate the project performance on the grounds that the project does not pay (as mentioned above, there is a situation that the government does not pay in time for PPP projects). Other local governments use the reason of saving expenses related to performance evaluation, under the condition that the government pays quarterly in the project contract, the performance evaluation is organized every six months or once a year. The performance evaluation cycle does not match the payment cycle, and the payment according to the efficiency cannot be effectively implemented. (VI) project information is not perfect The standardized operation of the project is the basis for the improvement of project storage information. As mentioned earlier, there will be inconsistencies between the total project investment, project operation and maintenance content, project return mechanism, etc. in the actual implementation of the project and the information in the preparation phase. According to the existing policies, major changes in the project need to be regulated through adjustment or treated as returned to the warehouse. However, the existing policy is not further clarified as to what constitutes a major change; therefore, many of the projects with the above problems are currently on hold, neither adjusted nor treated as returned. Based on this, the project storage information can only be temporarily shelved and cannot be improved in time. Adjustment Path of 2. PPP Standard Development (I) timely specification rectification According to the existing policy can regulate the rectification timely organization rectification. For example, if the project performance management is not standardized, it should be organized and carried out in a timely and standardized manner. If the government does not pay in time, it should improve the necessary procedures in time and fulfill the payment obligation according to the contract. If rectification cannot be regulated according to existing policies, rectification shall be made on the basis of adjusting existing policies or introducing new policies. For example, if the project construction content is changed, the total project investment is over-generalized, the project operation and maintenance content is adjusted, and the project return mechanism does not conform to the actual project, etc., through adjusting the existing policies or issuing new policies, it is clear under what circumstances can be rectified and under what circumstances should be returned to the warehouse. For the timely adjustment of receipt information that can be rectified by adjusting receipt information, rectification is completed. (II) decisively return to the warehouse If it violates the basic principles of PPP and cannot be rectified, it shall be directly returned to the warehouse. For example, projects (sub-projects) without actual operation and maintenance content, such as shed reform resettlement houses, museums, archives, party history museums, exhibition halls, libraries, public hospitals, public schools, and government affairs centers, belong to BT projects. If the above items are operated separately, they will be processed directly as warehouse return; if they are packaged, the relevant sub-items will be adjusted to warehouse-out on the basis of adjusting the project warehouse-in information. If it does not violate the basic principles of PPP, but should be returned to the warehouse according to the policy requirements, it shall be returned to the warehouse as required. For example, the above-mentioned major changes in the project, through the adjustment of existing policies or the introduction of new policies, still do not meet the requirements of the specification should be returned to the library, according to the return of processing. (III) Improve Policy Guidelines PPP is still in the stage of exploration and development in China, and many problems can only be gradually reflected through the practice of project operation, especially in the implementation stage. According to the foregoing, some problems are caused by the irregular operation of the project, while others are caused by the imperfection of existing policies. For example, Caijin [2018] No. 54 requires that projects with major changes such as the total investment of the project should be rectified by adjusting the corresponding storage information, but it is not clear what is meant by "major changes", resulting in some changes in the project can be rectified by adjusting the storage information or returned to the warehouse at a loss as to what to do; for another example, the Ministry of Finance's Guidelines for the Performance Management of Government-Social Capital Cooperation (PPP) Projects has introduced an expert review mechanism for objecting to the results of performance evaluation, but the selection mechanism of review experts, such as the number of expert groups, the professionalism and level of expert group members, and the allocation ratio of experts between the government and social capital, is not clear, in addition, the organization process of expert review, such as who can initiate expert review by the government and social capital, how to deal with it when the government does not initiate or select experts, the arrangement of expert review venues, the burden of expert review costs, etc., is not clear, resulting in the failure of the expert review mechanism to actually play a role. Based on this, in the context of PPP-related laws and regulations have not yet been issued, the State Council and relevant departments need to sum up experience in a timely manner according to the operation practice of PPP projects, and constantly improve relevant policy guidelines.

2021-12-23

Zhu Weidong and Guo Wei held a publicity lecture on "Constitution Learning and Operational Risk Prevention" for Jinan Drainage Service Center.

In order to further popularize the knowledge of the constitution, guide people from all walks of life to form a good fashion of carrying forward the spirit of the constitution and safeguarding the authority of the constitution, vigorously carry forward the spirit of socialist rule of law, and further enhance the legal awareness of the whole people, Zhu Weidong and Guo Wei of Zhongcheng Qingtai (Jinan) law firm carried out publicity lectures on "constitution learning" for Jinan drainage service center. Lawyer Zhu Weidong preached the status and main content of the Constitution and the thought and significance of the 2018 Constitution Amendment, and combined with the functions and business model of Jinan Drainage Service Center, explained the legal risk prevention and issues that need to be focused on in the operation of the center, which was highly praised by Jinan Drainage Center.

2021-12-23

Viewpoint | Research (II) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. The Relationship between the Creator and the Platform of 2. Network Literature The exercise of copyright caused by the change of (I) carrier is more dependent on the platform Many scholars have studied the special problems faced by traditional literary and artistic works in the Internet age, which will not be repeated here. The focus of this article is that when the main form of communication of literary works has shifted from paper publishers to online platform operators, the exercise of copyright and related rights is gradually becoming more dependent on the platform, and the dependence of works and authors on the platform is far greater than its dependence on publishers in the past. The strengthening of this dependence is first and foremost technology-related. Since online reading is not based on the spread of tangible copies, the copyright system that originated in the printing era is constantly being compressed in the new era. [] The discussion of copyright issues in the Internet age often starts from the convenience of infringing copy and dissemination. In addition to the "safe harbor principle", which has received more attention, it also produces research on technical protection measures (TPMs) and anti-circumvention legislation. This is also one of the main amendments to the copyright law that has just been announced. The formation of technical protection measures is almost impossible to achieve in the absence of the network platform. In addition, when the existing copyright specific system is applied to network literary works, it must also rely on the relevant functions of the platform to be realized. Two examples are given here. The first example is the application of the concept of "distribution" and the principle of "exhaustion of rights", which in the age of digital networks depends on the functionality of the platform. Exhaustion of rights means that the copyright owner has no right to control the re-transfer of the original or authorized and legally produced copy of the work after the first sale or gift to the public with the permission of the copyright owner. [] This principle is based on the tangible nature of the copy and the real right of the work carrier. The object of exhaustion of rights is a specific copy of the work, so there is no room for application in general online distribution. [] In the context of digital networks, the boundary between "transfer of copies" and "copying" has almost disappeared. In this case, the transfer of copies protected by the principle of exhaustion of rights must be expressed as the creation of new copies and the deletion of old copies. This kind of operation, in addition to effective technical protection measures, is almost impossible to achieve. [] In order to achieve this function, online literature platforms often no longer provide any copies that can be disseminated separately from the system of the platform itself. The work can only be read online with a specific account, or by using offline copies downloaded in advance on the mobile client. These offline copies are often encrypted, so they cannot be transmitted by the user, nor can they be read by different account subjects on the same device. This new way of dissemination of works once led to the study of "browsing" behavior in copyright theorists, leading to the concept of "right of contact. [] Although it is still controversial whether the "right of contact" can be a separate right, or just a form of expression of the right of reproduction, in fact, for the special form of online literary works, "do not get any copies" The browsing method has indeed become the mainstream. And this way of communication can only be carried out through the network platform. The second example is related to the protection of the personal rights of authors. The Copyright Law and related judicial interpretations allow the public or other subjects to reprint published works or fragments of works under certain specific circumstances, but these reprints do not harm the personal rights of the author. As a prerequisite, in particular, requirements such as the identification of the author are made. [] In order to promote individuals or their works, some authors often indicate in their own articles, allowing others to reprint their works under the premise of indicating the source. However, in the form of UGC, when online literary works are reprinted, their author information is often lost or deleted "intentionally or unintentionally. In the professional network literature platform, the identification of reprint and authorship is realized through a unified application program interface (API) and code protocol. This makes the reprint of the article from the past simple copy-paste, into a more advanced social network (SNS) interaction, the reprint of the article is generally through the network platform to provide a "share" button, sent to other platforms that support the same protocol, and automatically indicate the author and the source of the article. Under this mechanism, it is almost impossible, at least inconvenient, to delete authorship information. The establishment of this mechanism depends not only on the realization of the technology of the specific network platform itself, but also on the establishment and promotion of the relevant standards of the network literature platform industry. In addition, this mechanism also plays an important role in preventing other websites from evading tort liability through the "safe haven principle. The dependence of network literary works on the network platform is also reflected in the dissemination and utilization of works and the demand for resources and capital. From the perspective of resources, it is mainly related to the dissemination and creation of works. At present, the number of online writers in China has reached tens of millions [], while the number of readers has exceeded 0.4 billion. The huge number means that the promotion of authors, especially new writers, is more difficult, resulting in the "2-8 effect" of online writers in terms of income. [] However, the huge amount of data also means that it is possible to analyze the author's style and readers' likes and dislikes through big data, thus enabling the network platform to help readers quickly match articles they may be interested in through algorithm recommend and other means, and enabling the author to anticipate the market when creating so as to better design the writing content. From the perspective of capital, it is mainly related to the use of works. With the development of the cultural industry, the proportion of the development of literary derivatives in the whole literary industry is increasing. [] The main form of this derivative is the development of related film and television works and cultural and creative products. These developments have strong capital-driven characteristics and require significant capital support, while requiring a certain amount of output to spread risk and cost. In this case, the network platform not only reflects the advantages of its resource integration, but also provides the possibility for this kind of development. In addition, the current development of literary derivatives often uses copyright pledge financing to solve the funding problem [], and network platform operators, as professional intellectual property operators, are easier to form scale and comparative advantages in these jobs. The dependence on the platform has produced the result of the unity of opposites in two aspects: on the one hand, the network platform has been growing, and its role in the creation, dissemination and copyright utilization and protection of works has become increasingly obvious; on the other hand, the growth of the network platform has gradually established a monopoly position in the market, especially in the relationship between the author and the network platform operator, The author group is increasingly in a disadvantageous position. As a result, the relationship of interests, rights and obligations between the author and the dissemination, which has been established for tens of hundreds of years, but has not yet been stable, has been broken again. (II) interests and rights relations are broken From the perspective of the historical evolution of the copyright system, the "copyright" as a privilege originated from the development of printing and the rise of the specialized publisher industry. The modern copyright system, on the other hand, is due to the rise of the author's right, the game of interests and the balance, and at the same time relying on the development of the theory of private rights during the bourgeois revolution [], and finally after more than 300 years of establishment of the author's right as the core of the modern copyright system, as well as the communicator's right as the core of the neighboring rights system. The debate between the author and the online platform, whether it is the cause or the focus of the debate, is similar to the dispute between "author rights" and "copyright" hundreds of years ago. From the appearance, the current network writing protocol has no obvious flaws in terms of form or from the perspective of the authenticity of meaning. But objectively, from the perspective of the ownership of rights and the distribution of benefits, the author group is very dissatisfied with the content and results of these contracts. This dissatisfaction not only means that the needs of a certain interest group cannot be met, but also may lead to the failure of the existing relatively stable contract and negotiation mechanism based on the expectation and distribution of interests. From the perspective of benefit expectation, under the mode of free reading and membership fee, the source of website income does not point to specific works, let alone specific authors. This is not a big problem in the paper age. The era of paper media is generally characterized by "buy the manuscript first, then publish it", and the commercial risk is borne by the publisher. Although the income of newspapers and periodicals based on accompanying advertisements does not point to specific authors, for specific publications, in a certain period of time, the circulation and other factors that affect advertising revenue are relatively certain. At the same time, a set of relatively stable standards have been formed within the industry for reference. Therefore, the remuneration model of a particular publication based on its own size, based on the number of words, is both predictable and acceptable to the author. However, in the Internet age, the model of "publish first, then divide" is adopted, and the author's income from the work is unpredictable. The ability of property rights to regulate the allocation of resources through the operation of the market is based on as complete information as possible and as predictable as possible, otherwise it will inevitably lead to the creation of a large number of incomplete contracts, higher transaction costs, and market failure. In the Internet age, this decline in predictability is not a subtle change, but a systematic one, which is related to the distribution of benefits that can be generated subsequently. This is most prominent in the operation of derivatives of works. In the use of traditional works, publishers or network platforms can only enjoy publishing rights, information network dissemination and very limited modification rights based on agreements and legal regulations. The author almost retains most of the copyright, especially the right of deduction, which is mainly manifested in the right to adapt the work into film and television works. When a demand for derivative creation arises, the producer generally contacts the author and obtains authorization. However, in the era of OGC and PGC, the proportion of derivatives in the whole work utilization has increased, which makes the network platform hope to control the vast majority of copyright rights in their own hands. Therefore, when the online writing agreement is concluded, many platform parties will require the author to license or even transfer the copyright and other rights of existing works or future works, and even bring into control the rights that are exclusive to the author under the copyright law-the personal right of the work (mainly the right of signature). This may result in serious dissatisfaction among the author community when the benefits of derivatives operations are much greater than the author originally expected, especially when the benefits are disproportionate to the completion of the online reading share that the author receives based on the writing agreement. But from another point of view, the development of derivatives is closely related to risk. Still taking film and television adaptation as an example, among all online literary works, works with adaptation value may only account for a small number. At the same time, the production of film and television works, in addition to the work itself, also requires a lot of capital and other resources to intervene, and faces huge investment risks. On the one hand, the author community cannot carry out this work, on the other hand, the author generally cannot bear the risks associated with it. Network platforms are often packaged to obtain authorization to spread the risk. When entering the era of capital operation [], this situation becomes even more an inevitable result. In order to obtain investment, online platforms often use copyright as a financing tool in batch form and pledge to obtain funds. In this case, if the network platform operator cannot obtain the complete copyright, or needs to sign a peer-to-peer agreement with individual authors, the development of large-scale risk-controlled derivatives is basically impossible. From this perspective, the aforementioned reliance on the platform is further strengthened. The conflict of interest between authors and publishers hundreds of years ago resulted in the complete inversion of the publishing right system to the author's right system and the establishment of a modern copyright system with the private civil rights of creators as the core, but at the same time, through the regulation of the neighboring rights system, contract theory and market forces, the interests of publishers not only did not suffer too much blow, but also promoted the prosperity of the literary publishing industry, it promotes the realization of the value of the work and the win-win situation of the author and the publisher group. The most important reason is mainly due to the establishment of a copyright rights system with property rights as the core, which makes rights and obligations clear and the power of the market to allocate resources. This is consistent with the economic theory of property law and the economic analysis of intellectual property law. This paper does not attempt to predict the direction and development results of this conflict, but still advocates that the original economic intention of the copyright system should be realized through the clear division of rights and obligations-to realize the effective allocation of resources through the market and promote the development of social culture.

2021-12-22

The second creditors' meeting of Leling Yutai Real Estate Development Co., Ltd. was successfully held

On the morning of December 21, 2021, under the auspices of the people's Court of Leling City, with the understanding, cooperation and support of all creditors, the second creditors' meeting of Leling Yutai Real Estate Development Co., Ltd. (hereinafter referred to as "Yutai company") bankruptcy liquidation case was successfully held with Zhongcheng Qingtai (Jinan) law firm as the administrator. Due to the large number of creditors in this case, in order to thoroughly implement the important instructions on the prevention and control of the new crown epidemic, this meeting was held in the form of a network on the national enterprise bankruptcy reorganization case information network. the authorized representative of the chairman of the creditors' meeting, the representative of the administrator, the representative of the audit institution, the representative of the evaluation institution, the representative of yutai company and the representative of the staff attended the meeting on the spot. more than 400 creditors logged on the network meeting. At the meeting, the administrator made a "report on the phased work of the performance of his duties" and "a report on the verification of claims submitted to the second meeting of creditors", and submitted to the meeting of creditors for consideration and voting to adopt the "bankruptcy property change price plan" and "bankruptcy property distribution plan". As a real estate development enterprise, the bankruptcy of Yutai Company involves the interests of financial institutions, investors, builders, demolished people, property buyers and many other subjects. The contradictions of all parties are relatively concentrated and prominent, the case is complex, and the social impact is great. Based on the principles of law and regulations, diligence and due diligence, the administrator protects the legitimate rights and interests of all parties, coordinates conflicts of interest of all parties, actively resolves conflicts and disputes in bankruptcy liquidation, properly handles historical issues, and strives to maintain social stability. The smooth convening of this meeting will effectively promote the effective disposal of the assets of bankrupt enterprises in accordance with the law and safeguard the legitimate rights and interests of creditors to the maximum extent. The follow-up manager will continue to perform his duties, overcome difficulties, and work under the supervision of the court and creditors. The administrator will realize the bankruptcy property as soon as possible in accordance with the "bankruptcy property price change plan" approved by the creditors, try his best to maximize the value of the bankruptcy property, and distribute it in accordance with the "bankruptcy property distribution plan" after the completion of the price change, so as to ensure the smooth progress of the bankruptcy procedure of Yutai company, so as to realize the unity of the legal effect and social effect of the case.

2021-12-22

Zhongcheng Qingtai (Jinan) Law Firm was named "Excellent Law Firm" in Jinan Public Legal Service in 2021"

In order to meet the urgent needs of the broad masses of people for legal consultation, Zhongcheng Qingtai (Jinan) Law firm actively responded to the call of Jinan Public legal Service Coordination and Command Center and set up a service team led by Deputy Director Zhou Jiakui and composed of 25 backbone lawyers to participate in the 2021 duty work of the "12348 Public legal Service Hotline. The legal service team comprehensively used legal and psychological knowledge to answer questions for the general public, and received more than 6000 telephone consultations. Due to its excellent performance and outstanding achievements, Zhongcheng Qingtai (Jinan) law firm was rated as "excellent law firm" by Jinan public legal service coordination and command center ". Lawyer Zhou Jiakui, director of the Public Welfare Legal Service Center, and lawyer Liu Dong, a member, said that in the new year, the members of the legal service team will continue to work hard and contribute to the public legal service of Jinan.

2021-12-21