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Foreword Company liquidation refers to the act of clearing up the company's claims and debts, disposing of the company's remaining property and terminating the company's legal personality in accordance with the procedures prescribed by law in the event that the company is facing dissolution. Applying for company liquidation refers to that after the company is dissolved, the directors, shareholders and actual controllers of the company fail to perform their duties and fail to form a liquidation group for liquidation within the time limit specified in the company law, or deliberately delay the liquidation although the liquidation group is established, or there are other illegal liquidation behaviors that may seriously damage the interests of shareholders and creditors of the company, The shareholders or creditors of the company shall apply to the people's court for compulsory liquidation of the company. This paper will analyze the application company liquidation disputes from the aspects of legal provisions, litigation overview, dispute issues and adjudication rules. 1. related regulations 1. Company Law of the People's Republic of China Article 183 Where a company is dissolved due to the provisions of items (I), (II), (IV) and (V) of Article 180 of this Law, a liquidation group shall be established within 15 days from the date of occurrence of the reasons for dissolution and liquidation shall begin. The liquidation group of a limited liability company shall be composed of shareholders, and the liquidation group of a joint stock limited company shall be composed of directors or persons determined by the general meeting of shareholders. If a liquidation group is not established within the time limit, the creditor may apply to the people's court to designate relevant personnel to form a liquidation group to carry out liquidation. The people's court shall accept the application and promptly organize a liquidation group to carry out liquidation. Article 184 during the liquidation period, the liquidation group shall exercise the following functions and powers: (1) clean up the company's property, prepare the balance sheet and property list respectively; (II) notify and announce the creditors; (III) handle the outstanding business of the company related to liquidation; (IV) and pay the taxes owed and the taxes generated in the process of liquidation; (V) clean up the creditor's rights and debts; (VI) and deal with the remaining property of the company after paying off debts; (VII) participate in civil litigation activities on behalf of the company. Article 185 The liquidation group shall notify the creditors within 10 days from the date of its establishment, and make a public announcement in the newspaper within 60 days. Creditors shall, within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if they fail to receive the notice, declare their claims to the liquidation group. When filing a claim, a creditor shall explain the relevant matters of the claim and provide supporting materials. The liquidation group shall register the claims. During the declaration of claims, the liquidation group shall not pay off the creditors. Article 186 After liquidating the company's property and preparing the balance sheet and property inventory, the liquidation team shall formulate a liquidation plan and submit it to the shareholders' meeting, the general meeting of shareholders or the people's court for confirmation. The remaining property of the company after paying the liquidation expenses, the wages of the employees, the social insurance expenses and the statutory compensation, paying the taxes owed and paying off the debts of the company shall be distributed by the limited liability company according to the proportion of the capital contribution of the shareholders, and the limited liability company shall be distributed according to the proportion of the shares held by the shareholders. During the liquidation period, the company shall survive, but shall not carry out business activities unrelated to liquidation. The property of the company shall not be distributed to the shareholders until it has been paid off in accordance with the provisions of the preceding paragraph. Article 187 If the liquidation team finds that the company's property is insufficient to pay off its debts after liquidating the company's property, preparing the balance sheet and property inventory, it shall apply to the people's court for bankruptcy according to law. After the company is declared bankrupt by the people's court, the liquidation group shall transfer the liquidation affairs to the people's court. Article 188 After the liquidation of a company is completed, the liquidation group shall prepare a liquidation report, which shall be submitted to the shareholders' meeting, the shareholders' general meeting or the people's court for confirmation, and shall be submitted to the company registration authority to apply for cancellation of the company's registration and announce the termination of the company. 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 Supreme People's Court on the application.<中华人民共和国公司法>(II) on Certain Issues Article 7 A company shall, in accordance with the provisions of Article 70 of the Civil Code and Article 183 of the Company Law, set up a liquidation group within 15 days from the date of the occurrence of the cause of dissolution and begin to liquidate itself. Under any of the following circumstances, if a creditor, shareholder, director or other interested party applies to the people's court to designate a liquidation group to carry out liquidation, the people's court shall accept the application: If the (I) company fails to form a liquidation group within the time limit for dissolution; (II) deliberately delaying the liquidation despite the establishment of a liquidation group; (III) illegal liquidation may seriously harm the interests of creditors or shareholders. Article 8 When the people's court accepts a company liquidation case, it shall promptly appoint relevant personnel to form a liquidation team. The members of the liquidation group may be selected from the following persons or institutions: (I) the shareholders, directors, supervisors and senior managers of the Company; Law firms, accounting firms, bankruptcy liquidation firms and other social intermediaries established by the (II) in accordance with the law; Persons who have relevant professional knowledge and have obtained professional qualifications in social intermediary agencies such as law firms, accounting firms, and bankruptcy liquidation firms established in accordance with the (III). Article 9 If the members of the liquidation group designated by the people's court are in any of the following circumstances, the people's court may replace the members of the liquidation group upon the application of creditors, shareholders, directors or other interested parties of the company, or ex officio: (I) acts in violation of laws or administrative regulations; (II) loss of ability to practice or capacity for civil conduct; (III) acts that seriously harm the interests of the company or creditors. Article 10 Before the liquidation of a company according to law is completed and the cancellation of registration is completed, the civil proceedings of the company concerned shall be conducted in the name of the company. If a company establishes a liquidation group, the person in charge of the liquidation group shall participate in the litigation on behalf of the company; if the liquidation group has not been established, the original legal representative shall participate in the litigation on behalf of the company. Article 11 In the liquidation of a company, the liquidation group shall, in accordance with the provisions of Article 185 of the Company Law, notify all known creditors in writing of the dissolution and liquidation of the company, and make an announcement in an influential newspaper throughout the country or at the provincial level where the company is registered according to the size and geographical scope of business of the company. If the liquidation group fails to perform the obligation of notice and announcement in accordance with the provisions of the preceding paragraph, resulting in the creditor's failure to declare the creditor's claim in time and not being paid, and the creditor claims that the members of the liquidation group shall be liable for the losses caused thereby, the people's court shall support it in accordance with the law. Article 12 When a company is liquidated, if the creditors have objections to the claims approved by the liquidation group, they may request the liquidation group to re-approve them. If the liquidation group does not re-approve the claims, or the creditors still have objections to the re-approved claims, and the creditors file a lawsuit with the company as the defendant to the people's court for confirmation, the people's court shall accept it. Article 13 If a creditor fails to declare its claims within the prescribed time limit and makes a supplementary declaration before the end of the company's liquidation procedure, the liquidation group shall register it. The termination of the liquidation procedure of the company means that the liquidation report has been confirmed by the shareholders' meeting, the general meeting of shareholders or the people's court. Article 14 Creditors may pay off their claims in accordance with the law in the company's undistributed property. If the company's undistributed property cannot be paid off in full, and the creditor claims that the shareholder shall pay off the property it has acquired in the distribution of the remaining property, the people's court shall support it; except where the creditor fails to declare the claim within the prescribed time limit due to a major fault. If a creditor or liquidation group files an application for bankruptcy liquidation with the people's court on the grounds that the company has not yet distributed the property and the property already acquired by the shareholders in the distribution of the remaining property cannot be fully paid off the claims of the supplementary declaration, the people's court shall not accept it. Article 15 Where a company is liquidated on its own, the liquidation plan shall be submitted to the shareholders' meeting or the general meeting of shareholders for resolution and confirmation; where the people's court organizes liquidation, the liquidation plan shall be submitted to the people's court for confirmation. The liquidation group shall not implement the liquidation plan without confirmation. If the implementation of an unconfirmed liquidation plan causes losses to the company or creditors, and the company, shareholders, directors, other interested parties of the company or creditors claim that the members of the liquidation group shall be liable for compensation, the people's court shall support it in accordance with the law. Article 16 Where a people's court organizes liquidation, the liquidation group shall complete the liquidation within six months from the date of its establishment. If the liquidation cannot be completed within six months due to special circumstances, the liquidation group shall apply to the people's court for an extension. Article 17 If the liquidation group appointed by the people's court finds that the company's property is insufficient to pay off its debts when it cleans up the company's property and prepares the balance sheet and property list, it may negotiate with the creditors to make the relevant debt settlement plan. If the debt settlement plan is confirmed by all creditors and does not harm the interests of other interested parties, the people's court may approve it in accordance with the application of the liquidation group. After paying off the debts in accordance with the liquidation plan, the liquidation group shall apply to the people's court for a ruling to terminate the liquidation procedure. If the creditor does not confirm the debt settlement plan or the people's court does not approve it, the liquidation group shall apply to the people's court for bankruptcy according to 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 the controlling shareholders of a limited liability company are negligent in performing 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 is completed according to law. 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 21 Where the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company, and the actual controllers of the company who shall be liable in accordance with the provisions of Article 18 and the first paragraph of Article 20 of these regulations are two or more, if one or more of them claim that other persons share the responsibility according to the size of the fault after assuming civil liability in accordance with the law, the people's court shall support it in accordance with the law. Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. 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. Article 24 Cases of company dissolution and company liquidation shall be under the jurisdiction of the people's court in the place where the company is domiciled. The domicile of the company refers to the location of the company's main office. If the location of the company's office is not clear, the case shall be under the jurisdiction of the people's court in the place of its registration. The basic people's courts shall have jurisdiction over the dissolution litigation cases and company liquidation cases of companies approved and registered by the company registration authorities of counties, county-level cities or districts; the intermediate people's courts shall have jurisdiction over the dissolution litigation cases and company liquidation cases of companies approved and registered by the company registration authorities at or above the prefecture-level cities. (3) the People's Republic of China Civil Code Article 69 A legal person shall be dissolved under any of the following circumstances: (I) the period of existence stipulated in the articles of association of the legal person expires or other reasons for dissolution stipulated in the articles of association of the legal person occur; The authority of the (II) legal person is dissolved by resolution; The (III) needs to be dissolved due to the merger or division of the legal person; The business license and registration certificate of a (IV) legal person are revoked according to law, and the legal person is ordered to close down or be revoked; (V) other circumstances prescribed by law. 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. 4. Minutes of the Symposium on the Trial of Cases of Compulsory Liquidation of Companies by the Supreme People's Court Article 14 If the respondent fails to provide evidence to the contrary after the applicant has provided the respondent's intentional delay in liquidation in its own liquidation, or if there are other evidentiary materials that may seriously harm the interests of creditors or shareholders, the people's court shall accept the application for compulsory liquidation filed by the applicant. If a creditor applies for compulsory liquidation, the main property, account books, important documents, etc. of the respondent are lost, or the whereabouts of the respondent's personnel are unknown, resulting in the inability to liquidate, the people's court shall not reject it on this ground. Article 15 If, after accepting an application for compulsory liquidation, the people's court, upon examination, finds that the application for compulsory liquidation does not conform to the provisions of the law, it may rule to reject the application for compulsory liquidation. Overview of 2. Litigation Applicant: Shareholder/Creditor/Director</中华人民共和国公司法>
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Point of View | On the Protection of Job Invention and Creation
According to the Patent Law and its implementing rules, the intellectual property right of service invention creation belongs to the unit, and the inventor only enjoys the right of signature and the right to reward. In practice, the unit only stipulates the obligations of the inventor in the contract or rules and regulations, rarely stipulates its rights, does not pay rewards and remuneration in accordance with the law, and infringes on the inventor's right of signature. Taking into account the unit's material input and actual management expenditure, it is necessary to take into account the interests of both parties, mobilize the enthusiasm of both parties, and effectively protect the legitimate rights and interests of the creators of scientific and technological achievements. Definition of 1. Service Invention-Creation Service inventions and creations refer to inventions and creations completed by performing the tasks of the unit or mainly using the material and technical conditions of the unit. If the unit has a contract with the inventor or designer to make an agreement on the right to apply for a patent and the ownership of the patent right, the agreement shall be followed. In accordance with the provisions of the Patent Law and the Regulations for the Implementation of the Patent Law, an invention-creation that falls under one of the following two circumstances is a service invention-creation: 1. Perform the tasks of the unit to complete the invention. It mainly includes three situations:(1) inventions and creations made in their own work;(2) inventions and creations made by performing tasks other than their own work delivered by the unit;(3) inventions and creations made within one year after retirement, transfer from the original unit or within one year after the termination of labor and personnel relations, which are related to their own work undertaken by the original unit or tasks assigned by the original unit. 2. Inventions and creations completed by using the material and technical conditions of the unit. The material and technical conditions of the unit mainly refer to the funds, equipment, spare parts, raw materials or technical data not disclosed to the public. Regarding the ownership of the rights of service inventions, according to the "Patent Law" and the "Implementation Rules of the Patent Law", the right to apply for a patent for a service invention-creation belongs to the unit. After the application is approved, the unit is the patentee. The unit shall have the right to dispose of its right to apply for a patent for a service invention-creation and the patent right. According to actual needs, the unit may also adopt other forms of intellectual property protection other than patent protection, such as the right to new plant varieties, the right to layout design of integrated circuits, and the protection of technical secrets. Protection Measures for 2. Service Inventions and Creations On April 2, 2015, the Legislative Affairs Office of the State Council announced the "Draft Regulations on Service Inventions (Draft for Review)" (hereinafter referred to as the "Draft for Review") submitted by the Intellectual Property Office and the Ministry of Science and Technology to the State Council for deliberation to solicit opinions from all walks of life. Although the draft for review has not yet been promulgated and implemented, some of these systems are very worthy of reference by units and inventors or designers, and can play a positive role in promoting the management of service inventions.. In combination with the draft for examination and approval, the patent law, the detailed rules for the implementation of the patent law and other relevant provisions, the measures and suggestions for the protection of service inventions and creations are put forward: (I) Establishment of a System of Rewards and Remuneration for Job Inventions The service invention management system is mainly about the application, management, application, reward, protection and other aspects of the service invention, which should be clearly defined in the system: the inventor or designer of the service invention shall be rewarded, and after the implementation of the invention-creation patent, the inventor or designer shall be given reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained. The unit may also agree on relevant matters by signing a special agreement with the inventor and designer. For those that are not agreed upon or stipulated in the rules and regulations, the inventor and designer may require bonuses and remuneration in accordance with Articles 77 and 78 of the Detailed Rules for the Implementation of the Patent Law. The legal standard for bonuses is: an invention patent The minimum bonus is not less than 3000 yuan; the minimum bonus for a utility model patent or design patent is not less than 1000 yuan. The legal standard of remuneration is: not less than 2% of the operating profit from the implementation of the invention or utility model patent or not less than 0.2 of the operating profit from the implementation of the design patent shall be withdrawn each year, and the inventor or designer shall be given as remuneration, or the inventor or designer shall be given a one-time remuneration with reference to the above proportion; the unit granted the patent permits other units or individuals to implement its patent, not less than 10 per cent of the royalties collected shall be paid to the inventor or designer as remuneration. (II) establish invention reporting system 1. Reporting time and reporter. Where a unit may require the inventor to complete an invention related to the business of the unit, it shall report to the unit within the specified time from the completion of the invention. Inventions made by two or more inventors shall be reported to the unit by all the inventors or their representatives. 2. The contents of the invention report. Including: the names of all inventors, the title and content of the invention, opinions and reasons on whether the invention is a service or non-service invention, and other matters that the unit or inventor deems necessary to explain. 3. Unit handling opinions. The unit shall give a written reply within the prescribed time after receiving the invention report; if the unit fails to reply within the aforementioned time limit, it shall be deemed to agree with the inventor's opinion. If a unit claims in its written reply that the reported non-service invention is a service invention, it shall state the reasons. If the inventor puts forward a written objection within the specified time after receiving the reply from the unit, the two parties may resolve it through consultation, request the patent administrative department for mediation, litigation or arbitration; if no objection is raised, it shall be deemed to agree with the opinion of the unit. 4. The processing procedure disclosed by the inventor without authorization. The unit may stipulate that the invention may not be disclosed without the unit's consent, nor may it apply for intellectual property rights or transfer them to a third party. (III) Strengthening the Turnover Management of Personnel Related to Job Invention According to Article 12 of the Regulations for the Implementation of the Patent Law, a patent applied for after leaving office constitutes an essential element of a service invention, and shall meet both the time and content requirements: 1. Time element: refers to the dispute patent after retirement, transfer from the original unit or labor, personnel relations terminated within 1 year. 2. Content elements: refers to the patent application in the original unit to undertake their own work or the original unit assigned tasks. For those who have mastered the patented technology and trade secrets of the unit, if they do not strengthen their resignation prevention measures, it is very likely to cause significant damage to the legitimate interests of the unit in the future. To this end, the employer may formulate a non-competition management system in accordance with the relevant provisions of the Labor Contract Law. Select the appropriate agreement method, either stipulate the non-competition clause in the labor contract, or sign a separate confidentiality agreement to reasonably determine the scope of the subject and the scope, region and duration of the competition. For example, it is agreed that the person with non-competition restrictions cannot go to other employers that have a competitive relationship with the production or operation of similar products and businesses of the unit, or start production or operation of similar products and businesses by themselves; it is important to note that the non-competition period should not exceed two years. If there is no agreement to give economic compensation to the laborer after the termination or termination of the labor contract, and the laborer has fulfilled the obligation of non-competition, the employer may be required to pay 30% of the average wage of the laborer in the 12 months before the termination or termination of the labor contract. Economic compensation (Note: If 30% of the average monthly wage is lower than the minimum wage standard of the place where the labor contract is performed, it shall be paid according to the minimum wage standard of the place where the labor contract). If the parties have agreed on non-competition and economic compensation in the labor contract or confidentiality agreement, and after the termination or termination of the labor contract, if the employer fails to pay economic compensation for three months, the employee may request the people's court to lift the non-competition agreement. Current situation of disputes over the right of duty patent in 3. In Weike's pre-legal information base, search for the cause of "patent right ownership dispute, patent application right ownership dispute" and search for the key words "invention-creation and resignation related to the job undertaken by the original unit or the tasks assigned by the original unit". A total of 574 cases were retrieved, of which 70 were from the Supreme People's Court, accounting for 12%; 223 higher people's courts, accounting for 39%; the Intermediate People's Court has 215 cases, accounting for 37%; from the focus of the dispute, the content of the dispute in the case is mainly judged by "relevance", that is, from the technical field to determine "relevance", from the technical characteristics to determine "relevance", from the technical field, the technical problems solved, and the technical means implemented to determine "relevance". For example, in the Supreme People's Court Guidance Case (2019), Li Jianyi, Supreme Court Minshen No. 6342, and the civil ruling on retrial review and trial supervision of patent right ownership disputes of Shenzhen Remote Intelligent Equipment Co., Ltd., the focus of the dispute is: the specific content of Li Jianyi's job or assignment during his tenure in Weibang Company, the specific situation of the patent involved and its relationship with Li Jianyi's job or assignment, etc, the court held that Li Jianyi, as the only inventor of the patent involved, applied for the patent involved in the case in his own name less than 3 months after leaving Weibang, and could not make a reasonable explanation of the technology research and development process or the source of the technology, which was not in line with common sense. In China's legislative practice, the unit to which the inventor or designer belongs directly owns the patent right of the service invention-creation, and the invention-creation completed by performing the task of the unit or mainly using the material and technical conditions of the unit is classified as the service invention-creation, which is the core standard to judge whether the invention-creation belongs to the service invention or the non-service invention. At the same time, the law also provides for the attribution of job inventions, the principle of autonomy, and the two parties agree to take precedence over the legal attribution of job inventions. Therefore, in order to avoid disputes over the ownership of patent application rights or patent rights, it is recommended that the inventor or designer and the employer make an agreement or system regulations to divide the ownership of the job invention involved, so as to avoid disputes over rights and cause litigation to both parties. Tired and heavy economic losses.
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Viewpoint | Research (I) 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. This series of articles defines "online writing agreement" as an agreement between online literature authors and online literature platform operators on issues such as the creation, utilization, ownership and licensing of online works, and distribution of benefits. When literary creation entered the Internet age, the controversy over the distribution of interests between authors and communicators, which occurred hundreds of years ago, arose again. Regardless of form and content, history repeats itself in almost the same way. The difference is that the market power of publishers at the beginning came from feudal privileges [], while today's network operators come from the advantages of capital and resources. This "five-five break" incident [], which occurred in early May 2020, is an outbreak of this debate, which is caused by the dissatisfaction of the online author community with the online platform writing protocol. From the appearance of the object of rights, there is no obvious difference between network literary works and traditional written works, and the term "network" seems to only define a carrier and communication channel of these works. Therefore, it seems that the traditional theory of copyright can be used to deal with the related problems, supplemented by the new copyright system such as the right of information network dissemination. However, from the perspective of the creation and dissemination mode of network literature in recent years, this idea has been obviously inadequate. The traditional online literature creation platform mostly exists in the form of online literature community. The author publishes his works in special or comprehensive forums. The online platform only provides software support and extremely low level value-added services. However, from the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform. The copyright and neighboring rights arising from the work are exercised by the platform and the work in accordance with the contractual agreement between the two parties, the most important of which is the ownership and licensing of the copyright, as well as the distribution of the proceeds arising from the dissemination of the work between the platform and the author. The dispute between the two sides also arises from the conclusion and performance of these contracts. On the surface, these contracts have not deviated from the theoretical and institutional framework of the classic civil law, contract law and copyright law, and there are no problems such as defects in meaning from the appearance. However, these contracts have led to complex disputes between many authors and platforms, and have spawned disputes about author rights protection, platform responsibilities, and overlord clauses. On the one hand, the author group believes that its legitimate rights and interests have been improperly deprived, and the platform uses its knowledge advantage and capital hegemony to squeeze the author's interests. [] On the other hand, in the process of spreading literary works on the Internet, the formation of the advantages of the network platform is both necessary and inevitable. How to balance the interests of both sides, protect the rights and interests of authors and communicators, and guide the healthy development of this new literary form is a problem that needs attention. This paper focuses on the contractual nature of online writing agreements and related legal issues. Network writing agreements are mostly nameless contracts, which appear in the form of listing the rights and obligations of both parties, and the actual legal relationship is often inconsistent with the wording of the contract. For example, some clauses appear in the form of "copyright license", but their essence almost constitutes the transfer of copyright. Some clauses define the work as "user-generated content (UGC)", but the platform's control over the work is much greater than this. Some clauses define the author's requirements for creation, the ownership of rights and obligations, and even make the two constitute a de facto labor or labor relationship. In addition, there are some contents in these contracts that are contrary to the copyright law and may be invalid. [] Therefore, this paper attempts to analyze the legal problems related to the copyright contract nature of the network literature platform, and tries to put forward a solution angle. The Difference between 1. Network Literature Creation and Related Traditional Formats The Combination of (I) Network Literature Creation and Traditional Publishing Mode The network literature industry has two ancestors, the first is the traditional book, newspaper and publishing industry, and the second is the traditional network literature creation existing in the online literature community. In the primary form of traditional online literature creation, works exist in the form of "user-generated content" (UGC). Authors publish works in special or comprehensive forums. Online platforms only provide software support and very low level value-added services. The result of the continuous development of this model is the emergence of a group of "writers" who specialize in network literature writing, and some network platforms have gradually evolved into specialized network service providers for the publication and operation of network literature. and began the exploration and innovation of a new business model. At this time, online literature entered the era of "professionally generated content" (PGC) and gradually formed an industry. At the same time, the relationship between the author and the online literature platform has also been transformed from a relatively loose and individual "user-service provider" model to a copyright licensing and transfer model, and a more complex and complex set of commercial creation and operation has been formed. system. [] With the development of these business models, the online literature platform finally entered the "professional production content" (OGC) model and formed an industry. Under the PGC and OGC models, online literature creation began to move closer to the business model of the traditional book publishing industry. The traditional publishing industry includes book publishing and newspaper publishing, which is mainly divided into two categories: submission and submission of manuscripts in terms of the order of completion of manuscripts and the formation of publishing agreements. Contributions are generally based on work that has already been completed. In addition to dealing with it in accordance with the relevant provisions of the copyright Law, in book publishing, the author and the publishing house generally sign a more detailed book publishing contract to agree on matters related to copyright and remuneration; in the case of newspapers and periodicals, the author's contribution means that he has agreed to the format contract determined by the newspaper agency in documents such as "instructions for soliciting manuscripts. In the case of manuscripts, newspapers and periodicals often sign a "special columnist cooperation agreement" with the author, which stipulates the frequency and content of the author's contribution in the form of contractual rights and obligations. The network writing protocol is generally used in a similar way to the above two. From the perspective of the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform. The copyright and neighboring rights generated by the work are exercised by the platform and the work in accordance with the contract, and the income generated by the dissemination of the work, distribution between platform and author. The Payment and Profit Model Innovation of (II) Network Literature Creation In the initial stage of network literature creation, the profit model of the network platform is relatively simple, and its basic mode of operation is to provide free publishing and reading services to authors and readers as a network service provider (ISP). [] In this model, there is no clear boundary between the author and the reader, and the revenue of the website platform mostly comes from advertising revenue and derivatives revenue, while some more mature websites may charge users a fee and provide some limited value-added services. In the traditional publishing industry, there are generally three ways for publishers to pay authors:[] Newspapers and periodicals generally adopt a one-time payment model, which is generally based on the number of words, while book publishing generally has two types of remuneration system and royalty system. The for-profit model of publishers generally adopts two parallel methods, one is to sell for profit, that is, to sell printed copies of books, as well as to distribute newspapers and periodicals, and the other is to rely on the reputation of the publication itself, such as advertising revenue, service provision or brand operation. [] In addition, there is the self-funded publishing model of books, which is not discussed in this article. After entering the era of PGC and OGC, the profit-making model adopted by the online literature platform is basically the product of the integration and development of the traditional publishing industry and the profit-making model of UGC websites. Literary websites generally use a paid reading model or a free reading model, or a combination of the two. [] There are mainly two types of paid reading. One is the individual paid reading mode, that is, readers pay individually to obtain the reading rights of a specific work or the works of a specific author, which is equivalent to "buying" a certain work. The other mode is the membership fee mode, that is, the platform sets all or part of the article or some chapters of the article as non-open reading rights, users get a package of reading rights for a certain period of time by paying a regular fee. In the free reading model, the platform continues the UGC era, with advertising revenue or derivatives development-based for-profit methods. The innovation of the profit-making mode of the network platform has led to the change of the distribution of interests between the platform and the author, which has led to some debates. Under the single-read payment model, the platform side will generally derive its income from a single article or author, and after deducting the necessary operating costs, it will share with the author, and the dispute is generally limited to different opinions on the share ratio. However, under the membership fee mode and free mode, since the income of the website does not point to a specific author or work, its income distribution method has become the focus of the fierce dispute between the two sides,[] which is also one of the causes and focuses of the "five-five break-off" incident. [1] Wu Handong. Research on the basic issues of intellectual property rights (sub-thesis)[M]. Beijing: China Renmin University Press. 2005. Sub-thesis [2] Chen Qian. Read the "55 break more section" truth: the net text has changed, the chariot changed the string to open a new war [EB/OL].http://finance.sina.com.cn/wm -05-18/doc-iirczymk2231906.shtml,2020-May 18, 2020. [3] Kexin Wenchuang. If there is no skin, how can Mao attach it? From the "hegemonic contract" to talk about whether the online platform should harvest the author [EB/OL]. https://www.jianshu.com/p/cba46aa303a3,2020年05月18日. [4] Jia Yinshi, Lin Xiuqin. The rise and response of copyright license format contract in the Internet environment [J]. Journal of Dalian University of Technology (Social Science Edition),2019,40(06):74-80. [5] Wang Haitao, Ren Yuanyuan. Professional content producers are never "sunset people" -- Discussion on "traditional writers face professional survival crisis" [J]. China Publishing, 2016(19):23-25. [6] Liu Sai, Ge Hongbing. Five Trends in the Development of Network Literature: Observation on the Creation and Publication of Network Literature in 2019 [J]. China Book Review, 2020(01):52-66. [7] Zhang Huibin, Wu Yunshi. Changes of Author's Remuneration System in New China: Process, Motivation and Enlightenment [J]. Publishing Science, 2019,27(04):24-32. [8] Ye Lu (Editor-in-Chief of Shanghai Translation Publishing House). Six Paths to Innovation of Publishing Business Model [N]. China Book Business Daily, 2006-03-24(006). [9] Zhu Wei. Free ecology of online literature is the trend [N]. Procuratorial Daily, 2020-05-13(007). [10] Book opening is appropriate. Behind the boycott of the author: is the new contract infringing and is there a future for free reading [EB/OL].https://www.thepaper.cn/newsDetail_forward_7289350,2020年5月20日.
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On December 16, 2021, lawyer Che Xiaoyang, senior partner of Zhongcheng Qingtai Jinan Institute and deputy director of the company's legal affairs department, and lawyer Qu Meng Yu of Zhongcheng Qingtai Jinan Free Trade Zone Institute were invited by Hualu Investment Development Co., Ltd. to carry out special legal training on "Analysis of Practice and Key Points of Investment Business Operation of State-owned Enterprises. Lawyer Che Xiaoyang and Lawyer Qu Mengyu combined their years of service experience in the investment field of major state-owned enterprises and group companies in Shandong Province and Jinan City. Through concept analysis, process series, risk analysis and case interpretation, they conducted training and explanation on key work issues such as mergers and acquisitions of state-owned enterprises, private equity fund investment and IPO review of listed companies (investment targets), the specific issues involved in the investment work of Hualu Investment Development Co., Ltd. were exchanged in depth. The participants spoke highly of the training, believing that the training content was comprehensive, professional and practical, which deepened the company's employees' overall understanding of the investment business, enhanced customers' awareness of risk prevention in the creation, merger and investment business, and laid a good foundation for the company's actual decision-making management before, during and after the investment in the future.
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Corporate Litigation Study... Corporate litigation rules of the company's capital reduction dispute.
Foreword The company's capital reduction dispute refers to the civil dispute caused by the company's reduction of registered capital in violation of legal procedures and conditions, which harms the interests of the company's shareholders or creditors. Capital reduction disputes are mainly divided into several categories: 1. Company shareholders file a lawsuit to confirm that the company's capital reduction is invalid or cancel the company's capital reduction resolution, which belongs to the company resolution dispute in the company dispute; 2. Company creditors file a lawsuit to require the company to pay off its debts or provide corresponding guarantee, which belongs to other disputes in the commercial field; 3. Due to the illegal capital reduction procedure, the company's creditors sued the capital reduction shareholders to assume supplementary liability for the company's debts within the scope of the capital reduction, and this type of dispute is a typical capital reduction dispute. By combing the relevant laws, supplemented by typical cases, this paper tries to clarify the relevant legal provisions and judicial rules for reference. 1. related regulations (I) related laws 1. the People's Republic of China Civil Procedure Law Article 26 Litigation arising from disputes over the establishment of a company, confirmation of shareholder qualifications, distribution of profits, dissolution, etc., shall be under the jurisdiction of the people's court of the place where the company is domiciled. 2. Company Law of the People's Republic of China Article 177 When a company needs to reduce its registered capital, it must prepare a balance sheet and an inventory of its property. The company shall notify the creditors within 10 days from the date of making the resolution to reduce the registered capital, and make a public announcement in the newspaper within 30 days. The creditor shall have the right to require the company to pay off its debts or provide corresponding guarantee within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if the notice is not received. (II) judicial interpretation 1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases (2011) 21. Disputes related to the company 281. Company capital reduction dispute 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 3 The domicile of a citizen refers to the place where the citizen's household registration is located, and the domicile of a legal person or other organization refers to the place where the main office of the legal person or other organization is located. If the location of the principal office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization shall be the place of domicile. Article 22 Jurisdiction shall be determined in accordance with the provisions of Article 26 of the Civil Procedure Law for lawsuits arising from disputes over records in the register of shareholders, requests for changes in company registration, shareholders' right to know, company resolutions, company mergers, company division, company capital reduction, company capital increase, etc. 3. (III) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. Article 14 Where a shareholder withdraws his capital contribution, the people's court shall support the request of the company or other shareholders to return the principal and interest of the capital contribution to the company, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution shall bear joint and several liability for this. The people's court shall support the shareholders who request the withdrawal of capital contributions to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions shall bear joint and several liability for this. The people's court shall not support the shareholders who have already assumed the above-mentioned responsibilities and other creditors make the same request. Minutes of the (III) National Civil and Commercial Trial Conference Notice of the Supreme People's Court on Issuing the Minutes of the National Courts Conference on Civil and Commercial Trials (Law [2019] No. 254) 2. on the trial of company dispute cases (I) on the validity and performance of the "gambling agreement". 5. ["Gambling" with the target company] If the "gambling agreement" concluded between the investor and the target company does not have any statutory reasons for invalidity, if the target company claims that the "gambling agreement" is invalid only on the grounds of the existence of equity repurchase or monetary compensation agreement, the people's court will not support it, but the investor claims that it is actually performed, the people's court shall examine whether it complies with the mandatory provisions of the Company Law on "shareholders shall not withdraw their capital contributions" and share repurchase, and whether the judgment supports their claims. If the investor requests the target company to buy back its shares, the people's court shall examine it in accordance with the mandatory provisions of Article 35 of the Company Law on "shareholders may not withdraw their capital contributions" or Article 142 on share repurchase. After examination, if the target company has not completed the capital reduction procedure, the people's court shall reject its claim. If the investor requests the target company to assume the obligation of monetary compensation, the people's court shall conduct a review in accordance with the mandatory provisions of Article 35 of the Company Law on "shareholders may not withdraw their capital contributions" and Article 166 on profit distribution. If, after examination, the target company has no profit or is not profitable enough to compensate the investor, the people's court shall reject or partially support its claim. In the future, when the target company has profits, the investor may also file a separate lawsuit based on that fact. Provisions issued by regional courts in (IV) 1. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues Concerning the Trial of Cases of Company Disputes (2008 No. 4) On the Dispute of 2. Shareholder's Capital Contribution 12. When the company is established, if the promoter falsely contributes capital, the other promoters shall bear joint and several liability for the payment. This liability is not waived by the transfer of equity by other promoters. If a shareholder withdraws his capital contribution, the shareholders, directors, managers and other senior management personnel who help to withdraw their capital contribution shall be jointly and severally liable. When the company increases its capital, if the shareholders make false capital contributions, the responsible shareholders, directors, managers and other senior managers shall bear joint and several liability. After the responsible person stipulated in the above three paragraphs has assumed responsibility, he may recover the compensation from the promoter or shareholder of the defective capital contribution, or he may demand from other jointly and severally responsible persons to pay off his share. 18. If the company fails to notify the creditors in accordance with the provisions of Article 178 of the Company Law, or fails to pay off the debts or provide corresponding guarantees in accordance with the requirements of the creditors, the company's creditors may require the shareholders to recover their respective capital contributions. Within the scope of the company's debts before the capital reduction, it shall jointly and severally bear supplementary liability for compensation. 2. Guidelines for the Judgment of the Second Civil Division of the Higher People's Court of Guangxi Zhuang Autonomous Region on Several Issues Concerning the Trial of Company Dispute Cases (Guigao Fa Min II [2020] No. 19) The effectiveness of the capital system of 1. companies. 2. [Capital Maintenance in Shareholder Withdrawal] Shareholder withdrawal involves the withdrawal of capital contribution and further the reduction of the company's capital. Therefore, based on the protection of creditors' interests, the company's capital system places certain restrictions on shareholder withdrawal:(1) Shareholders agree to withdraw their shares through the resolution of the company's shareholders' meeting, or withdraw their shares through claiming the right of repurchase of dissenting shareholders (Article 74 of the Company Law), the interests of creditors of the company shall be protected through legal capital reduction procedures (Article 177 of the Company Law);(2) If shareholders withdraw their shares through dissolution of the company, they shall protect the interests of creditors of the company through legal liquidation procedures (Article 183 of the Company Law);(3) Shareholders withdraw from the company by transferring all their shares, which does not involve the reduction of the company's capital and is not subject to the company's capital control, however, if the transferring shareholder transfers the equity without making a full capital contribution, he still bears the obligation to make up the capital contribution (Article 18 of Interpretation III of the Company Law). 2. the legal effect of the articles of association Review of the validity of 9. gambling agreements. 45. [Nature of Repurchase Clause] If the gambling agreement mode is adopted in the equity transfer transaction, the repurchase clause is usually set to withdraw the investment, I .e. to recover the "loan" or "financing fund". The people's court shall conduct a review at the level of the company's capital system, I .e. whether the repurchase complies with the statutory capital reduction procedure, so as to ensure that the interests of all parties behind the withdrawal of capital contribution or recovery of "financing fund" are fairly protected. However, if the investor requests the target company to repurchase its shares and at the same time appeals to the target company to perform the capital reduction procedure, the people's court will not support it because the company's capital reduction procedure is a matter of corporate autonomy and the judiciary will not intervene. Overview of 2. Litigation Plaintiff: Creditor Defendant: All or part of the shareholders (according to: Articles 13 and 14 of the (III) on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of China by the Supreme People's Court) Jurisdiction: under the jurisdiction of the people's court of the company's domicile (based on Article 26 of the Civil Procedure Law and Article 22 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law) Litigation request: 1. Request to order the defendant x x x to bear supplementary liability for the part of x x company's debt that cannot be paid off by the plaintiff within the scope of the capital reduction of x x yuan; 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. 3. Disputes and Judgment Rules (I) Controversial Question 1: Is the nature of capital reduction in violation of legal procedures equivalent to the withdrawal of capital contributions? Are shareholders liable for the withdrawal of capital contributions? The judgment case of Shanghai Delixi Group Co., Ltd. v. Jiangsu Boenshitong High-tech Co., Ltd., Feng Jun and Shanghai Boenshitong Optics Co., Ltd. in the 11th issue of the Bulletin of the Supreme People's Court in 2017 equated the nature of illegal capital reduction with the withdrawal of capital contribution. The Supreme Court heard the dispute over the loan contract between Anhui Xinji Coal and Electricity (Group) Co., Ltd., Rudong County Rural Credit Cooperative Association and Shanghai Hengde Zhidi Co., Ltd. [(2010) Min Ti Zi No. 79], the Supreme Court clearly put forward this point of view for the first time. There are different views that illegal capital reduction is equivalent to the nature of capital withdrawal, which will inappropriately expand the scope of liability, and will extend the scope of liability to other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital, and will improperly amplify the "harmfulness" of illegal capital reduction, Because in civil cases, it may involve the crime of withdrawing capital in criminal cases. Case 1: Shanghai Delixi Group Co., Ltd. v. Jiangsu Boen Shitong High-tech Co., Ltd., Feng Jun and Shanghai Boen Shitong Optics Co., Ltd. Case of Dispute over Purchase and Sales Contracts [Supreme Court Gazette Case 2016 Hu 02 Min Zhong No. 10330]] The court held that the shareholders of Jiangsu Boen Company formed resolutions of the shareholders' meeting on August 10 and September 27, 2012 on the reduction of the company's capital. At this time, the creditor's rights of Delixi Company had already been formed. As shareholders of Jiangsu Boen Company, Shanghai Boen Company and Feng Jun should know clearly. However, in this case, Shanghai Boen Company and Feng Jun still agreed to Feng Jun's request for capital reduction through the resolution of the shareholders' meeting, and did not directly notify Delixi Company, which not only damaged the solvency of Jiangsu Boen Company, but also infringed on the claims of Delixi Company, and should bear corresponding legal liability for the debts of Jiangsu Boen Company. When the company fails to notify known creditors of a capital reduction, the situation is not essentially different from the substance of the shareholder's illegal withdrawal of capital and the effect on the damage to the creditors' interests. Therefore, although our law does not specify the liability of shareholders in the event of damage to the interests of creditors as a result of a company's failure to comply with the statutory procedures for capital reduction, it can be determined by reference to the relevant principles and provisions of the company law. Due to the defects in the capital reduction behavior of Jiangsu Boen Company, the company's claims formed before the capital reduction cannot be paid off after the capital reduction, Shanghai Boen Company and Feng Jun, as shareholders of Jiangsu Boen Company, shall bear supplementary liability for the non-payment of the debts of Jiangsu Boen Company within the scope of the amount of the company's capital reduction. Case 2: Dispute over Loan Contract between Anhui Xinji Coal and Electricity (Group) Co., Ltd. and Rudong County Rural Credit Cooperative Association and Shanghai Hengde Real Estate Co., Ltd. [(Supreme People's Court (2010) Min ti Zi No. 79)]] The court held that: therefore, the withdrawal of the coal power company from Hengde company violated the legal procedure of capital reduction, which should be recognized as the name of capital reduction, which is actually the nature of capital withdrawal, and the coal power company should bear joint and several liability for the guaranteed debts of Hengde company within the scope of its capital contribution of 25 million yuan. Case 3: Xiangtan Dahan Iron and Steel Trading Co., Ltd. and Hu Zhi and Liang Shuai Company's Capital Reduction Dispute heard by Xiangtan Intermediate People's Court [(2014) Tan Zhongmin Erchu Zi No. 20]] The court held that: Jinrong Company did not notify the known creditor Dahan Company when reducing its capital, resulting in Dahan Company not knowing about its capital reduction, nor could it ask it to pay off its debts or provide guarantees in advance, the capital reduction procedure was flawed and had no legal effect on Dahan Company. Although the company law stipulates that the notice obligor when the company is reducing its capital is the company, the company's capital reduction is the result of the resolution of the shareholders' meeting, and whether and how to reduce the capital depends entirely on the will of the shareholders. As the shareholders of Jinrong Company, Hu Zhi and Liang Shuai still reduced the company's registered capital through the resolution of the shareholders' meeting even though they knew that the company's external liabilities had not been paid off. Subjectively, there was a fault, which objectively damaged the solvency of Jinrong Company and endangered the realization of the creditor's rights of Dahan Company. In essence, it caused the same consequences as the withdrawal of capital contribution, therefore, we should refer to the second paragraph of Article 14 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Law". The people's court shall support the shareholders who request the company's creditors to withdraw their capital contributions to bear supplementary compensation for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in withdrawing capital contributions shall bear joint and several liability for this; the shareholders who have withdrawn their capital contributions have already assumed the above-mentioned responsibilities. If other creditors make the same request, the people's court will not support the "treatment, I .e. the defendants Hu Zhi and Liang Shuai shall, within the scope of capital reduction, bear supplementary compensation liability for the payment obligations of Jin Rong Company as determined in the civil mediation document No. 43 of Tanzhong Min Er Chu Zi of our hospital (2012). Case 4: Cai Ruixian et al. v. Shanghai Yongdian Garment Technology Co., Ltd. Shareholder's Capital Contribution Dispute [(2014) Hu Yi Zhong Min Si (Shang) Zhong Zi No. 462]] The court held that, according to the provisions of the current company law, shareholders have the obligation to effectively perform their capital contributions in accordance with the articles of association of the company, and at the same time have the responsibility to maintain the company's registered capital. The company's capital reduction should be subject to legal procedures in accordance with the law to ensure that the company's creditors have the opportunity to make corresponding decisions before the company's assets are reduced.
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1. issues raised In order to improve the subsidiary value and attractiveness of the development of real estate, more and more developers choose to take "XX school district housing" and "gathering XX school" as the highlights of house sales promotion. However, the general commercial housing is mostly short-term housing, and the supporting construction is not synchronized with the delivery of housing, there is the possibility that the school district will fail or be inconsistent with the publicity. Article 473, paragraph 2, of the Civil Code clearly states that "commercial advertisements and publicity that meet the conditions for an offer constitute an offer." Does the developer's behavior of publicizing the school district housing constitute an offer? Does the publicized school have any influence on determining whether the developer constitutes a breach of contract within the scope of the commercial housing development plan? How should the developer and consumers avoid the possible risks brought by the school district housing publicity? 2.-related views and cases, refereeing views (I) the developer's publicity on the school district housing has a significant impact on whether the buyer enters into a commercial housing sales contract with him. The publicity color page should be regarded as the content of the contract and is binding on both parties to the contract. The house involved in the case is not in the school district, which is inconsistent with the contract agreement, resulting in the buyer's contract purpose cannot be realized, and the buyer can request to terminate the contract. Case: Cheng Juan and Chen Baoyin's Dispute over Housing Sales Contract (Heze Intermediate People's Court (2020) Lu 17 Civil Judgment No. 1331) The court held that the focus of the dispute in this case is whether the contract for the sale of the house involved should be terminated. First of all, Article 3 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" stipulates: "Commercial housing sales advertisements and promotional materials are invitations to offer, but the seller's housing and related within the scope of the commercial housing development plan If the explanation and promise made by the facility are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer. Even if the statement and promise are not included in the contract for the sale of commercial housing, they shall be regarded as the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." The publicity color page of the appellant Hejian Real Estate Company clearly indicates the words "live in Hejian Zijun City and study in Boyu Middle School". Dong Bowen, the daughter of the appellant Cheng Juan, is in high school. Such publicity by the appellant Hejian Real Estate Company has a significant impact on whether Cheng Juan and Chen Baoyin enter into a commercial housing sales contract with them. Therefore, the publicity color page should be regarded as the content of the contract and binding on both parties to the contract. At present, the house involved in the case is not in the enrollment area of Boyu Middle School in Cao County, which is inconsistent with the contract agreement. As a result, the contract purpose of Cheng Juan and Chen Baoyin cannot be realized. Therefore, the appellants Cheng Juan and Chen Baoyin's request to terminate the commercial housing sales contract involved in the case is based on the law, and the court supports it. If the description and promise made by the (II) developer on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer, even if it is not included in the commercial housing sales contract, It should also be regarded as the content of the contract. Case: Wang Xinxin, Liu Shangneng and Suzhou New High Land Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Suzhou huqiu district People's Court (2018) Su 0505 Minchu No. 3012 Civil Judgment) The court held that:... the defendant repeatedly mentioned "double school district", "the third middle school of the new district and the experimental middle school of science and technology city", "double school district guarantee", "easy to choose a house but difficult to choose a school", "double school district, experimental middle school" and other contents in the pavement and billboards, website publicity materials and WeChat promotion platform of Hongjinwan real estate, according to the above sales advertisements and publicity materials, ordinary buyers can naturally draw the conclusion that the house involved in the case belongs to the school district of Science and Technology City Experimental Middle School (Science and Technology City Branch of New District Experimental Middle School) and their children can study in the school, which will have an important impact on whether to buy the house involved in the case and the determination of the price of the house involved. Therefore, it should be regarded as an offer, even if both parties fail to include the defendant's publicity and promise about the school district in the Commercial Housing Purchase Contract. However, this content shall also be an integral part of the contract and both parties shall be bound by it. According to the relevant documents of the education department of Suzhou City and the High-tech Zone on the division of the school district, the house involved does not belong to the school district of the New District Experimental Middle School Science and Technology City Branch, but belongs to the school district of the New District No. 3 Middle School, so the defendant violated the contract and constituted a breach of contract., Should bear the liability for breach of contract. Real estate belongs to the family's large property, its primary function is to live. Buyers who buy houses in order to choose school districts are different from ordinary buyers. They have reason to believe that they have a deeper understanding of local school district policies, and they should be more cautious than ordinary buyers. Therefore, the choice of the school district is not the contractual purpose of the contract for the sale of the house in this case, and the plaintiff made the decision to purchase the house involved due to negligence and recklessness, and he himself was quite at fault. In view of the fact that the plaintiff did not provide any evidence to prove the price difference between the house involved in the case and the surrounding non-key school district houses in the same location and the same quality at the time of purchase, and the appraisal application for similar cases in the same district was also returned due to the incomparable sample, there is no evidence to prove the loss of the house price difference claimed by the plaintiff. However, the defendant's improper publicity constituted a breach of contract, which caused the dispute in this case. The court considered the fault degree of both parties and the performance of the contract, and decided to compensate the plaintiff for the loss of 10000 yuan. As for the agreement between the two parties in annex 5 to the contract: article 2 of the supplementary agreement to the contract, the court believes that the above agreement, as a standard clause provided by the seller, does not formally prompt and explain the plaintiff in a way sufficient to attract the attention of the buyer. the content excludes the buyer's main rights and exempts itself from its own obligations, thus it is invalid. (III) the school is outside the scope of the housing development plan involved in the case, the supplementary agreement clearly stipulates that the promotion of commercial housing does not constitute a contract offer, the buyer fully understands the terms of the contract when the contract is signed, and the developer does not constitute a breach of contract. Case: Li Shougang's Dispute over Commercial Housing Sales Contract with Jinan Yuantai Real Estate Co., Ltd. and Shandong Beida Resources Real Estate Co., Ltd. (Jinan Intermediate People's Court (2017) Lu 01 Min Zhong No. 5484 Civil Judgment) The court held that the "Notice" issued by Peking University Resources Company... was not included in the commercial housing sales contract, and the seventh paragraph of Article 17 of the contract stipulates that "the sand table, model, model room, publicity materials and publicity advertisements displayed by the seller are only for promotion indication, and do not constitute any offer. All agreements in this contract shall prevail, and the delivery entity shall prevail if there is no agreement in this contract", therefore, the contents of the above notice cannot be regarded as the contents of the contract. Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Contracts for the Sale of Commercial Housing stipulates that ...... the "housing and related facilities" referred to in this provision are "within the scope of the planning for the development of commercial housing", while the school referred to in the Notice does not fall within the scope of the planning for the development of the housing involved, so the provisions of the judicial interpretation cannot be applied to this case. In the case that the content of the school district housing in the "Notice" was not included in the commercial housing sales contract, Li Shougang claimed the relevant liability for breach of contract based on the content. There was no basis in the law, and the first instance did not support it, which was not improper. (IV) the school has changed due to planning adjustment, it is still equipped with corresponding educational resources. The occurrence of this fact is related to the corresponding planning adjustment of the local government. The developer's publicity about the school district housing is not false publicity and does not constitute a breach of contract. Case: Wu Kouzhu, Miao Yamin and Ocean Real Estate Zhenjiang Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Higher People's Court (2017) Su Minshen No. 957 Civil Judgment) The court held that there was a primary school originally planned in the third phase plot of Sino-Ocean Company, but according to the planning adjustment of Zhenjiang City Planning Committee, it was decided that the primary school and the junior high school reserved in the resettlement house on the east side of the third phase plot of Sino-Ocean Company should be merged into a nine-year consistent school. ... Even if it is confirmed that the introduction of the propaganda of Runzhou Experimental Primary School by Ocean Company is indeed an offer, the original primary school is changed to a nine-year consistent school due to planning adjustment, and the teachers are arranged by the Education Bureau of Runzhou District, Zhenjiang Experimental School and Runzhou Experimental Primary School as a whole, and they are still equipped with corresponding educational resources, and the school actually built is changed from a primary school to a nine-year consistent school, which is related to a consistent school. Therefore, the 1. Court of Second Instance did not support Wu Kaozhu and Miao Yamin's claim that the Ocean Company "introduced Runzhou Experimental Primary School" as false propaganda, which constituted a breach of contract and also constituted fraud. 3. Summary Article 472 of the Civil Code provides for the definition and constituent elements of an offer, and article 473, paragraph 2, provides that "if the content of commercial advertisements and publicity meets the conditions of an offer, it constitutes an offer." Article 3 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of disputes over commercial housing sales contracts stipulates that "the sales advertisements and publicity materials of commercial housing are invitation to offer, but the seller's explanation and promise on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, It constitutes an offer. The statement and promise, even if it is not included in the contract for the sale of commercial housing, shall be the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." Whether the developer's behavior of publicizing the school district housing constitutes an offer is the key to judging whether the developer is in breach of contract and whether the contract for the sale of commercial housing can be terminated. One point of view is that commercial housing and related facilities generally include commercial housing itself and the supporting infrastructure and public buildings of commercial housing. Schools are not within the scope of commercial housing development planning. Supporting schools are decided by the local government's corresponding planning and adjustment, and are not based on the will of the developer. The relevant commercial housing sales contract also clearly stipulates that the content of the contract shall prevail. There is no guarantee about the school in the contract. The publicity of the school district housing cannot constitute an offer, there is no possibility of default by the developer; however, if the school is indeed within the scope of the commercial housing development plan, the school advertised by the developer does not exist or is different from the school actually attended, there is a risk of being identified as an offer and constituting a default. Another point of view is that there are transportation, schools, hospitals and other supporting facilities around the house, and the school should belong to the relevant facilities within the scope of the commercial housing development plan. The promise made by the publicity is clear and definite, and the publicity of xx school has an important impact on whether the buyers conclude the commercial housing sales contract and the determination of the housing price. The publicity of the school district housing constitutes an offer, and the failure or change of the school district leads to the developer to breach of contract, should bear the liability for compensation, the circumstances are serious so that the buyer can not achieve the purpose of school may have the risk of termination of the contract. In practice, local courts have slightly different criteria for judging whether the developer's publicity of the school district house constitutes an offer, which needs to be judged in combination with the actual situation of the case. Even if most courts determine that the developer's publicity of the school district house constitutes an offer, the inconsistency between the school and the publicity when the house is actually delivered constitutes a breach of contract. In most cases, the breach of contract has not reached the level of termination of the contract, but the developer should bear certain liability. 4. Risk Alert Our lawyers believe that developers should raise their risk awareness when promoting commercial housing, carefully carry out advertising activities, avoid misleading publicity, and clearly mark the behavior as an invitation to offer in publicity materials such as leaflets and advertising walls, and the actual commercial housing sales contract signed by both parties shall prevail. In addition, because the commercial housing sales contract is a standard contract provided by the developer, there is a risk that individual clauses will be recognized as standard clauses, the important terms can be prompted and explained in a way that is sufficient to attract the attention of the buyer, and the buyer can be fully explained when signing the contract, and it is clear that "if the agreement in the commercial housing sales contract is inconsistent with the advertising agreement, the agreement in the sales contract shall prevail". As an important asset of the family, consumers should exercise prudent care when buying a house, have an in-depth understanding of the local school district policy, and avoid taking losses due to negligence and rash decisions to buy a house.
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Viewpoint | Analysis of the reliability of patent protection
It is generally believed that the value of patent rights includes legal value, technical value and economic value. The reliability of patent protection is an important index to evaluate and analyze the legal value of patent. The so-called reliability of patent protection refers to the reliability of the patentee or patent user in the face of the suspected infringing object, using the current infringement determination rules to determine whether the suspected infringing object falls into the scope of specific patent protection. Through the analysis of the stability of the specific patent itself and the restriction degree of the following patent, the probability of a specific patent winning a patent infringement lawsuit is judged. This paper will start with the writing quality of the claims and instructions to analyze the reliability of patent protection, so it is only applicable to inventions or utility models, not design. The author thinks that the reliability of patent protection can be analyzed comprehensively from the five dimensions of patent category, patent text quality, restriction degree of implementation, restriction degree of following patent and stability, so as to draw a more objective expectation judgment on whether infringement is established in patent infringement litigation. 1. patent category According to China's current patent examination and authorization rules, utility model patents can be authorized only through formal examination, while invention patents can only be authorized after passing formal examination and passing substantive examination. Therefore, the stability of a particular patent can be judged by the type of patent and the nature of the invention, and it is clear that the stability of the invention patent is higher than that of the utility model patent. In addition, starting with the layout of the claims, the independent claim is a product claim and has more subordinate claims, which is better than only one product claim, and then better than only the method claim. 2. patent text quality The consideration of the quality of the patent text should include at least the following three aspects: first, the writing quality of the independent claims; second, the layout and writing quality of the dependent claims; third, the clarity and completeness of the patent specification and the support for the claims. An ideal authorized patent should meet all the following conditions:(1) the patent specification provides a clear and complete description of the invention and creation, and the embodiments are specific, to the extent that can be realized by those skilled in the art in combination with the accompanying drawings;(2) The independent claims are supported by the specification, with clear expressions and appropriate generalizations;(3) The subordinate claims are reasonably arranged and have a considerable number of subordinate claims;(4) There is no case where the amendment provided for in Article 33 of the Patent Law exceeds the scope. Obviously, if a patent deviates more and more negatively from the above conditions, the text quality will be worse. Constraints on 3. implementation The purpose of this indicator is to analyze whether a specific patented technical solution falls within the scope of protection of the prior patent, and if so, the implementation of the specific patent requires the permission of the prior patentee, otherwise the prior patent will be infringed. In the specific judgment method, after searching, compare a particular patent with a closest prior patent, determine the degree of overlap with the prior patent independent claim, and determine whether the two constitute equivalent if there is a difference in technical characteristics. Obviously, if there is a substantial difference between a particular patent and the nearest prior patent, and the technical characteristics of the independent claim are significantly different, then the particular patent can be implemented independently and is not subject to the surviving patent, which is the best. If a particular patent is subject to a prior patent, but the prior patent clearly has a flaw that has been declared invalid or if the particular patent has room to avoid the prior patent, it is an intermediate result. If a particular patent falls within the scope of prior patent protection and lacks substantive characteristics relative to the prior patent, it is a poor result. 4. degree of restriction on following patents This indicator is used to determine the degree of restriction of a particular patent on the implementation of a subsequent follow-up improvement technology, I .e., the probability of a subsequent follow-up technology avoiding a particular patent infringement. In the specific method, compare the specific patent with the following patent, and analyze whether the specific patent can effectively restrict the independent implementation of the following patent relative to the specific patent. Obviously, it is best if the follow-up patent is not retrieved, or if the follow-up patent falls unquestionably within the scope of protection of a particular patent. If, although there are different technical characteristics between the following patent and the specific patent, there is no substantial difference, that is, the following patent has a high probability of falling into the scope of protection of the specific patent, is also a better result. If the follow-up patent does not fall within the scope of protection of the particular patent, I .e. the follow-up patent can be implemented freely without the restriction of the particular patent, then the value of the particular patent will be diminished. 5. stability This indicator is used to determine the possibility of invalidation of a particular patent. Compare the specific patent with the existing technology before the filing date, and determine whether the specific patent has the risk of being declared invalid as stipulated in Article 65 of the Regulations of the Patent Law. Under this index system, the stability of patents with more distinguishing technical features is higher than that of patents with less distinguishing technical features. If a particular patent independent claim has more distinguishing technical features that are materially different from the combination of more than one prior art, then the probability of that particular patent being declared invalid is small and optimal. If a particular patent independent claim has few or no distinguishing technical features that differ materially from a combination of prior art within 3 articles, then the probability that the particular patent will be invalidated is high and is a poor result. If a particular patent independent claim has several distinguishing technical features compared with the combination of 3 or so existing technologies, but it is doubtful whether the distinguishing technical feature is a replacement of customary technical means, then the probability of the particular patent being declared invalid is in the middle. To sum up, according to the relevant provisions of China's Patent Law, Detailed Rules for the Implementation of the Patent Law and Patent Examination Guidelines, the author takes the quality of patent text as the main line, combines the characteristics of invention or utility model patents, and discusses the reliability of patent protection from five aspects: patent category, patent text quality, restriction degree of patent implementation, restriction degree of patent to follow patent, and stability of patent, the legal restriction effect of specific patented technology on the related technology in the same technical field is given objectively, and the result probability of infringement litigation is expected. It is generally believed that the value of patent rights includes legal value, technical value and economic value. The reliability of patent protection is an important index to evaluate and analyze the legal value of patent. The so-called reliability of patent protection refers to the reliability of the patentee or patent user in the face of the suspected infringing object, using the current infringement determination rules to determine whether the suspected infringing object falls into the scope of specific patent protection. Through the analysis of the stability of the specific patent itself and the restriction degree of the following patent, the probability of a specific patent winning a patent infringement lawsuit is judged. This paper will start with the writing quality of the claims and instructions to analyze the reliability of patent protection, so it is only applicable to inventions or utility models, not design. The author thinks that the reliability of patent protection can be analyzed comprehensively from the five dimensions of patent category, patent text quality, restriction degree of implementation, restriction degree of following patent and stability, so as to draw a more objective expectation judgment on whether infringement is established in patent infringement litigation. 1. patent category According to China's current patent examination and authorization rules, utility model patents can be authorized only through formal examination, while invention patents can only be authorized after passing formal examination and passing substantive examination. Therefore, the stability of a particular patent can be judged by the type of patent and the nature of the invention, and it is clear that the stability of the invention patent is higher than that of the utility model patent. In addition, starting with the layout of the claims, the independent claim is a product claim and has more subordinate claims, which is better than only one product claim, and then better than only the method claim. 2. patent text quality The consideration of the quality of the patent text should include at least the following three aspects: first, the writing quality of the independent claims; second, the layout and writing quality of the dependent claims; third, the clarity and completeness of the patent specification and the support for the claims. An ideal authorized patent should meet all the following conditions:(1) the patent specification provides a clear and complete description of the invention and creation, and the embodiments are specific, to the extent that can be realized by those skilled in the art in combination with the accompanying drawings;(2) The independent claims are supported by the specification, with clear expressions and appropriate generalizations;(3) The subordinate claims are reasonably arranged and have a considerable number of subordinate claims;(4) There is no case where the amendment provided for in Article 33 of the Patent Law exceeds the scope. Obviously, if a patent deviates more and more negatively from the above conditions, the text quality will be worse. Constraints on 3. implementation The purpose of this indicator is to analyze whether a specific patented technical solution falls within the scope of protection of the prior patent, and if so, the implementation of the specific patent requires the permission of the prior patentee, otherwise the prior patent will be infringed. In the specific judgment method, after searching, compare a particular patent with a closest prior patent, determine the degree of overlap with the prior patent independent claim, and determine whether the two constitute equivalent if there is a difference in technical characteristics. Obviously, if there is a substantial difference between a particular patent and the nearest prior patent, and the technical characteristics of the independent claim are significantly different, then the particular patent can be implemented independently and is not subject to the surviving patent, which is the best. If a particular patent is subject to a prior patent, but the prior patent clearly has a flaw that has been declared invalid or if the particular patent has room to avoid the prior patent, it is an intermediate result. If a particular patent falls within the scope of prior patent protection and lacks substantive characteristics relative to the prior patent, it is a poor result. 4. degree of restriction on following patents This indicator is used to determine the degree of restriction of a particular patent on the implementation of a subsequent follow-up improvement technology, I .e., the probability of a subsequent follow-up technology avoiding a particular patent infringement. In the specific method, compare the specific patent with the following patent, and analyze whether the specific patent can effectively restrict the independent implementation of the following patent relative to the specific patent. Obviously, it is best if the follow-up patent is not retrieved, or if the follow-up patent falls unquestionably within the scope of protection of a particular patent. If, although there are different technical characteristics between the following patent and the specific patent, there is no substantial difference, that is, the following patent has a high probability of falling into the scope of protection of the specific patent, is also a better result. If the follow-up patent does not fall within the scope of protection of the particular patent, I .e. the follow-up patent can be implemented freely without the restriction of the particular patent, then the value of the particular patent will be diminished. 5. stability This indicator is used to determine the possibility of invalidation of a particular patent. Compare the specific patent with the existing technology before the filing date, and determine whether the specific patent has the risk of being declared invalid as stipulated in Article 65 of the Regulations of the Patent Law. Under this index system, the stability of patents with more distinguishing technical features is higher than that of patents with less distinguishing technical features. If a particular patent independent claim has more distinguishing technical features that are materially different from the combination of more than one prior art, then the probability of that particular patent being declared invalid is small and optimal. If a particular patent independent claim has few or no distinguishing technical features that differ materially from a combination of prior art within 3 articles, then the probability that the particular patent will be invalidated is high and is a poor result. If a particular patent independent claim has several distinguishing technical features compared with the combination of 3 or so existing technologies, but it is doubtful whether the distinguishing technical feature is a replacement of customary technical means, then the probability of the particular patent being declared invalid is in the middle. To sum up, according to the relevant provisions of China's Patent Law, Detailed Rules for the Implementation of the Patent Law and Patent Examination Guidelines, the author takes the quality of patent text as the main line, combines the characteristics of invention or utility model patents, and discusses the reliability of patent protection from five aspects: patent category, patent text quality, restriction degree of patent implementation, restriction degree of patent to follow patent, and stability of patent, the legal restriction effect of specific patented technology on the related technology in the same technical field is given objectively, and the result probability of infringement litigation is expected.
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The revocation of the arbitral award needs to meet the statutory requirements, and this paper focuses on the analysis of whether the arbitral tribunal's failure to make an arbitral award within the statutory time limit constitutes a violation of the statutory procedure in the arbitral procedure and leads to the revocation of the arbitral award. 1. [link to the law]] the People's Republic of China Arbitration Act Article 58 If the parties provide evidence to prove that the award has one of the following circumstances, they may apply to the intermediate people's court where the arbitration commission is located to cancel the award. (I) there is no arbitration agreement; The matters awarded by the (II) do not fall within the scope of the arbitration agreement or the arbitration commission does not have the power to arbitrate; (III) the composition of the arbitration tribunal or the arbitration procedure violates the legal procedure; (IV) the evidence on which the award is based is falsified; (V) the opposing party conceals evidence sufficient to affect a just decision; (VI) arbitrators have solicited or accepted bribes, practiced favoritism, or perverted the law in adjudicating the case. If the people's court, after forming a collegial panel to examine and verify the award, has one of the circumstances specified in the preceding paragraph, it shall rule to cancel the award. If the people's court determines that the award is contrary to the public interest, it shall rule to cancel it. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Arbitration Law Article 20 The term "violation of legal procedures" as stipulated in Article 58 of the Arbitration Law refers to the circumstances in which the violation of the arbitration procedures stipulated in the Arbitration Law and the arbitration rules chosen by the parties may affect the correct award of the case. 2. Typical Case] Case 1: The case of Company A and Company B applying for setting aside the arbitral award. On November 11, 2019, Chen and Company B filed an application for arbitration in this case to the Beijing Arbitration Commission. The respondent was Company A. After the Beijing Arbitration Commission formally accepted the case on November 18, 2019, it was held on December 31, 2019. Form an arbitration tribunal. In accordance with the arbitral award made on 8 March 2021, the arbitral tribunal of summary proceedings shall, in accordance with the provisions of the Arbitration Rules, make an award within 75 days from the date of the formation of the tribunal. If there are special circumstances that require an extension, the sole arbitrator shall submit it to the Secretary-General for approval, and the extension may be appropriately extended. Company A believes that the arbitration award made by the Arbitration Commission on March 8, 2021 exceeds the above-mentioned time limit, and requests the court to revoke the (2021) Beijing Arbitration Zi No. XXX award made by the Arbitration Commission in accordance with the law. The court held that this case was a case in which the parties applied for the revocation of the domestic arbitration award and should be reviewed in accordance with Article 58 of the the People's Republic of China Arbitration Law. Article 58 of the the People's Republic of China Arbitration Law stipulates that if the parties provide evidence to prove that the award has one of the following circumstances, they may apply to the intermediate people's court where the arbitration commission is located for cancellation of the award: (1) there is no arbitration agreement; the matters on which the award is (II) do not fall within the scope of the arbitration agreement or the arbitration commission has no power to arbitrate; the composition of the arbitration tribunal or the arbitration procedure violates legal procedure; the evidence on which the (IV) award is based is forged; the other party to the (V) has concealed evidence sufficient to affect the fairness of the award; the (VI) arbitrator has solicited and accepted bribes, practiced favoritism, or perverted the law in the arbitration of the case. If the people's court, after forming a collegial panel to examine and verify the award, has one of the circumstances specified in the preceding paragraph, it shall rule to cancel the award. If the people's court determines that the award is contrary to the public interest, it shall rule to cancel it. The above-mentioned provisions are the statutory reasons for the people's court to revoke the domestic arbitral award. With regard to Company A's claim that the arbitration procedure violates the legal procedure, the Court holds that the "violation of legal procedure" stipulated in Article 58 of the the People's Republic of China Arbitration Law refers to the situation that the violation of the arbitration procedure stipulated in the Arbitration Law and the arbitration rules chosen by the parties may affect the correct award of the case, and the violation of legal procedure shall seriously affect the procedural rights of the parties and substantially affect the correct award of the case. With regard to the fact that the award involved in the case was heard by a sole arbitrator, the Beijing Arbitration Commission made a clear statement on the matter. In addition, in accordance with Article 54, paragraph (I), and Article 55, paragraph (I), of the Arbitration Rules, the arbitration involved in the case was filed on the basis of the parties' arbitration request, which met the conditions for the application of the summary procedure in the Arbitration Rules, and it was not improper for the sole arbitrator to hear the case. Article 58 of the Arbitration Rules stipulates that if the amount of the dispute in the case exceeds 5 million yuan due to the change of the arbitration request, the summary procedure shall not be affected. Regarding the extension of the trial limit of the arbitration involved in the case, the case was applied by the sole arbitrator and approved by the Secretary-General of the Beijing Arbitration Commission to extend the trial limit, which does not violate the provisions of the Arbitration Rules. In addition, the arbitration tribunal heard all the arbitration requests of Chen Mou and Company B and the defense of Company A, investigated the relevant facts of the case, and organized both parties to provide evidence and cross-examine the evidence. The two parties debated around the focus of the dispute. Before the end of the trial, the two parties issued their final statements. No company A's rights were infringed. Therefore, the court did not support company A's claim. Case 2: The case of Xu and Chen's application to set aside the special procedure of the arbitral award. On September 23, 2009, Xu filed an arbitration application with the Yangzhou Arbitration Commission in accordance with the arbitration clause agreed in the contract, requesting the cancellation of the equity transfer agreement signed on October 16, 2008. The Yangzhou Arbitration Commission accepted Xu's arbitration request on September 24, 2009, and served relevant materials to the respondent Chen. On 26 November 2009, the Tribunal held its first hearing. On 19 and 20 December 2009, the Tribunal held its second session. On January 30, 2010, Xu filed an application for withdrawal from the chief arbitrator Xing. On February 8, 2010, Yangzhou Arbitration Commission made (2009) decision No. 668-1, deciding to reject Xu's application for chief arbitrator Xing to withdraw. On August 23, 2010, Yangzhou Arbitration Commission delivered the decision to Xu and Chen. … On July 5, 2016, Yangzhou Arbitration Commission made Award (2009) Yang Arbitration Zi No. XX, which was served on Xu and Chen on July 27, 2016. Xu later considered that the arbitral award had exceeded the statutory time limit and requested that it be set aside. Court view: on the question of whether the arbitration proceedings are illegal. Article 46 of the Yangzhou Arbitration Rules stipulates: "The arbitral tribunal shall make an arbitral award within four months after the formation of the arbitral tribunal. If there are special circumstances that require an extension, the chief arbitrator or the sole arbitrator may report to the chairman of the arbitration commission for approval, and the extension may be appropriately extended." According to this provision, four months is the time limit that the arbitral tribunal should abide by. Even if it needs to be extended, it should be appropriately extended, and the extended time limit should be specified when handling the application and approval procedures. The arbitral award involved in the case took 6 years and 8 months from the formation of the arbitral tribunal on November 2, 2009 to the service of the arbitral award to the parties on July 27, 2016, far exceeding the four-month period stipulated in the Yangzhou Arbitration Rules. Although the arbitral tribunal applied for an extension of the trial period on the grounds of the complexity of the case, no specific time limit was determined at the time of application and approval, resulting in an extension of the arbitration period for more than six years, a serious departure from the provisions of the Yangzhou Arbitration Rules on the period of award. The arbitration case file also reflects that the arbitration tribunal's trial activities were mainly concentrated before the end of 2010, and the trial activities were basically stagnant from 2011 to 2012, and no trial activities were carried out for more than three years from 2013 to 2015. The applicant Xu has written to the arbitration tribunal many times to request the award as soon as possible, but it was not until July 2016 that the arbitration tribunal made a final award. It is therefore clearly inappropriate for the arbitral tribunal to extend a period sufficient to give the parties reasonable doubt as to the fairness of the arbitral proceedings. The Court needs to emphasize that "to ensure fair and timely arbitration of economic disputes and to protect the legitimate rights and interests of the parties" is the basic legislative purpose of China's arbitration law. As we all know, the procedure design of arbitration system is to achieve the value goal of fair and timely settlement of disputes. This is an important reason why the parties choose arbitration to resolve disputes, and it is also an important basis for the survival and development of the arbitration system. However, the arbitration tribunal in this case did not adjudicate for a long time without legitimate reasons and justifiable reasons, and the arbitration period lasted as long as six years and eight months, resulting in a long-term unstable legal relationship between the parties and unable to obtain timely and effective relief, which seriously damaged the legitimate rights and interests of the parties, the arbitral award involved in the case seriously violates the provisions of Article 51, paragraph 1, of the the People's Republic of China Arbitration Law and Article 42, paragraph 1, and Article 46 of the Yangzhou Arbitration Rules, which may affect the correct award of the case and should be revoked in accordance with the law. Summary of 3. Lawyers From the above cases 1 and 2, it can be seen that failure to make an arbitration award within the prescribed time limit does not constitute a violation of the arbitration procedure stipulated in the third paragraph of Article 58 of the Arbitration Law and a violation of the legal procedure. The "circumstances that may affect the correct award of the case" stipulated in Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Arbitration Law shall also apply." After comprehensive consideration, if it is necessary to extend the arbitration trial period due to special circumstances such as complex circumstances or epidemic situation, it will not affect the correct award of the case, and the arbitration award cannot be revoked according to this clause. On the contrary, arbitration is an efficient and convenient way to resolve disputes. If the arbitration tribunal does not issue an award for a long time without justifiable and legal reasons, and it will affect the rights of the parties and the correct award of the case, the court may set aside the arbitral award accordingly.
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Corporate Litigation Study... Corporate litigation rules of the company's capital reduction dispute.
Foreword The company's capital reduction dispute refers to the civil dispute caused by the company's reduction of registered capital in violation of legal procedures and conditions, which harms the interests of the company's shareholders or creditors. Capital reduction disputes are mainly divided into several categories: 1. Company shareholders file a lawsuit to confirm that the company's capital reduction is invalid or cancel the company's capital reduction resolution, which belongs to the company resolution dispute in the company dispute; 2. Company creditors file a lawsuit to require the company to pay off its debts or provide corresponding guarantee, which belongs to other disputes in the commercial field; 3. Due to the illegal capital reduction procedure, the company's creditors sued the capital reduction shareholders to assume supplementary liability for the company's debts within the scope of the capital reduction, and this type of dispute is a typical capital reduction dispute. By combing the relevant laws, supplemented by typical cases, this paper tries to clarify the relevant legal provisions and judicial rules for reference. 1. related regulations (I) related laws 1. the People's Republic of China Civil Procedure Law Article 26 Litigation arising from disputes over the establishment of a company, confirmation of shareholder qualifications, distribution of profits, dissolution, etc., shall be under the jurisdiction of the people's court of the place where the company is domiciled. 2. Company Law of the People's Republic of China Article 177 When a company needs to reduce its registered capital, it must prepare a balance sheet and an inventory of its property. The company shall notify the creditors within 10 days from the date of making the resolution to reduce the registered capital, and make a public announcement in the newspaper within 30 days. The creditor shall have the right to require the company to pay off its debts or provide corresponding guarantee within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if the notice is not received. (II) judicial interpretation 1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases (2011) 21. Disputes related to the company 281. Company capital reduction dispute 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 3 The domicile of a citizen refers to the place where the citizen's household registration is located, and the domicile of a legal person or other organization refers to the place where the main office of the legal person or other organization is located. If the location of the principal office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization shall be the place of domicile. Article 22 Jurisdiction shall be determined in accordance with the provisions of Article 26 of the Civil Procedure Law for lawsuits arising from disputes over records in the register of shareholders, requests for changes in company registration, shareholders' right to know, company resolutions, company mergers, company division, company capital reduction, company capital increase, etc. 3. (III) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. Article 14 Where a shareholder withdraws his capital contribution, the people's court shall support the request of the company or other shareholders to return the principal and interest of the capital contribution to the company, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contribution shall bear joint and several liability for this. The people's court shall support the shareholders who request the withdrawal of capital contributions to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions shall bear joint and several liability for this. The people's court shall not support the shareholders who have already assumed the above-mentioned responsibilities and other creditors make the same request. Minutes of the (III) National Civil and Commercial Trial Conference Notice of the Supreme People's Court on Issuing the Minutes of the National Courts Conference on Civil and Commercial Trials (Law [2019] No. 254) 2. on the trial of company dispute cases (I) on the validity and performance of the "gambling agreement". 5. ["Gambling" with the target company] If the "gambling agreement" concluded between the investor and the target company does not have any statutory reasons for invalidity, if the target company claims that the "gambling agreement" is invalid only on the grounds of the existence of equity repurchase or monetary compensation agreement, the people's court will not support it, but the investor claims that it is actually performed, the people's court shall examine whether it complies with the mandatory provisions of the Company Law on "shareholders shall not withdraw their capital contributions" and share repurchase, and whether the judgment supports their claims. If the investor requests the target company to buy back its shares, the people's court shall examine it in accordance with the mandatory provisions of Article 35 of the Company Law on "shareholders may not withdraw their capital contributions" or Article 142 on share repurchase. After examination, if the target company has not completed the capital reduction procedure, the people's court shall reject its claim. If the investor requests the target company to assume the obligation of monetary compensation, the people's court shall conduct a review in accordance with the mandatory provisions of Article 35 of the Company Law on "shareholders may not withdraw their capital contributions" and Article 166 on profit distribution. If, after examination, the target company has no profit or is not profitable enough to compensate the investor, the people's court shall reject or partially support its claim. In the future, when the target company has profits, the investor may also file a separate lawsuit based on that fact. Provisions issued by regional courts in (IV) 1. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues Concerning the Trial of Cases of Company Disputes (2008 No. 4) On the Dispute of 2. Shareholder's Capital Contribution 12. When the company is established, if the promoter makes a false capital contribution, the other promoters shall bear the joint and several liability for the payment. This liability is not waived by the transfer of equity by other promoters. If a shareholder withdraws his capital contribution, the shareholders, directors, managers and other senior management personnel who help to withdraw their capital contribution shall be jointly and severally liable. When the company increases its capital, if the shareholders make false capital contributions, the responsible shareholders, directors, managers and other senior managers shall bear joint and several liability. After the responsible person stipulated in the above three paragraphs has assumed responsibility, he may recover the compensation from the promoter or shareholder of the defective capital contribution, or he may demand from other jointly and severally responsible persons to pay off his share. 18. If the company fails to notify the creditors in accordance with the provisions of Article 178 of the Company Law, or fails to pay off the debts or provide corresponding guarantees in accordance with the requirements of the creditors, the company's creditors may require the shareholders to recover their respective capital contributions. Within the scope of the company's debts before the capital reduction, it shall jointly and severally bear supplementary liability for compensation. 2. Guidelines for the Judgment of the Second Civil Division of the Higher People's Court of Guangxi Zhuang Autonomous Region on Several Issues Concerning the Trial of Company Dispute Cases (Guigao Fa Min II [2020] No. 19) The effectiveness of the capital system of 1. companies. 2. [Capital Maintenance in Shareholder Withdrawal] Shareholder withdrawal involves the withdrawal of capital contribution and further the reduction of the company's capital. Therefore, based on the protection of creditors' interests, the company's capital system places certain restrictions on shareholder withdrawal:(1) Shareholders agree to withdraw their shares through the resolution of the company's shareholders' meeting, or withdraw their shares through claiming the right of repurchase of dissenting shareholders (Article 74 of the Company Law), the interests of creditors of the company shall be protected through legal capital reduction procedures (Article 177 of the Company Law);(2) If shareholders withdraw their shares through dissolution of the company, they shall protect the interests of creditors of the company through legal liquidation procedures (Article 183 of the Company Law);(3) Shareholders withdraw from the company by transferring all their shares, which does not involve the reduction of the company's capital and is not subject to the company's capital control, however, if the transferring shareholder transfers the equity without making a full capital contribution, he still bears the obligation to make up the capital contribution (Article 18 of Interpretation III of the Company Law). 2. the legal effect of the articles of association Review of the validity of 9. gambling agreements. 45. [Nature of Repurchase Clause] If the gambling agreement mode is adopted in the equity transfer transaction, the repurchase clause is usually set to withdraw the investment, I .e. to recover the "loan" or "financing fund". The people's court shall conduct a review at the level of the company's capital system, I .e. whether the repurchase complies with the statutory capital reduction procedure, so as to ensure that the interests of all parties behind the withdrawal of capital contribution or recovery of "financing fund" are fairly protected. However, if the investor requests the target company to repurchase its shares and at the same time appeals to the target company to perform the capital reduction procedure, the people's court will not support it because the company's capital reduction procedure is a matter of corporate autonomy and the judiciary will not intervene. Overview of 2. Litigation Plaintiff: Creditor Defendant: All or part of the shareholders (according to: Articles 13 and 14 of the (III) on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of China by the Supreme People's Court) Jurisdiction: under the jurisdiction of the people's court of the company's domicile (based on Article 26 of the Civil Procedure Law and Article 22 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law) Litigation request: 1. Request to order the defendant x x x to bear supplementary liability for the part of x x company's debt that cannot be paid off by the plaintiff within the scope of the capital reduction of x x yuan; 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. 3. Disputes and Judgment Rules (I) Controversial Question 1: Is the nature of capital reduction in violation of legal procedures equivalent to the withdrawal of capital contributions? Are shareholders liable for the withdrawal of capital contributions? The judgment case of Shanghai Delixi Group Co., Ltd. v. Jiangsu Boenshitong High-tech Co., Ltd., Feng Jun and Shanghai Boenshitong Optics Co., Ltd. in the 11th issue of the Bulletin of the Supreme People's Court in 2017 equated the nature of illegal capital reduction with the withdrawal of capital contribution. The Supreme Court heard the dispute over the loan contract between Anhui Xinji Coal and Electricity (Group) Co., Ltd., Rudong County Rural Credit Cooperative Association and Shanghai Hengde Zhidi Co., Ltd. [(2010) Min Ti Zi No. 79], the Supreme Court clearly put forward this point of view for the first time. There are different views that illegal capital reduction is equivalent to the nature of capital withdrawal, which will inappropriately expand the scope of liability, and will extend the scope of liability to other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital, and will improperly amplify the "harmfulness" of illegal capital reduction, Because in civil cases, it may involve the crime of withdrawing capital in criminal cases. Case 1: Shanghai Delixi Group Co., Ltd. v. Jiangsu Boen Shitong High-tech Co., Ltd., Feng Jun and Shanghai Boen Shitong Optics Co., Ltd. Case of Dispute over Purchase and Sales Contracts [Supreme Court Gazette Case 2016 Hu 02 Min Zhong No. 10330]] The court held that the shareholders of Jiangsu Boen Company formed resolutions of the shareholders' meeting on August 10 and September 27, 2012 on the reduction of the company's capital. At this time, the creditor's rights of Delixi Company had already been formed. As shareholders of Jiangsu Boen Company, Shanghai Boen Company and Feng Jun should know clearly. However, in this case, Shanghai Boen Company and Feng Jun still agreed to Feng Jun's request for capital reduction through the resolution of the shareholders' meeting, and did not directly notify Delixi Company, which not only damaged the solvency of Jiangsu Boen Company, but also infringed on the claims of Delixi Company, and should bear corresponding legal liability for the debts of Jiangsu Boen Company. When the company fails to notify known creditors of a capital reduction, the situation is not essentially different from the substance of the shareholder's illegal withdrawal of capital and the effect on the damage to the creditors' interests. Therefore, although our law does not specify the liability of shareholders in the event of damage to the interests of creditors as a result of a company's failure to comply with the statutory procedures for capital reduction, it can be determined by reference to the relevant principles and provisions of the company law. Due to the defects in the capital reduction behavior of Jiangsu Boen Company, the company's claims formed before the capital reduction cannot be paid off after the capital reduction, Shanghai Boen Company and Feng Jun, as shareholders of Jiangsu Boen Company, shall bear supplementary liability for the non-payment of the debts of Jiangsu Boen Company within the scope of the amount of the company's capital reduction. Case 2: Dispute over Loan Contract between Anhui Xinji Coal and Electricity (Group) Co., Ltd. and Rudong County Rural Credit Cooperative Association and Shanghai Hengde Real Estate Co., Ltd. [(Supreme People's Court (2010) Min ti Zi No. 79)]] The court held that: therefore, the withdrawal of the coal power company from Hengde company violated the legal procedure of capital reduction, which should be recognized as the name of capital reduction, which is actually the nature of capital withdrawal, and the coal power company should bear joint and several liability for the guaranteed debts of Hengde company within the scope of its capital contribution of 25 million yuan. Case 3: Xiangtan Dahan Iron and Steel Trading Co., Ltd. and Hu Zhi and Liang Shuai Company's Capital Reduction Dispute heard by Xiangtan Intermediate People's Court [(2014) Tan Zhongmin Erchu Zi No. 20]] The court held that: Jinrong Company did not notify the known creditor Dahan Company when reducing its capital, resulting in Dahan Company not knowing about its capital reduction, nor could it ask it to pay off its debts or provide guarantees in advance, the capital reduction procedure was flawed and had no legal effect on Dahan Company. Although the company law stipulates that the notice obligor when the company is reducing its capital is the company, the company's capital reduction is the result of the resolution of the shareholders' meeting, and whether and how to reduce the capital depends entirely on the will of the shareholders. As the shareholders of Jinrong Company, Hu Zhi and Liang Shuai still reduced the company's registered capital through the resolution of the shareholders' meeting even though they knew that the company's external liabilities had not been paid off. Subjectively, there was a fault, which objectively damaged the solvency of Jinrong Company and endangered the realization of the creditor's rights of Dahan Company. In essence, it caused the same consequences as the withdrawal of capital contribution, therefore, we should refer to the second paragraph of Article 14 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Law". The people's court shall support the shareholders who request the company's creditors to withdraw their capital contributions to bear supplementary compensation for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in withdrawing capital contributions shall bear joint and several liability for this; the shareholders who have withdrawn their capital contributions have already assumed the above-mentioned responsibilities. If other creditors make the same request, the people's court will not support the "treatment, I .e. the defendants Hu Zhi and Liang Shuai shall, within the scope of capital reduction, bear supplementary compensation liability for the payment obligations of Jin Rong Company as determined in the civil mediation document No. 43 of Tanzhong Min Er Chu Zi of our hospital (2012). Case 4: Cai Ruixian et al. v. Shanghai Yongdian Garment Technology Co., Ltd. Shareholder's Capital Contribution Dispute [(2014) Hu Yi Zhong Min Si (Shang) Zhong Zi No. 462]] The court held that, according to the provisions of the current company law, shareholders have the obligation to effectively perform their capital contributions in accordance with the articles of association of the company, and at the same time have the responsibility to maintain the company's registered capital. The company's capital reduction should be subject to legal procedures in accordance with the law to ensure that the company's creditors have the opportunity to make corresponding decisions before the company's assets are reduced.
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1. issues raised In order to improve the subsidiary value and attractiveness of the development of real estate, more and more developers choose to take "XX school district housing" and "gathering XX school" as the highlights of the sales promotion. However, the general commercial housing is mostly short-term housing, and the supporting construction is not synchronized with the delivery of housing, there is the possibility that the school district will fail or be inconsistent with the publicity. Article 473, paragraph 2, of the Civil Code clearly states that "commercial advertisements and publicity that meet the conditions for an offer constitute an offer." Does the developer's behavior of publicizing the school district housing constitute an offer? Does the publicized school have any influence on determining whether the developer constitutes a breach of contract within the scope of the commercial housing development plan? How should the developer and consumers avoid the possible risks brought by the school district housing publicity? 2.-related views and cases, refereeing views (I) the developer's publicity on the school district housing has a significant impact on whether the buyer enters into a commercial housing sales contract with him. The publicity color page should be regarded as the content of the contract and is binding on both parties to the contract. The house involved in the case is not in the school district, which is inconsistent with the contract agreement, resulting in the buyer's contract purpose cannot be realized, and the buyer can request to terminate the contract. Case: Cheng Juan and Chen Baoyin's Dispute over Housing Sales Contract (Heze Intermediate People's Court (2020) Lu 17 Civil Judgment No. 1331) The court held that the focus of the dispute in this case is whether the contract for the sale of the house involved should be terminated. First of all, Article 3 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" stipulates: "Commercial housing sales advertisements and promotional materials are invitations to offer, but the seller's housing and related within the scope of the commercial housing development plan If the explanation and promise made by the facility are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer. Even if the statement and promise are not included in the contract for the sale of commercial housing, they shall be regarded as the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." The publicity color page of the appellant Hejian Real Estate Company clearly indicates the words "live in Hejian Zijun City and study in Boyu Middle School". Dong Bowen, the daughter of the appellant Cheng Juan, is in high school. Such publicity by the appellant Hejian Real Estate Company has a significant impact on whether Cheng Juan and Chen Baoyin enter into a commercial housing sales contract with them. Therefore, the publicity color page should be regarded as the content of the contract and binding on both parties to the contract. At present, the house involved in the case is not in the enrollment area of Boyu Middle School in Cao County, which is inconsistent with the contract agreement. As a result, the contract purpose of Cheng Juan and Chen Baoyin cannot be realized. Therefore, the appellants Cheng Juan and Chen Baoyin's request to terminate the commercial housing sales contract involved in the case is based on the law, and the court supports it. If the description and promise made by the (II) developer on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer, even if it is not included in the commercial housing sales contract, It should also be regarded as the content of the contract. Case: Wang Xinxin, Liu Shangneng and Suzhou New High Land Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Suzhou huqiu district People's Court (2018) Su 0505 Minchu No. 3012 Civil Judgment) The court held that:... the defendant repeatedly mentioned "double school district", "the third middle school of the new district and the experimental middle school of science and technology city", "double school district guarantee", "easy to choose a house but difficult to choose a school", "double school district, experimental middle school" and other contents in the pavement and billboards, website publicity materials and WeChat promotion platform of Hongjinwan real estate, according to the above sales advertisements and publicity materials, ordinary buyers can naturally draw the conclusion that the house involved in the case belongs to the school district of Science and Technology City Experimental Middle School (Science and Technology City Branch of New District Experimental Middle School) and their children can study in the school, which will have an important impact on whether to buy the house involved in the case and the determination of the price of the house involved. Therefore, it should be regarded as an offer, even if both parties fail to include the defendant's publicity and promise about the school district in the Commercial Housing Purchase Contract. However, this content shall also be an integral part of the contract and both parties shall be bound by it. According to the relevant documents of the education department of Suzhou City and the High-tech Zone on the division of the school district, the house involved does not belong to the school district of the New District Experimental Middle School Science and Technology City Branch, but belongs to the school district of the New District No. 3 Middle School, so the defendant violated the contract and constituted a breach of contract., Should bear the liability for breach of contract. Real estate belongs to the family's large property, its primary function is to live. Buyers who buy houses in order to choose school districts are different from ordinary buyers. They have reason to believe that they have a deeper understanding of local school district policies, and they should be more cautious than ordinary buyers. Therefore, the choice of the school district is not the contractual purpose of the contract for the sale of the house in this case, and the plaintiff made the decision to purchase the house involved due to negligence and recklessness, and he himself was quite at fault. In view of the fact that the plaintiff did not provide any evidence to prove the price difference between the house involved in the case and the surrounding non-key school district houses in the same location and the same quality at the time of purchase, and the appraisal application for similar cases in the same district was also returned due to the incomparable sample, there is no evidence to prove the loss of the house price difference claimed by the plaintiff. However, the defendant's improper publicity constituted a breach of contract, which caused the dispute in this case. The court considered the fault degree of both parties and the performance of the contract, and decided to compensate the plaintiff for the loss of 10000 yuan. As for the agreement between the two parties in annex 5 to the contract: article 2 of the supplementary agreement to the contract, the court believes that the above agreement, as a standard clause provided by the seller, does not formally prompt and explain the plaintiff in a way sufficient to attract the attention of the buyer. the content excludes the buyer's main rights and exempts itself from its own obligations, thus it is invalid. (III) the school is outside the scope of the housing development plan involved in the case, the supplementary agreement clearly stipulates that the promotion of commercial housing does not constitute a contract offer, the buyer fully understands the terms of the contract when the contract is signed, and the developer does not constitute a breach of contract. Case: Li Shougang's Dispute over Commercial Housing Sales Contract with Jinan Yuantai Real Estate Co., Ltd. and Shandong Beida Resources Real Estate Co., Ltd. (Jinan Intermediate People's Court (2017) Lu 01 Min Zhong No. 5484 Civil Judgment) The court held that the "Notice" issued by Peking University Resources Company... was not included in the commercial housing sales contract, and the seventh paragraph of Article 17 of the contract stipulates that "the sand table, model, model room, publicity materials and publicity advertisements displayed by the seller are only for promotion indication, and do not constitute any offer. All agreements in this contract shall prevail, and the delivery entity shall prevail if there is no agreement in this contract", therefore, the contents of the above notice cannot be regarded as the contents of the contract. Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Contracts for the Sale of Commercial Housing stipulates that ...... the "housing and related facilities" referred to in this provision are "within the scope of the planning for the development of commercial housing", while the school referred to in the Notice does not fall within the scope of the planning for the development of the housing involved, so the provisions of the judicial interpretation cannot be applied to this case. In the case that the content of the school district housing in the "Notice" was not included in the commercial housing sales contract, Li Shougang claimed the relevant liability for breach of contract based on the content. There was no basis in the law, and the first instance did not support it, which was not improper. (IV) the school has changed due to planning adjustment, it is still equipped with corresponding educational resources. The occurrence of this fact is related to the corresponding planning adjustment of the local government. The developer's publicity about the school district housing is not false publicity and does not constitute a breach of contract. Case: Wu Kouzhu, Miao Yamin and Ocean Real Estate Zhenjiang Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Higher People's Court (2017) Su Minshen No. 957 Civil Judgment) The court held that there was a primary school originally planned in the third phase plot of Sino-Ocean Company, but according to the planning adjustment of Zhenjiang City Planning Committee, it was decided that the primary school and the junior high school reserved in the resettlement house on the east side of the third phase plot of Sino-Ocean Company should be merged into a nine-year consistent school. ... Even if it is confirmed that the introduction of the propaganda of Runzhou Experimental Primary School by Sino-Ocean Company is indeed an offer, the original primary school is changed to a nine-year consistent school due to planning adjustment, and the teachers are arranged by the Education Bureau of Runzhou District, Zhenjiang Experimental School and Runzhou Experimental Primary School as a whole, and they are still equipped with corresponding educational resources, and the school actually built is changed from a primary school to a nine-year consistent school, which is related to the corresponding planning adjustment of local government, the 1. Court of Second Instance did not support Wu Kaozhu and Miao Yamin's claim that the Ocean Company "introduced Runzhou Experimental Primary School" as false propaganda, which constituted a breach of contract and also constituted fraud. 3. Summary Article 472 of the Civil Code provides for the definition and constituent elements of an offer, and article 473, paragraph 2, provides that "if the content of commercial advertisements and publicity meets the conditions of an offer, it constitutes an offer." Article 3 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of disputes over commercial housing sales contracts stipulates that "the sales advertisements and publicity materials of commercial housing are invitation to offer, but the seller's explanation and promise on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, It constitutes an offer. The statement and promise, even if it is not included in the contract for the sale of commercial housing, shall be the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." Whether the developer's behavior of publicizing the school district housing constitutes an offer is the key to judging whether the developer is in breach of contract and whether the contract for the sale of commercial housing can be terminated. One point of view is that commercial housing and related facilities generally include commercial housing itself and the supporting infrastructure and public buildings of commercial housing. Schools are not within the scope of commercial housing development planning. Supporting schools are decided by the local government's corresponding planning and adjustment, and are not based on the will of the developer. The relevant commercial housing sales contract also clearly stipulates that the content of the contract shall prevail. There is no guarantee about the school in the contract. The publicity of the school district housing cannot constitute an offer, there is no possibility of default by the developer; however, if the school is indeed within the scope of the commercial housing development plan, the school advertised by the developer does not exist or is different from the school actually attended, there is a risk of being identified as an offer and constituting a default. Another point of view is that there are transportation, schools, hospitals and other supporting facilities around the house, and the school should belong to the relevant facilities within the scope of the commercial housing development plan. The promise made by the publicity is clear and definite, and the publicity of xx school has an important impact on whether the buyers conclude the commercial housing sales contract and the determination of the housing price. The publicity of the school district housing constitutes an offer, and the failure or change of the school district leads to the developer to breach of contract, should bear the liability for compensation, the circumstances are serious so that the buyer can not achieve the purpose of school may have the risk of termination of the contract. In practice, local courts have slightly different criteria for judging whether the developer's publicity of the school district house constitutes an offer, which needs to be judged in combination with the actual situation of the case. Even if most courts determine that the developer's publicity of the school district house constitutes an offer, the inconsistency between the school and the publicity when the house is actually delivered constitutes a breach of contract. In most cases, the breach of contract has not reached the level of termination of the contract, but the developer should bear certain liability. 4. Risk Alert Our lawyers believe that developers should raise their risk awareness when promoting commercial housing, carefully carry out advertising activities, avoid misleading publicity, and clearly mark the behavior as an invitation to offer in publicity materials such as leaflets and advertising walls, and the actual commercial housing sales contract signed by both parties shall prevail. In addition, because the commercial housing sales contract is a standard contract provided by the developer, there is a risk that individual clauses will be recognized as standard clauses, the important terms can be prompted and explained in a way that is sufficient to attract the attention of the buyer, and the buyer can be fully explained when signing the contract, and it is clear that "if the agreement in the commercial housing sales contract is inconsistent with the advertising agreement, the agreement in the sales contract shall prevail". As an important asset of the family, consumers should exercise prudent care when buying a house, have an in-depth understanding of the local school district policy, and avoid taking losses due to negligence and rash decisions to buy a house.
2021-12-20
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
