Retrial Examples | How should new evidence submitted at the retrial review stage be determined?

Basic case The retrial applicant Zhang refused to accept the civil judgment of a city intermediate people's court and applied to the Shandong Provincial higher people's Court for a retrial because of a dispute over the right of recourse with the respondent, a real estate development company and a property management company. Zhang applied in accordance with items (I) and (II) of Article 200 of the the People's Republic of China Civil Procedure Law (amended in 2017). Subject matter I: Apply for a retrial on the ground that there is new evidence sufficient to overturn the original judgment. Zhang applied for retrial and submitted new evidence. One was a "Power Transmission and Transformation Project Installation Agreement" signed by a real estate development company and Zhang, which confirmed that there was a contractual relationship between the two parties. Zhang advanced the project price. A real estate development company shall return the advance money and pay interest before the expiration of the agreed period. The second is two witness testimonies, confirming the construction situation and the fact of advance funds. Subject matter II: Apply for retrial on the grounds that the basic facts found in the original judgment lack evidence. The original judgment found that the "certificate" issued by a property management co., ltd. submitted by Zhang on July 20, 2007 did not have the signature or seal of the producer or the person in charge of the unit in form, and did not meet the formal requirements of the unit to issue the certification materials. the original court did not adopt the validity of the evidence. Zhang believes that although the form of the "Certificate" issued by a property management company is flawed, it can be mutually confirmed with the "Power Transmission and Transformation Project Installation Agreement" and other evidence submitted for retrial, and it is wrong for the court of second instance not to accept the "Certificate. A real estate development company and a property management company submitted a written reply that the facts in the original judgment were clear and the applicable law was correct, and requested that Zhang's retrial application be rejected in accordance with the law. retrial court decision Zhang's lawsuit request is to order a real estate development co., ltd. to repay 1.05 million yuan and interest on the project advance, and a property management co., ltd. to assume joint repayment responsibility for the above debts. In the original trial, Zhang submitted evidence such as details of construction costs, recording of calls, and proof of arrears in order to confirm his claim. As for the details of construction costs, a real estate development co., ltd. and a property management co., ltd. did not approve them. the original trial considered them to be photocopies and made by Zhang mou unilaterally. there was no corresponding construction contract, construction log, project completion settlement documents and other evidence to support them. the proof effect of the evidence and the facts to be proved were not confirmed. With regard to the recording of the call, Zhang has no evidence to prove that the recorded person is the person in charge of the construction project he claims, and the recorded person has not explicitly recognized the arrears claimed by Zhang, and in the absence of other valid evidence to support it, the validity of the recording evidence and the facts to be proved in the original trial will not be determined. In the application for retrial, although Zhang submitted two receipts from China Mobile Communications Company, it was not enough to prove the identity of the person in charge of the construction project. On the validity of the certificate of arrears. The debt certificate provided by Zhang not only has the situation that the name of the person who wrote the money does not match the seal, but also does not have the signature or seal of the manager or the person in charge of the company. Zhang's evidence does not conform to the form prescribed by law, and the original trial is not accepted, which is not improper. On May 21, 2007, a real estate development company and Zhang signed a "Power Transmission and Transformation Project Installation Agreement" on Zhang's application for retrial, which intends to confirm the existence of a power transmission and transformation project construction contract relationship between the two parties. In this regard, the retrial court held that during the first trial of this case, Zhang made the following statement on the relevant inquiries of the court: the construction project from 2004 to 2007 did not sign a written contract, only had an oral agreement with the staff authorized by a real estate development company (the name is unknown), and there was no corresponding construction quantity record and account, and the construction quantity was not signed and confirmed by a real estate development company limited. The "Power Transmission and Transformation Project Installation Agreement" signed with a real estate development company on May 21, 2007, which is now claimed by Zhang, contradicts Zhang's court statement and does not conform to the "Supreme People's Court on Application".<中华人民共和国民事诉讼法>The Court will not accept the criteria for identifying new evidence. As for the witness testimony submitted by Zhang, it is intended to confirm the construction situation and the fact of advance payment, but it is not enough to overturn the original judgment without other evidence to support it. Therefore, Zhang's retrial reason for overturning the original judgment with new evidence cannot be established. Lawyer's opinion Item 1 of Article 217 of the the People's Republic of China Civil procedure Law (amended in 2021): "only when there is new evidence sufficient to overturn the original judgment or ruling" can the conditions for retrial be met. According to the first paragraph of Article 387 of the Interpretation of the the People's Republic of China Civil Procedure Law (revised in 2020) of the Supreme People's Court, "if the new evidence provided by the retrial applicant can prove that the original judgment or ruling determines the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in paragraph 1 of Article 200 of the Civil Procedure Law". In combination with this case, the court not only formally examines whether the new evidence submitted by the retrial applicant belongs to the new evidence submitted during the retrial, but also examines whether the new evidence is "sufficient to overturn" the facts identified in the original judgment and ruling. In the retrial review stage, the court takes the high probability as the standard for the new evidence, instead of adopting the unnecessary standard, too strict with "sufficient to overturn" as the standard may cause the application for retrial to become a mere formality. First, the retrial of new evidence must meet the standards set by the law and judicial interpretation. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation (2020 Amendment) "Article 388:" If the retrial applicant proves that the new evidence submitted by him meets one of the following circumstances, the reason for overdue provision of evidence may be determined to be valid: (1) it existed before the end of the original trial and was discovered after the end of the trial due to objective reasons; (II) it has been discovered before the end of the original trial, however, it cannot be obtained due to objective reasons or cannot be provided within the prescribed time limit; the (III) is formed after the end of the original trial, and a separate lawsuit cannot be filed accordingly. If the evidence submitted by the retrial applicant has been provided in the original trial, and the people's court of the original trial has not organized cross-examination and has not been used as the basis for the judgment, it shall be deemed that the reason for providing the evidence within the time limit is established, but the people's court of the original trial shall be in accordance with Article 65 of the Civil procedure Law ". Secondly, the probative force of the new evidence must be sufficient to overturn the original judgment and ruling in order to cause a retrial. In essence, the probative force of the new evidence must be sufficient to overturn the original judgment or ruling in order to cause a retrial. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 387 of the Interpretation (2020 Amendment): "If the new evidence provided by the retrial applicant can prove that the original judgment, ruling, the determination of the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in Item 1 of Article 200 of the Civil Procedure Law. For the evidence that meets the provisions of the preceding paragraph, the people's court shall order the retrial applicant to explain the reasons for providing the evidence within the time limit; if he refuses to explain the reasons or the reasons are not tenable, it shall be dealt with in accordance with the provisions of paragraph 2 of Article 65 of the Civil procedure Law and the provisions of Article 102 of this interpretation". Finally, the judicial view of the People's Court of the Supreme Court also holds that at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of certainty, rather than requiring new evidence to overturn the original decision. The new evidence at the retrial review stage meets the requirements of the first paragraph of Article 387 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law. How to grasp the standard of "sufficient to overturn", there are two approaches in practice: one is to adopt the standard of inevitability, that is, the original judgment must be changed after the retrial; the other is to adopt the standard of probability, that is, the evidence may overturn the original judgment. Because the retrial review procedure and the retrial procedure are two relatively independent stages in the trial supervision procedure, the purpose of the retrial review procedure is to decide whether to initiate the retrial procedure, and the retrial procedure is to make a substantive judgment on the case. The different purposes and tasks of the two procedures determine that there are significant differences between the review standards adopted by the retrial review and the retrial trial. The function of retrial review cannot be replaced by the function of retrial review. Not to mention the purpose of retrial review can be replaced by the purpose of retrial, otherwise the protection of the right of the parties to apply for retrial and the maintenance of the effective judgment of the res judicata are diametrically opposed, denying the unique procedural function of retrial review. Therefore, at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of probability, rather than requiring new evidence to overturn the original decision, otherwise it is likely that the case that should be retried will not be retried or the retrial procedure will be formalized.</中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>

2022-02-07

Hu Li Fully Leading 2022 | Zhongcheng Qingtai Jinan Region 2022 Spring Festival Celebration and Work Mobilization Meeting Held Ceremoniously

Fu Hu Shengwang, start good fortune. On February 7, 2022, the first working day of the Lunar New Year of the Tiger, Zhongcheng Qingtai Jinan Regional Spring Festival Celebration and Work Mobilization Meeting was held ceremoniously. All colleagues exchanged New Year blessings and discussed the work arrangements for 2022. The meeting was presided over by Director Yao Huming, and Jinan regional branches and business departments reported their 2022 work plans respectively. In the new year, Zhongcheng Qingtai region will continue to innovate in market expansion, team building, business training, professional development, social welfare and other aspects, and make unremitting efforts to build a mainstream national institute. (Heads of Business Departments of Shanghai Institute, Free Trade Zone Institute and Jinan Institute Report 2022 Work Plan) Director Geng Guoyu Mobilizes New Year's Work. Director Geng, in combination with the development situation of the lawyer industry, proposed that in 2022, we should actively give full play to the advantages of Zhongcheng Qingtai, pay attention to key markets, care about the development of young lawyers, vigorously integrate resources, improve the service and empowerment level of law firms, enhance the happiness of employees, and encourage all colleagues to continue to work hard, make great efforts and lead the 2022! Director Han Honggang made a speech for the Spring Festival. Director Han encouraged everyone to handle the many relationships faced by lawyers, improve their professional ability, build big-name lawyers, build brand law firms, and express New Year's congratulations to all colleagues. I wish everyone a good start!

2022-02-07

Real estate perspective: whether the idle land of the mortgage can be recovered without compensation and the risk of loss of the mortgage is prevented.

In order to make effective use of land, China's Land Management Law stipulates the prohibition of idle land and the system of free recovery of idle land. The conditions for free repossession have been discussed in the March 5, 2021 issue of "Land, How Can I Be" Idle ", please refer to the author. At the same time, land use right is also a kind of property right. After a real estate development company obtains the right to use state-owned construction land of a certain plot through transfer, it usually uses it as collateral to obtain loans from banks, and banks, insurance, trusts, etc. When various financial institutions conduct financing transactions with real estate development companies, in order to ensure repayment, they often require real estate development companies to provide mortgage guarantees for their debts with their land use rights. In view of this, a contradictory question arises: if a certain plot of land is idle land that has been mortgaged, can it be recovered? If it is recovered without compensation, does it affect the interests of the mortgagee? Which is more important, the civil effect of the mortgage and the administrative effect of the recovery without compensation? 1. legal provisions The second paragraph of Article 13 of the measures for the disposal of idle land stipulates: "if there is a mortgage on idle land, the municipal and county competent departments of land and resources shall notify the relevant mortgagee in writing when drawing up a plan for the disposal of idle land." Article 14 of the measures for the disposal of idle land stipulates: "if the development has not been started for two years, the municipal and county departments in charge of land and resources shall, in accordance with the provisions of Article 37 of the Land Administration Law and Article 26 of the Urban Real Estate Administration Law, after being submitted to the people's government with the power of approval, issue a" decision on the recovery of the right to the use of state-owned construction land "to the right of state-owned construction land. If the idle land has a mortgage, it shall be copied to the relevant land mortgagee." Article 24 of the measures for the disposal of idle land stipulates: "if the holder of the right to the use of state-owned construction land violates the provisions of laws and regulations, the contract agreement, and the provisions of the allocation decision, the municipal and county land and resources departments shall not accept the new land use application of the holder of the right to the use of state-owned construction land, and shall not handle the transfer, lease, mortgage and change registration of the land identified as idle land. Reply of the State Land Administration on the Request for Interpretation of Article 17 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns: "Mortgage rights are attached to land use rights. When the land use right as the main right is eliminated due to the administrative organ's punishment of recovering the land use right in accordance with Article 17 of the Interim Regulations on the transfer and transfer of state-owned land use right in the People's Republic of China cities and towns, the mortgage right set on the land use right shall be eliminated." According to the above provisions, the conflict between the mortgage and the recovery of idle land can be divided into the following two situations according to the "priority of mortgage setting. See Schedule 1 for details. 2. jurisprudence-the performance of the service, copy procedure, that is, the determination of the legal recovery of administrative procedures without compensation. Case:(2017) Min 08 Line Final 128 Name: "Longyan City Yongding District Land and Resources Bureau, Longyan City Land and Resources Bureau Resources Administration: Land Administration (Land) Second Instance Administrative Judgment" Referee's point of view: Before Yongding District Land and Resources Bureau made the decision to recover, the land use right involved in this case was used for mortgage loan. Because Guidong Electric Power transferred the relevant mortgage creditor's rights, the original mortgagee no longer enjoyed the mortgage right to the land use right involved. Therefore, Yongding District Land and Resources Bureau no longer needs to copy the decision to the original mortgagee, even if Guidong Electric Power transferred the relevant creditor's rights, however, since Guidong Electric Power had acquired 100 per cent of the appellee's equity before the recovery decision was made and became the appellee's company shareholder, yongding district Land and Resources Bureau delivered the decision to the appellee, and Guidong Electric Power, as the appellee's company shareholder, should also be aware of it. Therefore, it should be determined that yongding district Land and Resources Bureau has not violated the procedural provisions of sending a copy of the recovery decision to the relevant land mortgagee. According to the provisions of the measures for the disposal of idle land, the land and Resources Bureau of Yongding District determined that the parcel involved in the case was idle land in accordance with the law, and made a decision to recover it free of charge, and the procedure was legal. 3. on idle land mortgage loss risk prevention. As mentioned above, under the framework of the current free recovery system, the mortgagee's own legitimate rights and interests are not well protected. However, "there must be a way to get to the front of the mountain". As a mortgagee, he can also find his own way of relief under the existing normative framework. See Schedule 2 for details: The author's point of view: on the establishment of mortgage idle land can be recovered by the government free of charge, the author has been from the law, judicial jurisprudence and other aspects of the discussion. At present, in practice, it is more inclined to set up a mortgage, the land can still be recovered by the government free of charge, the mortgagee can not be based on the mortgage to defend, of course, the practice in the academic and other aspects also caused a lot of controversy. For the competent department of land resources, when exercising the procedures for the recovery of idle land, it is necessary to perform procedures such as announcement, written service, and copy in accordance with the provisions of the ''Idle Land Disposal Measures'' to avoid procedural violations; at the same time, it should also pay attention to departmental communication and coordination., To seek the best regulatory effect, especially to avoid conflicts with the effective judgment of the court. For the mortgagee, in the process of establishing the mortgage, it is best to do a good job of due diligence in the early stage, and understand the basic situation of the land from the mortgagee, including the use of the land, whether construction has started, whether it may constitute idle land, etc., from the source Control the risk that the mortgagee cannot claim rights after the mortgaged land is recovered free of charge. The above is the whole content of this real estate perspective. Here, on behalf of all members of the real estate perspective team of Zhongcheng Qingtai Law Firm, the author sends new year's greetings to all of you, wishing you all good luck in the new year, prosperity in the golden tiger and prosperity in the year of the tiger.

2022-01-28

The public welfare case I undertook was selected as the first lawyer to participate in the top ten typical cases of handling major events.

In the name of love, gather goodwill. Speak for love and help the public good. On January 26, 2022, the results of the "First Lawyer Public Welfare (Social Responsibility) Typical Cases" solicitation and selection activity carried out nationwide by the Rule of Law Daily and the Lawyer Research Center of China University of Political Science and Law were announced. In combination with public voting and expert review, the "Series of Public Interest Litigation Cases of Chinese Workers' Claims against Japan in World War II" that I participated in was selected as the "Top Ten Typical Cases of Participating in Disposal of Major Events". Lawyer Dong Yiming, the founding partner of our firm and director of Beijing Institute, joined the Chinese non-governmental claims against Japan lawyer group initiated by Kang Jian lawyer of Beijing Fangyuan Law Firm in 2000, and is a member of the steering group of non-governmental claims against Japan lawsuit of the National Lawyers Association. As the executive head of the legal team, the team of lawyers Dong Yiming and Zhou Jiakui is responsible for the investigation and evidence collection in Shandong. Together with Chinese lawyers, Japanese lawyers and non-governmental support groups in China and Japan, they have repeatedly visited Jinan, Dezhou Pingyuan, Yucheng, Weifang, Qingdao and other places in Shandong Province to investigate and collect evidence, look for living workers, record a large number of oral transcripts for surviving workers and their survivors, and their survivors, and take videos, provide compulsory legal services to workers. In 2004, lawyer Dong Yiming filed a damages lawsuit with the Japanese government and related Japanese companies as defendants in the Miyazaki Prefecture Court on behalf of Shandong victimized workers, and appeared in court many times as an assistant to assist the workers in presenting their opinions in the court. Since then, he has traveled to Japan more than ten times at his own expense, led dozens of workers and their survivors to the places where they were forced to work on the spot to investigate and collect evidence, and helped more than 100 workers to participate in rallies, speeches, publicity and other activities in Tokyo, Japan, and exposed the fact that the Japanese government and related enterprises had harmed Chinese workers through various press conferences. In February 2014, the private claim lawyer group against Japan began to file a domestic lawsuit. Dong Yiming, Zhou Jiakui and other lawyers jointly accepted the entrustment of more than 50 workers and their survivors who were persecuted during World War II, and sued Mitsubishi Integrated Materials Co., Ltd. and Japan Coke Industry Co., Ltd. for damages in the Beijing No. 1 Intermediate People's Court. In March of the same year, the Beijing No. 1 Intermediate People's Court accepted the case, becoming the first case in which a domestic court accepted and heard a Chinese World War II labor lawsuit against a Japanese company. Over the years, our lawyers Dong Yiming, Zhou Jiakui and other lawyers participated in the "Chinese World War II Labor Claims Lawyers Group against Japan", which has overcome multiple difficulties and has repeatedly represented private "forced labor" claims against Japan in public interest litigation. It has made important contributions to safeguarding the legitimate rights and interests of domestic victims. This selection is not only a manifestation of the social responsibility of our lawyers, but also an interpretation of the professional significance of lawyers. In the future, Zhongcheng Qingtai lawyers will continue to uphold the public welfare feelings of giving back to the society, earnestly handle every public welfare case, practice the practice concept of "rule of law for the people" in specific cases, and realize the sacred duty of legal workers to enforce the law for the people.

2022-01-26

Zhongcheng Qingtai Jinan Institute 2021 Fund Business Fruitful Results

In 2021, Zhongcheng Qingtai Jinan Fund's legal service performance was fruitful, including the fund's perennial legal adviser, fund manager registration, fund establishment and filing, fund investment and financing, changes in major matters of fund managers, fund dispute handling, and fund liquidation business all increased on a large scale. The new units of perennial legal advisers in the fund category include Shandong Green Development Fund Management Co., Ltd., Weihai Industrial Investment Group Co., Ltd., Jinan Licheng Financial Holding Group Co., Ltd., Shandong Expressway Shengtong Private Equity Fund Management Co., Ltd. and other units; the registration performance of new managers mainly includes Shandong Guoxin Yiyang Private Equity Fund Management Co., Ltd., Shandong Lushang Private Equity Fund Management Co., Ltd., Shandong Tietou Investment Management Co., Ltd., Jinan Caitou New Kmoing Private Equity Fund Management Co., Ltd. Provincial state-owned fund companies; in addition, fund investment, major changes in fund managers, fund product establishment and filing business have increased on a large scale, among them, the standardization and filing of three difficult private equity fund products with a cumulative scale of 6 billion yuan have been completed. With a large number of fund products entering the exit liquidation period, this year's fund liquidation exit and dispute resolution performance growth is more significant. Among them, the fund liquidation exit projects include the iron investment Changyi fund share transfer project, Weifang Guoxin fund liquidation project, Tiandi co-rich fund liquidation project. The project of fund dispute handling includes the dispute handling of a relief fund in Shandong, a dispute handling involving HNA investment fund, a fund repurchase dispute handling in Weihai, and a dispute handling project involving Ruyi investment fund. The total amount involved in the liquidation, withdrawal and dispute settlement of the above-mentioned funds is nearly 2 billion yuan. The withdrawal path and dispute settlement plan formulated by Zhongcheng Qingtai Fund team are feasible and have achieved good results. Zhongcheng Qingtai Jinan set up a fund business center in May 2019 in order to do excellent, refined and specialized fund business and better provide legal services to fund business clients. The center brings together excellent lawyers from various departments in the institute and is now composed of more than 30 senior lawyers who are proficient in and familiar with the field of fund legal business. The team lawyers are all graduated from well-known law colleges in China, more than 80% of lawyers have a master's degree or above, a diploma with a double degree, and a collection of multi-compound lawyers in the fields of companies, securities, criminal, and real estate. The legal service team of Zhongcheng Qingtai Fund has been providing legal services for the provincial, municipal, and county (district) government guidance funds. Since 2017, it has provided services for the Shandong Provincial Guidance Fund. The current guidance funds also include Jinan City Guidance Fund, Weihai City Guidance Fund, Jinan Licheng District Guidance Fund, Qingdao North District Guidance Fund, etc. In addition to the above-mentioned guiding fund clients, it also provides legal services to more than 30 provincial and municipal state-owned enterprise fund companies and high-quality private fund companies, including Shandong Finance Group, Shandong Development Investment Group, Shandong Guohui Group, Shandong Merchants Group, Shandong Expressway, Jinan first Investment Company, etc., and has been committed to providing customers with accurate scheme design, Minimize legal risks for customers.

2022-01-26

Viewpoint... The mortgagee's remedy when the mortgage is criminally recovered.

Introduction Article 11 of the Provisions of the Supreme People's Court on the Partial Execution of Criminal Judgment Involving Property stipulates that the people's court shall recover the property involved in the case that the person subject to execution has used the criminal judgment as stolen money to pay off debts, transfer or set up other rights burdens under any of the following circumstances: (1) the third party knowingly accepts the property involved; (II) the third party to obtain the property involved free of charge or at a price significantly lower than the market price; (III) a third party to obtain the property involved in the case through illegal debt settlement or illegal and criminal activities; (IV) a third party to obtain the property involved in the case through other malicious means. If a third party obtains the property involved in the case in good faith, it shall not be recovered in the execution procedure. Thus, property acquired in good faith by a third party is exempt from criminal recovery, which includes "mortgages". However, in judicial practice, it is often the case that the criminal procedure has already disposed of the property involved in the case in the form of a criminal judgment in advance. At this time, how should the subject matter of the mortgage be disposed of? Can the mortgagee continue to claim and realize the priority of compensation that he enjoys? What remedies can the mortgagee take? 1. Determination of "Bona Fide Acquisition" of Property Involved in Cases Article 3111 of the Civil Code states that if a person without the right of disposition transfers a real or movable property to a transferee, the owner has the right to recover it; unless otherwise provided by law, the transferee acquires the ownership of the real or movable property if the following circumstances are met: (1) the transferee is in good faith when transferring the real or movable property; (II) transfer at a reasonable price; (III) the transferred real or movable property should be registered in accordance with the law, not required to be registered has been delivered to the transferee. If the transferee acquires the ownership of the immovable or movable property in accordance with the provisions of the preceding paragraph, the original owner shall have the right to claim compensation from the person without the right of disposition. Where the parties acquire other real rights in good faith, reference shall be made to the provisions of the preceding two paragraphs. Thus, in the case of a mortgage on immovable property, a bona fide acquisition should include three elements: the mortgagee must be in good faith, the principal claim is legally valid, and the registration of the mortgage on immovable property has been completed. Related cases: Sichuan Higher People's Court (2018) Chuan Minshen No. 6374 [Liu Yun and liuyong's Application for Execution of Objection to Execution]. The court held that the house involved in the case was registered in the name of the criminal offender. Based on the public credibility of the real right registration, the mortgagee has the right to believe that the criminal offender is the owner of the house involved in the case and has the right to dispose of the house involved in the case. As for how the criminal offender obtains the ownership of the house involved in the case, it is beyond the scope of the mortgagee's examination and judgment. The mortgagee fulfills the loan amount of the loan contract and completes the mortgage registration of the house involved in the case in the housing management department, that is, obtains the mortgage right of the house involved in the case. The mortgage right obtained by the 2. in good faith and the rule of the order of the execution of criminal judgment. Article 13 of the "Several Provisions of the Supreme People's Court on the Partial Execution of Criminal Judgments Involving Property", the person subject to execution shall bear both criminal and civil liabilities during execution, and if his property is insufficient to pay, it shall be executed in the following order: (1) Personal Medical expenses in compensation for injury; (II) refund of the victim's losses; (III) of other civil debts; (IV) fines; (V) confiscation of property. If the creditor has the right of priority compensation for the subject matter of execution in accordance with the law, and its claim for priority compensation, the people's court shall support it after the medical expenses specified in item (I) of the preceding paragraph have been paid. Therefore, the content of the judgment of the victim's refund and confiscation determined in the criminal judgment cannot exclude the enforcement applied by the mortgagee based on his priority right of compensation. The legally and effectively established mortgage and other priority compensation rights can be given priority to the refund and compensation part of the criminal victim, and even the fines and related property confiscated by the people's court. Related cases: Guangdong Provincial Higher People's Court (2018) Yue Zhi Fu No. 80 [Shenzhen Huiye Group Co., Ltd., China CITIC Bank Co., Ltd. Shenzhen Branch Financial Loan Contract Dispute Enforcement Dispute], the court held: The applicant, China CITIC Bank Shenzhen Branch, as the mortgagee of the eight properties involved in the case, enjoys legal mortgage rights to the above-mentioned properties. Even if the dissident Huiye Company is a criminal victim, CITIC Bank Shenzhen Branch, as the mortgagee, will give priority to Huiye Company and other criminal victims in accordance with the law. The way of the right relief of the mortgagee in the criminal execution procedure of the 3.. In the stage of criminal execution, if the mortgagee believes that the execution procedure harms his legitimate rights and interests, he can consider the following three remedies: first, he can submit a written objection to the execution court; second, he requires the procuratorial organ to carry out procuratorial supervision on the execution behavior of the court; third, he can appeal to the effective criminal judgment as an outsider. (I) to file a written objection to the enforcement court Article 14 of the Several Provisions of the Supreme People's Court on the Partial Execution of Criminal Judgments Involving Property stipulates that during the execution process, the parties and interested parties believe that the execution violates the legal provisions, or the outsider's claim on the subject matter of the execution is sufficient to prevent the execution. If a written objection is filed with the enforcement court, the enforcement court shall deal with it in accordance with the provisions of Article 225 of the Civil Procedure Law. The people's court shall open the hearing when examining the objection and reconsideration of an outsider. Thus, when the criminal case has entered into force and enters the execution procedure, and the mortgagee later knows that the mortgage has been confiscated or returned to the criminal defendant, the mortgagee can make it clear that his mortgage has the right of priority compensation by way of execution objection. Related cases: Hunan Hengyang Intermediate People's Court (2021) Xiang 04 Zhiyi No. 99 [Agricultural Bank of China Co., Ltd. Chengdu Xindu Sub-branch, Ye Min Execution Objection], the court held that the objector Agricultural Bank Chengdu Xindu Sub-branch issued full loans in accordance with the "Individual Purchase Guarantee Loan Contract" and paid the corresponding consideration for obtaining the mortgage of the house involved in the case. The house involved in the case has been registered for mortgage, before the seizure of this case, Chengdu Xindu Sub-branch of Agricultural Bank of China did not know about the illegal defects of the house involved in the case, which met the constituent requirements of bona fide acquisition, and the effective judgment has also confirmed its mortgage right of the house involved in the case. Therefore, the objector's request for distribution of the proceeds from the disposal of the house involved in the case conforms to the legal provisions and should be supported. The (II) requires the procuratorial organs to carry out procuratorial supervision over the execution of the court. Article 645 of the Criminal Procedure Rules of the People's Procuratorate, if the People's Procuratorate finds that the property involved in the execution of criminal judgments by the People's Court has one of the following circumstances, it shall put forward corrective opinions in accordance with the law: (5) Damage to the person subject to execution, the victim, interested parties or The legitimate rights and interests of outsiders; "The People's Procuratorate supervises the property involved in the execution of criminal judgments by the People's Courts, and may seal, seize, seize and freeze, the judicial department, case filing department and enforcement department of the people's court shall investigate and verify the transfer, filing and enforcement of the case, and the performance ability of the person subject to execution to relevant units and individuals. (III) appeals against the criminal judgement in force as an outsider Article 15 of the Provisions of the Supreme People's Court on the Partial Enforcement of Criminal Judgments Involving Property. During the enforcement process, outsiders or victims believe that the criminal judgment has made a mistake in determining whether the property involved in the case is stolen money or should be determined but have not been determined. If a written objection is submitted to the enforcement court, the enforcement agency shall transfer the objection materials to the criminal trial department for processing; if it cannot be corrected through the ruling, the objector shall be informed to handle the matter through the trial supervision procedure. Therefore, in the property-related part of the criminal judgment, if the outsider claims to have ownership or bona fide acquisition of the stolen money and goods identified by the criminal judgment, and thus excludes criminal recovery, it is essentially an objection to the relevant judgment of the criminal judgment on the basis of execution, and the dispute should be finally resolved through the supplementary ruling of the criminal trial department or the trial supervision procedure of the outsider. Related cases: Supreme People's Court (2018) Supreme Law Enforcement No. 843 [Wang Chunli and Qu Hui's Application for Recognition and Enforcement of Court Judgments and Execution Review of Arbitration Award Cases]. The court held that Wang Chunli claimed that the property involved in the case was obtained in good faith rather than the property involved in the case that should be recovered. In essence, he did not raise any objection to the execution in the process, but was the basis for execution, that is to say, an objection is raised to the relevant judgment of Dalian Intermediate People's Court (2016) Liao 02 Criminal Judgment No. 17. The objection does not fall within the scope of the execution procedure. Article 15 of the criminal judgment-related property execution regulations stipulates that during the execution process, the outsider or the victim believes that the criminal judgment is wrong in determining whether the property involved in the case is stolen money or should be determined but not determined, and submits a written objection to the execution court, if the correction can be made through the ruling, the enforcement agency shall transfer the objection materials to the criminal trial department for processing; if the correction cannot be made through the ruling, it shall inform the objectors to handle the matter through the trial supervision procedure. According to this regulation, Wang Chunli believes that the Dalian Intermediate People's Court (2016) Liao 02 Criminal Judgment No. 17 has an error in the identification of stolen goods, and can apply for a retrial of the judgment and resolve it through trial supervision procedures. Conclusion For the mortgagee, it is necessary to do its duty of care and caution, can not know that the property is the illegal proceeds of a criminal offence, still in the subject matter of the establishment of a mortgage, not to mention the existence of other false deficiencies in the amount of the claim. At the same time, if the rights and interests of the mortgagee are infringed in the criminal execution stage, the mortgagee should decisively fight for his own legitimate rights and interests, choose the most reasonable and effective way to block the execution procedure of confiscating the mortgage and returning the mortgage in criminal cases, and even change the wrong part of the original criminal judgment in other procedures to safeguard his legitimate rights and interests.

2022-01-24

Effective Defense | After "seven trials", the prosecution was finally withdrawn, and Zhongcheng, Qingtai, Jinan, provided an "effective" defense for a job-related crime case.

On January 18, 2022, a duty crime case in which lawyer Wang Junjie of Zhongcheng Qingtai Jinan Institute served as a defender was withdrawn. The procuratorial organ decided to withdraw the prosecution against the defendant Wang on the grounds of insufficient evidence. The court discussed and made a decision by the trial committee, allowing the procuratorial organ to withdraw the prosecution against the defendant Wang. According to the relevant provisions of the Criminal Procedure Law and the Criminal Procedure Rules of the People's Procuratorate, for cases where the prosecution is withdrawn, the People's Procuratorate shall make a decision not to prosecute within 30 days after the prosecution is withdrawn; no further prosecution shall be carried out without new facts or new evidence. The litigation process of this case can be described as twists and turns. After seven trials by the court, all the litigation procedures set by the Criminal Procedure Law have been basically completed. This case occurred in 2018. After the investigation by a municipal supervisory committee was concluded, the procuratorial organ filed a public prosecution for the defendant Wang's crime of embezzlement; on June 29, 2018, the court of first instance ruled that Wang constituted the crime of embezzlement. After the sentence was pronounced, Wang refused to accept the appeal, and the procuratorial organ also protested. On December 7, 2018, the Intermediate Court of Second Instance ruled to reject the protest and appeal and uphold the original judgment. After the above judgment became legally effective, the defendant Wang filed a complaint, and the intermediate court that accepted the complaint rejected the complaint on March 27, 2019. On November 25, 2019, after the president of the intermediate people's court found that there was a mistake, the intermediate court decided to retry the case and ruled to send it back for retrial. The court of first instance retried the case and rendered a criminal judgment on November 12, 2020, after which the defendant, Wang, appealed against the judgment. On June 23, 2021, the Intermediate Court ruled to rescind the original sentence and send it back for retrial. The court of first instance retried the case in July of the same year. During the retrial, the procuratorial organ made a decision to change the prosecution on September 3 of the same year, reducing the criminal facts and amount of the defendant Wang's occupation, and finally withdrew the prosecution of all the criminal facts and amount of the defendant Wang on January 18, 2022 on the grounds of insufficient evidence. Zhongcheng Qingtai Jinan Institute was entrusted in November 2020 and July 2021 respectively to appoint lawyer Wang Junjie as the defender of the defendant Wang Mou in the second and retrial stages of the first instance. After intervening in this case, the defense lawyer carefully studied the file materials, carefully designed the defense plan, and actively performed the defense duties, and realized the effective defense of the case. The following defense experience can be shared or used for reference: full communication, in-depth reading, active investigation and evidence collection. -- Full communication There is no smooth road and shortcut to achieve effective defense, but full communication, in-depth marking and active investigation and evidence collection are called the "troika" leading to effective defense by the industry ". Effective communication includes communication with the parties, co-counsel and judicial officers. In this case, it was through many meetings with the defendant and his relatives that the defense lawyer had an in-depth understanding of the background and suspicious places of the case, thus obtaining evidence clues for applying for judicial organs to obtain evidence in the second instance stage. The active communication with the original defense lawyer in this case will help to make full use of and learn from the work results of the original defense lawyer, avoid duplication and avoid detours. The defense ideas and defense views of this case are formed on the basis of the defense opinions of the original trial lawyer.. Communication with judicial investigators helps them understand and agree with the defense point of view. After all, the lawyer's defense statement will only work if it is recognized and accepted by the court. Otherwise, it will only be a waste of text and a sigh. It is the active communication with the judge that enables them to initially understand and agree with the lawyer's defense point of view. -- In-depth marking Marking is the basic skill of criminal defense lawyers, and it is also the only way for lawyers to understand the case, find loopholes in the prosecution's evidence, and form defense ideas. In-depth marking is the premise and foundation of effective defense. Marking papers is a hard job, especially in the face of dozens of files in this case, the only hard work is self-knowledge. Marking is not a simple process of reading papers. It embodies professional knowledge, experience and wisdom and inspiration. It can be said that only to a certain extent and depth can we find its wonderful opportunity. After many rounds of marking the case, from rough to detailed to various kinds of evidence one by one, we finally found a key evidence affecting conviction and sentencing-a copy of the IOU. This evidence was in the file from the beginning of the case, but all the personnel ignored it and believed that it was not meaningful as an IOU consistent with other evidence and was auxiliary evidence, however, it is precisely this IOU that shows that the identity of the defendant Wang is the "handler" rather than the borrower (in the guilty verdict, the defendant Wang was found to be the borrower, and Wang also believed that he was responsible for repayment). The "appearance" of this evidence affected the evidence system of the whole case, which was an important reason for the procuratorial organ to think that the evidence in this case was insufficient to withdraw the prosecution. -- Active investigation and evidence collection Generally speaking, procedural defense is the best defense, and evidence defense is the most effective defense in practice. If there is new evidence that affects conviction and sentencing in a case, it means that it is only a matter of time and procedure to change the sentence. In this case, in addition to the "IOU" found in the original file, an evidence clue was also found, that is, the defendant claimed that the money collected from the villagers' shops along the street had been handed over to the land management department through bank transfer (several years have passed), but no record of bank transfer was found, and the land management department also denied receiving the relevant money. The defense lawyer repeatedly asked and even sternly questioned the defendant, hoping that the defendant could truthfully "explain" the whereabouts of the money, but the defendant tried his best to confirm that he had handed it over to the land management department through bank transfer. Where did the money go? The supervisory department retrieved the transfer records of all bank accounts under the defendant's name, but did not find the whereabouts of the money. Finally, based on the defendant's age (more than 50 years old), education (Senior high school), living environment (rural), etc., the defense lawyer inferred that if the defendant's statement is true, then the financial institution to which the transfer is based on the principle of convenience should be in a nearby village and town, and the financial institution should be a common financial institution in the village and town. Based on this criterion, the defense counsel then inferred that the institution to which it transferred the money was likely to be a rural credit union or a postal savings bank. However, the supervisory committees of these two financial institutions have investigated and there is no transfer record. Under what circumstances does the defendant think he has transferred the account but has no record of the transfer? One major possibility is the post office certificate of deposit!!! According to this inference and evidence clues, the defense lawyer submitted an application to the court for new evidence. Under the strong promotion of the presiding judge, the supervisory committee obtained the record of the defendant's handling of large deposit certificates during this period of time, and then obtained the record of a staff member of the land management department taking out the money on the deposit certificates several times. The truth was about to come out. The defendant handled the cash into a certificate of deposit and handed it to a staff member of the land management department. After a long time, he mistakenly believed that he had transferred it to a staff member. The money was finally taken by a staff member. What is even more surprising is that according to the relevant internal policies, the land management department does not charge any other fees except for the cost of the property certificate for the shops along the street in rural areas! At present, the staff member is under investigation for suspected duty crimes and perjury. Of course, the lawyer's defense point of view will only play a role if it is adopted and accepted by the court. The people's court and the people's procuratorate adhere to the principle of "taking facts as the basis and law as the criterion" and fairness and justice, which is the fundamental guarantee for the fair handling of the case.

2022-01-21

Leaders of Jinan Culture and Tourism Bureau visited Zhongcheng Qingtai Jinan Institute for exchange

On January 20, 2022, Director Liu Jianfeng of the Cultural Law Enforcement Detachment of Jinan Culture and Tourism Bureau, Deputy Director Shang Jie and Chief Liu Lin visited Zhongcheng Qingtai Jinan Institute for exchange. Cheng Shoufa, deputy director of Zhongcheng Qingtai Jinan Institute and director of Intellectual Property Center, warmly received the visiting leaders. Director Cheng Shoufa accompanied him to visit the office environment of the law firm, introduced the basic information of the law firm's various functional areas, performance honors, party building work, etc., and focused on the innovative measures of Zhongcheng Qingtai to promote party building in the party member activity room. In the work exchange, the leaders of Jinan Culture and Tourism Bureau expressed their attitude of supporting the rights protection of rights holders in the field of intellectual property and their determination to crack down on illegal activities in the field of culture according to law; Zhongcheng Qingtai law firm will maintain long-term effective communication and exchange in relevant fields, and provide all-round legal service support in the identification of intellectual property infringement and the characterization of illegal acts in the field of culture.

2022-01-21

Real estate perspective: a brief analysis of the conditions for the termination of the cooperative development of real estate contract.

2022-01-20

Real estate perspective: the construction project price priority compensation rules analysis.

1. Introduction In the process of building the socialist rule of law with Chinese characteristics, ensuring the right to survival and maintaining the stability and unity of the rule of law society are the basic requirements for legal practitioners to adhere to the unity of political, social and legal effects. The legal affairs system in the field of construction engineering, especially in the field of real estate construction engineering, is complicated, involving the conflict and protection of the legal rights of real estate developers, construction units, construction workers, actual builders, commercial banks, home buyers and other civil subjects, covering the concept of multi-dimensional rights such as the right to survival and development. It is of great significance to properly deal with the rights of relevant civil subjects in accordance with the law, clarify and determine the priority protection order of different civil rights, and give different civil subjects reasonable expectations of priority or inferior protection of their own rights from a legal point of view. it is of great significance to ensure the construction progress of real estate construction projects and promote the protection of the legitimate rights and interests of different civil subjects in the field of real estate construction projects and the degree of social trust. The construction contractor materializes his labor, materials, etc. into the construction of the project in the most direct way in exchange for the remuneration capital needed to protect his right to survival, and his rights based on the construction of the project should be protected in accordance with the law, and the protection should be limited. Based on the perspective of the priority compensation right of construction project price, this paper focuses on the analysis and summary of the main points of litigation practice on the priority compensation right of construction project price, in order to clarify the concept of rights and litigation practice tendency in the field of construction project and the priority compensation right of construction project price, and to promote the full understanding and effective exercise of the priority compensation right of construction project price by the right holders and relevant legal practitioners. The legal nature of the priority compensation right of the 2. construction project price. 1. Statutory rights that do not require registration Civil rights can be divided into legal rights and contractual rights based on the manner in which they are created and established. Based on the perspective of the current effective law, Article 807 of the the People's Republic of China Civil Code (the "Civil Code") is a legal provision on the right to priority compensation for the price of construction works. The right of priority compensation for the price of construction works is established by the Civil Code in the form expressly provided for by law, does not require a special agreement between the parties to the construction contract, does not require registration and publicity, and is a legal right. 2. Priority protection of rights Civil rights can be divided into priority rights and ordinary rights on the basis of whether protection is given priority or not. The Civil Code stipulates that the right holder of the construction project price shall give priority to the payment of the project discount or auction price, and gives the effect that the construction project price can be realized in priority over the ordinary right. 3. Typical contractual rights Civil contracts can be divided into typical contracts and atypical contracts based on whether the name is uniformly determined. The construction contract is a typical contract under the "Construction Contract" section of the Civil Code. The right to priority compensation for the construction project price occurs in the construction project contract and is a typical contract right. 4. from rights Civil rights can be divided into sovereign rights and subordinate rights based on the standard of master-subordinate relationship. The existence, determination and expiration of the claim for the construction project price is a prerequisite for the enjoyment and exercise of the right of priority compensation for the construction project price. If the claim for the price of the construction project is extinguished as a result of the completion of the performance, the priority right to be paid for the price of the construction project shall be extinguished. The priority right to be paid for the construction project price belongs to the subordinate right of the main right to claim the claim of the construction project price. 5. Non-security interests Based on the type of object of rights, civil rights can be divided into claims and property rights. The priority compensation right of the construction project price points to the price of the construction project and the project discount or auction price, which belongs to the property right, but does not belong to the legal mortgage, quality right or lien type of security right. In summary, the right to priority compensation for the construction price is a non-security interest that does not need to be registered as a statutory right of priority protection in a typical contract. 3. construction project price priority compensation right priority In the theory of civil law, due to the difference of the nature of the right, the legal protection effect of real right and creditor's right is different, and the real right takes precedence over the creditor's right. However, based on the consideration of public interest and other factors, there is a situation where claims take precedence over property rights. 1. Priority of demolition and resettlement The first paragraph of Article 7 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" (referred to as the "Judicial Interpretation of Commercial Housing Sales Disputes") (Fa Shi [2003] No. 7) implemented on June 1, 2003 It is the priority of the demolition and resettlement person, also known as the source of legal basis for the priority of the special creditor's rights of the demolished person. The Judicial Interpretation of Commercial Housing Sale Disputes (Fa Shi [2020] No. 17) implemented on January 1, 2021 deleted the above provisions. Based on the principle that the law is not retroactive, the priority of the demolition and resettlement of the demolished person that has effectively existed before the implementation of the new judicial interpretation should not be denied, and its effectiveness should continue to be protected by law. The right to compensation for demolition and resettlement enjoyed by the demolished person in accordance with the law is the transformation of the property rights of the demolished. The demolition compensation and resettlement agreement is a reciprocal contract, which essentially means that the demolisher exchanges a specific house for the demolished house of the demolished person, and the house is exchanged for the house to guarantee the basic living and living needs of the demolished person. A clear agreement on the specific location and use of the compensation and resettlement house is a prerequisite for the establishment of the priority of demolition and resettlement. The priority of demolition and resettlement takes precedence over the rights of consumers of commercial housing and the priority of compensation for the price of construction projects. 2. The rights of consumers of commercial housing Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court, Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Prices (hereinafter referred to as "Reply on the Priority of Compensation for Construction Project Prices", abolished on January 1, 2021) (Fa Shi [2002] No. 16), and the Executive Office of the Supreme People's Court on<最高人民法院关于建设工程价款优先受偿权问题的批复>The reply on how to understand the provisions on giving priority to the protection of consumers' rights ([2005] Zhihe Zi No. 16) and the reply of the Supreme People's Court to the request for instructions from the Shandong Provincial Higher People's Court on the dispute over the housing sales contract of Jinan Caishi Villa ((2014) Zhihe Zi No. 23 and 24) are the sources of legal basis for the rights of commercial housing consumers. The term "rights of commercial housing consumers" comes from the "Minutes of the National Court Civil and Commercial Trial Work Conference" (referred to as the "Minutes of the Nine People's Conference") "126. [The relationship between the rights of commercial housing consumers and mortgage rights]", also known as consumer-type The priority of home buyers. According to the above provisions, buyers who have signed a purchase contract, used for the sole residential use, and have paid more than half of the contract price, their right to claim the delivery of the house, the right to return the purchase price in the case of the house has not been completed, etc., is protected by law, and takes precedence over the contractor's right to receive priority compensation for the construction project price. 3. Security interests In accordance with the provisions of the fourth division of the Civil Code, "Security interests" and the principle of property law, security interests include only mortgages, pledges and liens. The right of priority compensation of the construction project price has the value of security for the realization of the claim of the construction project price, but it does not belong to the category of security right, which can be referred to, but the provisions of the civil code security right can not be generalized. For example, the establishment of the right of priority compensation for the construction project price is not conditional on the delivery, lien or registration of the right of priority compensation for the construction project price. According to the provisions of Article 36 of the Interpretation (I) of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts (hereinafter referred to as "Judicial Interpretation I of Construction Disputes") (Fa Shi [2020] No. 25), the priority of compensation for the construction project price takes precedence over the mortgage. If there is not only the contractor's right of priority compensation for the construction price of the same construction project, but also the mortgage right of the construction project of the commercial bank, the priority compensation right of the construction project price takes precedence over the mortgage right. 4. Employee claims The first paragraph of Article 113 of the the People's Republic of China Enterprise Bankruptcy Law (the "Bankruptcy Law") is the main source of legal basis for employee claims. In the field of bankruptcy reorganization of market entities, employee claims include the wages and medical, disability subsidies, and pension expenses owed by the bankrupt, and the basic pension insurance and basic medical insurance expenses that should be transferred to the employee's personal account, as well as laws, The compensation that administrative regulations stipulate that it should be paid to employees also includes the pre-acceptance of employee fund-raising and the third-party advance of non-wage protection funds after acceptance. After acceptance, the third party of the wage protection fund advances the employee's claim, which is the subordinate employee's claim, and after the employee's claim is settled according to the property distribution plan, it takes precedence over the ordinary claim. Correspondingly, non-employee fund-raising before acceptance and third-party advances to employees before acceptance are ordinary claims. Post-acceptance of employee fund-raising and post-acceptance of non-employee fund-raising are common debts. According to the Supreme People's Court's Application.<中华人民共和国企业破产法>Article 3, paragraph 2, of the (II) on Certain Issues provides that security interests take precedence over employee claims and employee claims take precedence over ordinary claims. 5. Tax Priority Articles 45 and 46 of the the People's Republic of China Law on the Administration of Tax Collection and Article 113, paragraph 1, paragraph 2, of the Bankruptcy Law are the source of the legal basis for tax priority. Because taxes take precedence over unsecured claims, I .e. ordinary claims, tax claims have the legal effect of taking precedence over ordinary claims to be paid off, so they are called tax priority. In general, mortgages, pledges, and liens take precedence over tax priority, I .e., security interests take precedence over tax priority. Based on the information disclosure measures such as the taxpayer's tax arrears announcement system, the taxpayer's obligation to explain the tax arrears, and the security interest holder's right to investigate the tax arrears, the security interest holder should be aware of the defects in the rights of the security when accepting the security provided by the debtor, and can properly exclude the good faith of the security interest holder without knowledge. Therefore, if the tax priority occurs before the security right, the tax priority takes precedence over the security right. In accordance with Article 8 of the the People's Republic of China Enterprise income tax Law and Articles 34 and 35 of the regulations on the implementation of the the People's Republic of China Enterprise income tax Law, enterprises are allowed to deduct wages and salaries, basic social insurance premiums and housing accumulation funds when calculating taxable income. The deduction covers the claims of employees in insolvency proceedings. After deducting the employee's claim, the enterprise calculates the tax payable, forming a tax claim that takes precedence over ordinary claims. Therefore, the employee's claim takes precedence over the tax priority. 6. Ordinary claims According to the provisions of Article 118 of the Civil Code and the principle of equality of creditor's rights, the legal effect of creditor's rights formed by contract, infringement, etc. shall not be divided into advantages and disadvantages due to the order of establishment, and shall be equally protected by law. There is no distinction between the common claims that coexist, and there is no distinction between priority or inferiority, and the various priorities are unified. 7. Defects in rights (1) Lease According to the provisions of Article 725 and Paragraph 1 of Article 726 of the Civil Code, Article 14 and Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in Hearing Cases of Disputes over Urban Housing Lease Contracts (Fa Shi [2020] No. 17), and Article 28 of the Provisions of the Supreme People's Court on Auction and Sale of Property in Civil Execution by People's Courts (hereinafter referred to as "Provisions on Auction and Sale and Sale"), the lease cannot prevent the realization of the mortgage that has been established before the lease, and the people's court shall remove the lease that has an impact on the realization of the mortgage, and the lessee shall have the right of priority purchase under the same conditions. Because the right of priority compensation for the construction project price takes precedence over the security right, the lease on the construction project cannot prevent the realization of the right of priority compensation for the construction project price. (2) Preservation According to the Supreme People's Court's Application.<中华人民共和国民事诉讼法>According to Article 157 of the Interpretation and Article 28 of the Provisions on Auction and Sale of Property, the preservation of property shall not affect the realization of the real right for security, and the proceeds from the auction of property shall give priority to the settlement of the claims of the security interest holder and other priority recipients. Because the priority compensation right of the construction project price takes precedence over the security right, the property preservation measures of the construction project shall not affect the realization of the priority compensation right of the construction project price. (3) Transfer With reference to Article 206 of the Civil Code, the Supreme People's Court on the Application<中华人民共和国民法典>Article 43, paragraph 2, of the Interpretation of the Security System (the "Judicial Interpretation of the Security System") stipulates that the mortgaged property may be transferred during the mortgage period, and the mortgage right shall not be affected after the transfer, unless the registration publicity prohibits or restricts the transfer of the mortgaged property. The priority compensation right of the construction project price has the function of guarantee, and the effect of the transfer of the construction project on the priority compensation right of the construction project price may be determined by reference to the above-mentioned provisions. From the time when the contractor begins to fulfill its construction obligations, materialize the labor of construction workers and the value of engineering equipment and materials into the construction project, and the contractor shall fulfill its obligation to pay the price of the construction project, the construction project shall provide the legal guarantee function for the contractor's claim for the construction project price. The right of priority compensation for the construction project price is a legal right that does not require registration and publicity, and the contractor has the right to transfer the construction project in accordance with the law, and if the construction project is transferred, the right of priority compensation for the construction project price is not affected, and the contractor may claim the right of priority compensation for the construction project price from the transferee in accordance with the law. 8. Agreed waiver or limitation According to the provisions of Article 42 of the judicial interpretation of the construction project dispute, the right of priority compensation for the construction project price is the right enjoyed by the construction project contractor in accordance with the law. According to the principle of autonomy, the contractor shall have the right to dispose of his rights according to his own will and decide to waive or restrict the exercise of the right of priority compensation for the price of the construction project. According to the principle of good faith and credit, the legislative purpose of the priority compensation right of construction project price is to protect the right of survival of construction workers, and the contractor shall be bound by the legislative purpose of the priority compensation right of the construction project price. The contractor shall not waive or restrict the exercise of the right of priority compensation for the construction project price in violation of the purpose of the legislation, for example, by promising to the contractor to waive the right of priority compensation for the construction project price after the completion of the payment of the construction worker's remuneration, which is valid in accordance with the law because it does not harm the interests of the construction worker. The contractor abandons or restricts the exercise of the right of priority compensation for the construction project price against the legislative purpose, such as unilaterally promising to the contractor or maliciously colluding with the contractor to waive the right of priority compensation for the construction project price when the contractor is under pressure from the loan bank when applying for the mortgage loan for the construction project, requiring the contractor to issue a commitment to waive the right of priority compensation for the construction project price, it is invalid according to law because it seriously damages the interests of construction workers. 4. Construction project price priority compensation right subject. </中华人民共和国民法典></中华人民共和国民事诉讼法></中华人民共和国企业破产法></最高人民法院关于建设工程价款优先受偿权问题的批复>

2022-01-15