Viewpoint | From an intentional injury case to see "intentional injury"

1. brief Sun is an employee of a certain industrial and commercial bureau. He found Shen, the director of the bureau, because of work problems and asked Shen to solve the problem for him. Shen mou has arranged to go out to receive guests, so he asked sun mou to come back in the afternoon and prepare to go out by bus. Sun did not agree, insisted on letting Shen solve the problem for him now, and grabbed the rearview mirror of Shen's vehicle to prevent him from leaving. Several colleagues from the same unit came to persuade Sun to let go of the rearview mirror and let Shen receive the guests first, but Sun did not let go and insisted that Shen solve the problem. Seeing this situation, Shen decided to let others go out to receive guests instead of himself, and invited Sun to go to the unit canteen for lunch with himself. Sun still disagreed, and Shen went to Sun to pull Sun to the canteen for dinner. Sun disagreed and pushed Shen's chest. Later, Shen and Sun both fell to the ground. When Shen fell, his right wrist landed first. The hospital film showed that Shen had a comminuted fracture of his right wrist. After injury identification, Shen's right wrist comminuted fracture constitutes minor injury grade II. 2. jurisprudence analysis The crime involved in this case is the crime of intentional injury, and its basic meaning is: the perpetrator's illegal injury to others causes the consequences of minor injury or more, and the perpetrator has a hopeful or laissez-faire attitude towards the consequences of the injury, which constitutes the crime. In this case, according to Sun's confession, he broke off the mirror of the car, and Shen pulled him to eat. His hand couldn't hold on to let go, causing both of them to fall. According to the testimony of the victim Shen and other witnesses, when Shen pulled Sun, Sun was between Shen's feet and pushed Shen with his hand, causing Shen to fall. Whether it is Sun's confession, the victim's statement or the witness's testimony, it can be seen that the result of the victim Shen's right wrist injury has a causal relationship with Sun's behavior. In this case, it is necessary to further examine whether Sun's subjective aspect has intentionally hurt Shen. In the view of some judicial officers, any misconduct (such as minor violence or general assault) may cause harm, and the perpetrator is aware that his or her actions will result in harm. That being the case, the perpetrator nevertheless committed misconduct, indicating that the perpetrator wished or allowed the outcome to occur. Thus, as long as a certain act causes minor injury, the perpetrator bears criminal responsibility for the crime of intentional injury. However, from a conceptual point of view, this approach is a remnant of the responsibility for the result, that is, as long as the victim is slightly injured, even if the perpetrator is not intentional or even negligent, the perpetrator must be held criminally responsible for the crime of intentional injury. From the theory of criminal law, this kind of practice adopts the abstract conformity theory in the intentional judgment. Article 14 of my country's "Criminal Law" stipulates: "Those who know that their actions will result in harm to society, and hope or allow such results to occur, thus constituting a crime, are intentional crimes." The "own behavior" refers to the concrete behavior that causes harmful results, rather than the behavior in the abstract general sense. Even in the abstract sense, minor violence or general assault may cause minor injuries, but the behavior is always performed in a specific time and space. Moreover, from the general social experience, the vast majority of minor violence or general beatings are difficult to cause minor injuries. When the perpetrator carries out minor violence or general beating on a specific object, especially when the behavior is not continuous and continuous, and only pushes or hits, even if minor injuries are caused, the perpetrator should not be deemed to have intentional injury. The Supreme People's Procuratorate's evaluation of the Fuzhou Zhao Yu case believes that "although there is a serious injury result, the intention of injury cannot be introduced", and this serious injury result is not deliberately pursued by Zhao Yu subjectively, but the result of negligence. Specific to the case of sun suspected of intentional injury, we can see whether sun has "criminal intention to hurt Shen" subjectively from the following two aspects ". On the one hand, Sun's purpose of looking for Shen that day was to let him solve his work problems, not to hurt Shen. The result of Shen's injury is not only not what he subjectively pursues, but also what Sun subjectively rejects; on the other hand, even if Sun stumbles Shen with his foot and pushes him with his hand, it will not cause harm to others under normal circumstances. It is difficult for Sun to foresee that Shen's comminuted fracture of his right wrist after falling to the ground constitutes a minor injury. Moreover, the physical condition of the victim Shen in this case is not special. In this case, it is difficult to determine that Sun has the intention of "knowing that his behavior will result in bodily harm to others, and hoping that others will be physically harmed. In other words, Sun is only negligent in the minor injury to the victim, but the act of causing minor injury through negligence does not establish a crime. Therefore, Sun's behavior should not be treated as a crime. Summary Compared with the Zhao Yu case, Zhao Yu's behavior of stepping on and kicking others in the abdomen was found not to have the intention of injury, and in this case, Sun's tripping or pushing was even more not found to have the intention of injury. In addition, when the cause of the victim Shen's injury is unknown and Sun does not plead guilty, it is not appropriate to determine that Sun's behavior is suspected of intentional injury.

2021-12-15

Lawyers Zhai Xiujuan and Zhou Peng of Dezhou Institute attended the 8th plenary meeting of Dezhou Youth Federation

On December 14, the plenary meeting of the Eighth Committee of Dezhou Youth Federation and the Sixth Congress of Dezhou Student Federation opened. Founded in 1980, Dezhou Youth Federation is a patriotic united front organization for young people of all ethnic groups in Dezhou. Zhai Xiujuan, a lawyer from Shandong Zhongcheng Qingtai (Dezhou) Law Firm, was invited to attend the conference as a member of the 7th Youth Federation and Zhou Peng as a specially invited member. The conference summarized the work of the Municipal Youth Federation and the Federation in recent years, and studied and determined the work tasks for the next five years. Liu Shaohua, deputy secretary of the Provincial Youth League Committee and chairman of the Shandong Youth Federation, attended the opening ceremony of the conference and delivered a speech. The provincial party committee and the Provincial Youth Federation of the delegation expressed warm congratulations on the convening of the conference, and extended cordial greetings and best wishes to the young people of all ethnic groups and all walks of life in Dezhou. Yuan Yangang, deputy secretary of the municipal party committee, attended the opening ceremony of the conference and made an important speech. Secretary Yuan hoped that the vast number of young people and young students in the city would strengthen their ideals and beliefs and strive to be an example of fulfilling their original mission. We should study and practice diligently and strive to be an example of heavy responsibility and courage. We should make good use of the opportunity platform and strive to be an example of innovation and entrepreneurship. Chen Puping, deputy director of the Standing Committee of the Municipal People's Congress, Li Jiarui, deputy mayor, and Cai Yupu, vice chairman of the CPPCC attended the opening ceremony of the conference. The conference reviewed and approved the work report of the seventh members of the Dezhou Youth Federation, and elected Zhang Fangrui as the chairman of the eighth Youth Federation by voting. At the same time, the vice chairman, secretary-general, and standing committee of the eighth Youth Federation were elected and elected. Lawyer Zhai Xiujuan of Dezhou Institute was elected as a member of the new Youth Federation Presidium. The conference made it clear that the youth federations at all levels in the city should follow the spirit of the 19th National Congress of the Communist Party of China and the 2nd, 3rd, 4th, 5th, and 6th Plenary Sessions of the 19th National Congress of the Communist Party of China as a guide, and thoroughly implement the socialist ideology with Chinese characteristics in the new era. The Federation aims to serve the youth and give full play to its role as a bridge, and create a new situation in the work of the youth federation.

2021-12-15

Xi Bao | Zhongcheng Qingtai Lawyers Achieve Good Results in 2021 Provincial Lawyer Outstanding Paper Selection

In 2021, a total of 143 outstanding award-winning papers were selected by the professional committee of the provincial lawyers association, including the preliminary evaluation of the professional committee of the provincial lawyers association, the examination of the repetition rate of the papers and the evaluation of the expert group. a total of 12 law firms in the province won the excellent organization award. Among them, Zhongcheng Qingtai (Jinan) Law firm and Zhongcheng Qingtai (Qingdao) Law firm both won the Outstanding Organization Award, and 19 papers written by Zhongcheng Qingtai lawyers won the award, including 2 first prizes, 7 second prizes and 10 third prizes. Zhongcheng Qingtai has always attached great importance to the construction of the professional ability of lawyers, actively guiding lawyers to improve their professional ability and guiding business practice with theoretical research. It has made good achievements in the selection of lawyer papers for many years. The achievement of these honors is a full affirmation of the professional level and professional ability of Zhongcheng Qingtai lawyers. The list of winning papers is as follows: ● Tang Xiangdong and Chen Xiuyu (Jinan Institute): First prize in criminal category of "Preliminary Study on Remote Video Testimony System in Criminal Proceedings; Yuan Jian, Guan Xin (Jinan Institute): "Legal and Economic Analysis of the Principle of No-Fault Liability-Taking the Damage caused by Raising Animals as an Example" First Prize in Civil Affairs; ● Li Jiaheng (Jinan Institute): "Research on the Identification and Processing Path of" Consulting "Government Information Disclosure Applications" Second Prize in Administrative Category; Ren Guanghui (Weifang Institute): "On the Civil Code Mortgage Registration System" second prize in the civil category; ● Wang Yang Bai Xue (Jinan Institute): Second Prize in Litigation Category of "Analysis of Applicable Procedures for Changing and Adding Executing Subjects; Zhou Qiong and Zhang Kangle (Dezhou Institute): Second prize in the litigation category of "Practice and Reflection on the Application of Selective Litigation Claims in Civil Litigation; ●Gao Rongrong and Zhang Qi (Qingdao Institute): Second prize in the category of "Research on my country's Genetically Modified Food Traceability System" serving economic and social development; ● Li Chen and Song Yunfeng (Qingdao Institute): Second prize in the category of "Research on the Compensation Mechanism of the Forbidden Grazing Policy" serving economic and social development; ● Gong Lixin, Ning Hancheng, and Li Jiahe (Qingdao Institute): "A Comparative Study of Domestic and Foreign Statutory Institutional Governance Models-Also on the Optimization Path of the Statutory Institutional System of Qingdao Blue Valley Administration" Second Prize in the category of comprehensively promoting the rule of law. ● Ma Cong (Jinan Institute): "On the Determination of Subjective Knowledge of Drug Crimes" Third Prize in Criminal Category; He Zefeng and Wang Mei (Jinan Institute): Third Prize in the Civil Group of the Trial Practice Research on the Validity of Commercial Factoring Contracts in China under the Framework of the Civil Code; Li Jianqiao (Jinan Institute): Third prize in the civil category of "Research on Electronic Contract Fraud in International Trade; ● Li Haocheng (Jinan Institute): Third Prize in Civil Affairs for "Personal Information Protection in Big Data Era; ● Cheng Fa-shou (Jinan Institute): "Can" Audiovisual Works "under the New" Copyright "End the Dispute between Live Broadcasting Works and Products" Third Prize in Intellectual Property Category; Shi Guangbo and Wang Wei (Jinan Institute): Third prize in the category of financial securities and insurance, "The dilemma of the reform of state-owned financial capital management and the path of the rule of law; ● Li Heng and Han Ning (Jinan Institute): Third prize in real estate construction engineering category of "Empirical Research on Rules of Borrowing Qualification Construction Contract Judgment; ● Xiong Shuanghui and Zhang Ge (Qingdao Institute): Third Prize in Real Estate Construction Engineering Class in "Analysis of the Rights of Actual Constructors under the Situation of Borrowing Construction Qualification and subcontracting; :: Wang Lanxu and Zhu Xiaojun (Qingdao Institute): Third Prize in the Company Class, "The Premise of Trust and Protection of the Principle of Publicity-The Choice and Balance between the Term Interests of Shareholders and the Realization of the Rights and Interests of the Company's Creditors under the Model of the Company's Registered Capital Subscription System; ● Chen Yuzhong (Jinan Institute): Third Prize in Family Category of "Research on the Framework of Informed Guardianship Agreement.

2021-12-15

(I) of Vision of Administrative Litigation | Scope of Administrative Litigation

Foreword The scope of administrative litigation is an important theoretical and practical issue in administrative litigation. In short, it refers to which cases the people's court can accept as administrative cases. It determines which administrative actions citizens, legal persons and other organizations in administrative legal relations can bring administrative litigation relief, and also determines the scope of administrative power restricted by judicial power. The Concept and Nature of the Scope of Accepting Cases in 1. Administrative Litigation The scope of accepting cases in administrative litigation refers to the scope of accepting administrative cases by the court, that is, the jurisdiction of the court to accept and try administrative cases. From the point of view of the judicial power of the court, it refers to the judicial review power of the court over which administrative acts of the administrative organ; from the point of view of the administrative organ, it refers to which acts of the administrative organ will be supervised by the people's court; from the point of view of the administrative counterpart, it means that the counterpart can sue the people's court when he is not satisfied with which administrative acts. Not all administrative disputes can bring administrative litigation to the court. Only when the administrative dispute is within the scope of accepting cases stipulated by law, the administrative relative can bring administrative litigation. The scope of accepting cases is an important issue in administrative litigation and an important symbol that distinguishes administrative litigation from other litigation. The scope of administrative litigation cases accepted by the people's courts determines the scope of supervision by judicial organs over the actions of administrative subjects, the scope of administrative litigation brought by citizens, legal persons and other organizations infringed by administrative subjects, and the scope of the power of final administrative adjudication. 2. Legal Provisions on the Scope of Accepting Cases in Administrative Litigation On the whole, China's current legislation uses a combination of generalization, positive and negative enumeration to provide for the scope of administrative litigation. (I) General Provisions The first paragraph of Article 1 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's the People's Republic of China of China (Law Interpretation No. 1 [2018], hereinafter referred to as the "Interpretation of the Administrative Litigation Law") stipulates in a general manner the scope of administrative litigation, that is, "Citizens, legal persons or other organizations that are dissatisfied with the administrative actions of administrative agencies and their staff and file lawsuits in accordance with the law shall fall within the scope of the people's courts". (II) the positive list and cover the bottom. Article 12 of the the People's Republic of China Administrative Procedure Law (amended in 2017, hereinafter referred to as the "Administrative Procedure Law") stipulates the scope of administrative litigation accepted by the people's court in two paragraphs by specifically enumerating and covering the bottom, that is, "the people's court shall accept the following lawsuits brought by citizens, legal persons or other organizations: (1) those who are not satisfied with administrative penalties such as administrative detention, temporary suspension or revocation of permits and licenses, order to suspend production or business, confiscation of illegal gains, confiscation of illegal property, fines, warnings, etc.; (II) those who are not satisfied with administrative compulsory measures such as restriction of personal freedom or the seizure, seizure or freezing of property; (III) the administrative organ refuses or fails to reply within the statutory time limit for the application for administrative license, or refuses to accept other decisions made by the administrative organ on administrative license; (IV) refuses to accept the decision made by the administrative organ on confirming the ownership or right to use of natural resources such as land, mineral deposits, water flows, forests, mountains, grasslands, wastelands, beaches, sea areas, etc.; (V) refuses to accept the decision on expropriation, requisition and compensation; (VI) the administrative organ refuses to perform or fails to reply to the application for the administrative organ to perform its legal duties of protecting personal rights, property rights and other legitimate rights and interests; (VII) believes that the administrative organ infringes on its management autonomy or rural land contractual management right or rural land management right; (VIII) believes that the administrative organ abuses its administrative power to exclude or restrict competition; (IX) believes that the administrative organ illegally raises funds, apportions expenses or illegally requests to perform other obligations; the (X) believes that the administrative agency has not paid pensions, minimum living security benefits, or social insurance benefits in accordance with the law; (11) It believes that the administrative agency has not performed in accordance with the law, failed to perform in accordance with the agreement, or illegally changed, or terminated the government franchise agreement, and the land and house expropriation compensation agreement And other agreements; (12) It is believed that the administrative agency infringes other legal rights and interests such as personal rights and property rights. In addition to the provisions of the preceding paragraph, the people's court shall accept other administrative cases that may be brought by law and regulations." (III) negative provisions Article 13 of the Administrative Litigation Law lists in a negative way the matters that are not accepted in administrative litigation, that is, "the people's court shall not accept lawsuits brought by citizens, legal persons or other organizations on the following matters: (1) national defense, foreign affairs and other state acts; (II) administrative regulations, rules or decisions and orders with general binding force formulated and issued by administrative organs; (III) administrative organs' decisions on rewards and punishments, appointment and removal of staff of administrative organs; an administrative act that is finally decided by an administrative organ as prescribed by (IV) law." The second paragraph of Article 1 of the Judicial Interpretation of the Administrative Procedure Law also lists in a negative way the acts that do not fall within the scope of administrative litigation, that is, the following acts do not fall within the scope of administrative litigation of the people's courts: (1) acts carried out by public security, national security and other organs in accordance with the explicit authorization of the Criminal Procedure Law; acts of (II) mediation and arbitration as prescribed by law; (III) acts of administrative guidance; (IV) the repeated handling acts of rejecting the party's complaint against the administrative act; the act of (V) the administrative organ that does not produce external legal effect; the preparation, demonstration, research, layer reporting, consultation and other procedural acts carried out by the (VI) administrative organ for the purpose of making the administrative act; the execution act made by the (VII) administrative organ in accordance with the effective judgment of the people's court and the notice of assistance in execution, however, except for administrative agencies that expand the scope of enforcement or adopt illegal methods; (VIII) higher-level administrative agencies to listen to reports, law enforcement inspections, and supervise the performance of responsibilities to lower-level administrative agencies based on internal hierarchical supervision relationships; (IX) administrative agencies to register for letters and visits, Acceptance, assignment, transfer, review, review opinions, etc; (X) acts that do not actually affect the rights and obligations of citizens, legal persons or other organizations." Types and Characteristics of 3. Administrative Acts According to the above provisions, the actionable administrative acts can be summarized as: specific administrative acts; administrative factual acts; administrative agreements; other administrative cases that can be sued by laws and regulations. (I) specific administrative acts A specific administrative act is an act of administrative law that is unilaterally made by an administrative agency in response to a specific event, has external effects, and contains administrative inaction. Specific administrative acts have the characteristics of unilateral, individual and legal effect. 1. Unitarity. Refers to the fact that the legal effect is based on the unilateral meaning of the administrative organ. The production of legal effect is determined by the administrative organ unilaterally, which is the embodiment of administrative coercive force and reflects the inequality between the two sides of the administration. This is different from the administrative agreement in which the relative person participates in the meaning. 2. Individuality. Refers to the administrative action is made for a specific person, specific events. Generally binding administrative acts that are not directed at specific persons or specific matters are not specific administrative acts, but abstract administrative acts, which are not actionable. 3. legal effect. Refers to the direct external legal effects of the act. Contains the following points: direct, means that the legal effect must occur directly to the relative, once the administrative act is done, it will lead to the creation, change and elimination of the rights and obligations of the relative. Externally, it refers to the legal effect of administrative acts on persons other than the administrative subject, the exchange of views between administrative organs or within administrative organs, internal supervision and guidance and other administrative internal acts are not justiciable due to lack of external nature (see (2017) Administrative Judgment No. 295 of the Supreme Law). In addition, the act produces a legal effect, is legally binding, and aims to generate, change, and eliminate the rights and obligations of the counterpart (including substantive law and procedural law), such as the rejection of the application of the recipient, and only produce The administrative fact that the result is different. Legal validity also includes the characteristics of binding force and compulsion. Administrative acts that do not have legal binding force on the rights and obligations of the relative person do not have legal validity, such as administrative guidance and administrative mediation. (II) administrative factual acts Administrative factual acts can directly produce factual effects. This kind of behavior objectively has no legal effect, subjectively does not produce legal effect. The act itself cannot produce the creation, change and elimination of legal relations in administrative law, nor does its purpose be to produce, change or terminate the rights and obligations of the relative, but only the actual profit and loss in the result. Such as the act of forced demolition, although the result of the demolition caused losses to the relative person, but the purpose of the demolition act is not to create an obligation to the relative person, but in the case of the relative person does not perform the demolition obligation to make a factual act of the pursuit of the result of the fact. The reason why administrative factual acts are included in the scope of litigation is that the administrative factual acts are only uncertain of the rights and obligations of the parties in terms of content, not that they do not affect the rights and interests of the parties in terms of consequences, and their inclusion in the scope of administrative litigation is conducive to protecting the legitimate rights and interests of administrative counterparts and standardizing the law enforcement behavior of administrative personnel. (III) administrative agreement Article 12, paragraph 1, item 11 of the Administrative procedure Law brings administrative agreements into the scope of accepting cases in the Administrative procedure Law. Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases (Fa Shi [2019] No. 17) stipulates the definition of an administrative agreement, and Article 4 includes all disputes arising from the conclusion, performance, modification and termination of an administrative agreement into the scope of accepting cases. Whether an agreement is an administrative agreement or a civil agreement, from the perspective of court judgments in practice, there are three main criteria for judging: first, one of the parties to the agreement is an administrative agency; second, the content of the agreement involves rights and obligations in administrative law; Third, the purpose of the agreement is to achieve public interest or administrative management goals. Other administrative cases that may be instituted in (IV) with the provisions of laws and regulations 1. The administrative acts stipulated in the Administrative Procedure Law include administrative acts made by organizations authorized by laws, regulations and rules. Therefore, even if the subject of the act is not an administrative agency, as long as the act is authorized by laws, regulations and rules, the act is regarded as an administrative act and is actionable. 2. Government information disclosure behavior. Article 51 of the regulations on the Disclosure of Government Information of the the People's Republic of China gives citizens, legal persons or other organizations the right to bring administrative proceedings against the disclosure of government information by administrative organs. 3. Administrative reconsideration cases. Article 5 of the "the People's Republic of China Administrative Reconsideration Law" stipulates the right of citizens, legal persons or other organizations to initiate administrative litigation against administrative reconsideration decisions, except where the law stipulates that administrative reconsideration decisions are final. 4. Administrative compensation. Administrative compensation refers to the legal exercise of administrative power by the administrative subject, which damages the legitimate rights and interests of the administrative counterpart, or when the administrative counterpart damages his legitimate rights and interests for the public interest, the state makes up for the loss of the administrative counterpart. The "Reply of the Supreme People's Court on Accepting Housing Demolition, Compensation, Resettlement and Other Cases" once stipulated: "Citizens, legal persons, or other organizations are related to housing demolition, compensation, resettlement and other issues made by the people's government or the urban housing administrative agency in accordance with their powers. If the ruling is not satisfied, the people's court shall accept a lawsuit as an administrative case." 5. Administrative compensation. Article 2 of the "the People's Republic of China State Compensation Law" stipulates: "If a state agency or a staff member of a state agency violates the lawful rights and interests of citizens, legal persons, and other organizations in the illegal exercise of powers and causes damage, the victim has the right to obtain state compensation in accordance with this law." Article 2 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases" stipulates: "If the compensation claimant confirms that the specific administrative act is illegal but decides not to compensate, or has objections to the determined amount of compensation, the people's court shall accept the administrative compensation lawsuit." 6. Administrative public interest litigation. In the course of performing its duties, the people's Procuratorate finds that administrative organs responsible for supervision and management in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection, transfer of state-owned land use rights, and protection of heroic memorial facilities have illegally exercised their functions and powers or failed to act, resulting in infringement of national interests or social public interests, Procuratorial recommendations shall be made to the administrative organs to urge them to perform their duties in accordance with the law. If the administrative organ still fails to perform its duties in accordance with the law after being urged by the procuratorial organ, and the national interests or social public interests are in a state of infringement, the people's procuratorate shall file an administrative public interest lawsuit in accordance with the law. Characteristics of non-actionable administrative acts in 4. Not all administrative acts are actionable. Combined with the provisions of laws and judicial interpretations and court decisions, non-actionable administrative acts have the following characteristics: (I) administrative act is not directed at a specific person or event and is not actionable. If an administrative act is aimed at an unspecified person, it cannot be sued, but attention should be paid to the judgment of the administrative act of a specific and determined group of people with a large number of people. This type of administrative act is an actionable administrative act. For example, in the case of Huang Shaohua v. Huixian municipal government to raise the pension standard, the pension standard for more than 1700 migrant workers belongs to this group of specific personnel, which should be a specific administrative act and can be sued. Internal acts of (II) administrative organs are generally not actionable. Behaviors such as listening to reports, law enforcement inspections, supervision and performance of responsibilities between administrative agencies, internal meeting minutes, rewards and punishments, appointments and dismissals, and mediation and guidance that are not legally binding and coercive do not directly have legal effect to the outside world. It is actionable. However, when the revocation or change of the original administrative act by the higher administrative organ has a substantial impact on the rights and obligations of the parties, this kind of internal supervision is external and can be sued. For administrative acts that require the approval of a higher authority and are made by a lower authority in the joint name of a higher authority and a lower authority, the approval of the higher authority has been externalized and is justiciable. (III) administrative acts that do not actually affect the rights and obligations of the administrative counterpart shall not be sued. Such acts include the repeated handling of complaints filed by the parties to the administrative act, the execution of the administrative organ in accordance with the effective judgment of the people's court, the notice of assistance in execution, etc., except for the administrative organ's expansion of the scope of execution or the act of assistance in execution in an illegal manner. If the people's government identifies the community as a shantytown, it does not have a substantial impact on the rights of the administrative counterpart and cannot be sued. The act of the government changing the property right of the relative person's house according to the court's notice of assistance is not actionable. However, at the request of other departments, the administrative organ exercises its administrative functions and powers in accordance with its own will, and makes specific administrative acts independently on specific matters, which have a substantial impact on the rights of the administrative counterpart and are actionable. At this time, the requirements of other departments are only the cause of initiating specific administrative acts and are not actionable. (IV) procedural administrative line, not actionable For example, non-performance of procedural obligations such as the service of notice, non-litigation. However, if a procedural administrative act does have an impact on the legitimate rights and interests of the counterparty, and because the final substantive decision cannot be made, the process cannot be made.

2021-12-14

Zhongcheng Qingtai Lawyers Participate in Community Activities to Prevent Internet Financial Fraud

On the morning of December 12, 2021, in order to raise the legal awareness of the masses and effectively prevent the risks of financial and various types of online fraud, under the leadership of the United Front Work Department of the Central District Committee of Jinan City and the Shandong Provincial Committee of the Peasants and Workers Party, Zhongcheng Qingtai (Jinan) Law Firm, together with medical experts from Shandong Financial Assets Trading Center Co., Ltd., Shandong Hemei Psychological Counseling Service Co., Ltd. and Shandong Provincial Hospital in Shunhua Community, caring for the mental health of the masses "into the community activities. Yu Cuilan, director of the Financial Investment Department of Zhongcheng Qingtai (Jinan) Law Firm, Zhao Zhigang, deputy director, lawyers Zhang Shugang, Liu Baoxi, Zhang Hao and Ge Xiaowei, legal assistants Ni Xiaojie, Chen Xiuyu and Han Xiexi participated in the activity. In the course of the activity, the lawyers deeply answered various legal questions raised by the community, combined with practical experience and vivid cases, publicized to everyone the concealment and harmfulness of network and financial fraud in the current society, and put forward effective prevention suggestions, which were unanimously praised by the community.

2021-12-14

Shandong County Law Firm Director Training Course Visited Zhongcheng Qingtai Jinan Institute for Exchange

On December 14, a training course for directors of county law firms in Shandong Province organized by the Party Committee of Shandong Lawyers Industry visited Zhongcheng Qingtai Jinan Institute for exchange. Directors of more than 50 county law firms from all over Shandong Province participated in the activity. Lawyer Shi Guangbo, deputy director of Zhongcheng Qingtai Jinan Institute, warmly received the guests. Director Shi Guangbo accompanied the trainees of the training class to visit the office environment of the law firm, introduced the basic situation of the law firm's functional areas, performance honors, party building work, etc., and highlighted Zhongcheng Qingtai's innovative measures to promote party building in the party member activity room. At the symposium, Director Shi Guangbo elaborated on the development history, law firm culture, market layout, social responsibility and other contents of Zhongcheng Qingtai, and conducted in-depth discussions on improving the enthusiasm of lawyers to participate in public welfare services, law firm business development, risk prevention and control, etc., providing new development ideas for the construction of county law firms in Shandong Province.

2021-12-14

Viewpoint | A brief analysis of the invalidity of serious flaws in the content of the company's resolution

Abstract: China's law adopts the "three-point method" for company resolutions, including non-establishment, invalid and revocable. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. The invalidity of a company resolution is statutory from the beginning and does not apply the statute of limitations. Keywords: company resolution invalid content serious defects The act of corporate resolution is a civil legal act of a certain procedural nature made by the legal person of the company in accordance with the method of discussion and voting procedures stipulated by the law or the articles of association. As a kind of civil legal act, the company resolution must meet the establishment requirements of civil legal act, that is, the resolution must be made by the shareholders' meeting or the board of directors, and the final voting result represents the true intention of the corresponding proportion of shareholders or directors. As the company's intention, the company's resolution can only have legal effect if the procedure and content of the resolution are legal and fair. Our law adopts the "trichotomy" for corporate resolutions, which includes three categories: non-establishment, invalidity and revocability. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. 1. relevant mandatory legal provisions Article 4 of the Company Law "Inherent Rights of Shareholders of a Company (Income from Assets, Participation in Major Decisions, Selection of Managers)." Article 16 "The provisions of the company's guarantee (the guarantee for others shall be resolved by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association, and the guarantee for shareholders or the actual controller shall be avoided by the resolution of the shareholders' meeting or the general meeting of shareholders, and the voting of the shareholders controlled by the above-mentioned shareholders and the actual controller shall be passed by more than half of the voting rights of other shareholders present at the meeting)." Article 20 "The shareholders of the company shall not abuse the provisions of the rights of shareholders. (The rights of shareholders shall not be abused to the detriment of the interests of the company, other shareholders and creditors)", Article 21 "The related relationship to the detriment of the interests of the company." Article 34 "The provisions on the distribution of dividends and the subscription of capital contributions. (Shareholders shall share dividends and subscribe for additional capital contributions in proportion to their actual contributions, unless otherwise agreed by all shareholders.)" Article 16 of the (III) for Judicial Interpretation of the Company Law "Provisions on Reasonable Limitation of Shareholders' Rights. (Failure to fulfill or fully fulfill the obligation of capital contribution or withdrawal of capital contribution, the right to request profit distribution, the right to subscribe for new shares, the right to distribute surplus property, etc. may be restricted in accordance with the Articles of Association or the resolution of the shareholders' meeting)", Article 17 "The provision of disqualification of shareholders. (Failure to fulfill the obligation to contribute or to withdraw all the capital contribution, and failure to make up for it within a reasonable period of time after being urged may disqualify the shareholder.)" Article 59 of the "Civil Servants Law" stipulates that "civil servants shall not take shares and hold posts concurrently." The statute of limitations is not applicable to the lawsuit that the 2. confirms the invalidity of the company's resolution. It is generally believed that the statute of limitations applies to claims and primarily to claims, I .e., the statute of limitations may apply only if the right holder requests a particular act or not for a particular act. The exorcism period applies to the right of formation, the application of the exorcism period is usually expressly provided by law, the law only provides for the application of the exorcism period for the revocation of the resolution, and for the invalidity of the company's resolution. The invalidity of the company's resolution is invalid from the beginning and is not subject to the limitation period. In the second instance of Dong Fangdi v. Zhu Hong Company's resolution dispute ((2018) Hu 01 Min Zhong No. 6946), the court held that the original application of Zhu Hong, Sha Yan and Chen Xiaoying confirmed that the resolution of the shareholders' meeting was invalid, and the object of the application was not the right to claim creditor's rights. Therefore, the limitation of action was not applicable to the original application of Zhu Hong, Sha Yan and Chen Xiaoying. In the second instance of the dispute over the resolution of Yin Yongqiang and Gu Yalin Company ((2020) Ji 01 Min Zhong No. 626), the court held that Gu Yalin's lawsuit in this case was to confirm that the company's resolution was invalid. The court of first instance held that the claim was a right of formation, and the statute of limitations was not applicable and there was nothing improper. Determination of the Eligible Plaintiff 3. to Initiate the Invalidation of the Confirmation Resolution Company resolutions, as internal resolutions, have internal effect only, not external effect. The creditors of the company, as outsiders of the company, are generally not bound by internal resolutions of the company. Under normal circumstances, the company's resolution does not have a direct legal relationship with the creditor, unless the creditor and the company signed a contract with the relevant express agreement, otherwise, the creditor has no practical legal interest in intervening in the dispute over the validity of the company's resolution. A shareholder in the legal sense refers to a shareholder recorded in the company's register of shareholders and registered by the company's registration authority, and an anonymous shareholder is not a shareholder in the sense of the company law, and generally has no right to independently claim that the company's resolution is invalid until the company confirms its shareholder status. In the civil ruling case of the second instance of the dispute over the confirmation of the validity of the resolution of Anhui Longzhi Construction Investment Co., Ltd. and Anhui Outlets Investment Co., Ltd. ((2020) Wan 01 Min Zhong No. 3867), the court held that although Longzhi Construction Company was no longer a shareholder of Outlets Company in terms of industrial and commercial registration when the resolution of the shareholders' meeting involved in the case was made, Longzhi Construction Company was an industrial and commercial registered shareholder of Outlets Company, and the resolution of the shareholders' meeting also contains the opinions on the transfer of equity of Longzhi Construction Company and the corresponding changes in the equity structure of the company. As a shareholder at the time of the formation of the resolution of the shareholders' meeting, Longzhi Construction Company is an internal member of the company, and its interest in the resolution of the shareholders' meeting is not only in the maintenance of individual rights and interests, but also in the supervision of the legality of the company's actions. Therefore, there is no need to determine the relationship between the resolution of the shareholders' meeting involved in the case and the result of the equity transfer. Even if the existence of the resolution of the shareholders' meeting is not the fundamental reason why the equity of Outlets Company enjoyed by Longzhi Construction Company was transferred to Nikpu Company, which is an outsider, it cannot be used to push Longzhi Construction Company not to have any litigation interest in confirming the invalidity of the resolution of the shareholders' meeting. In the first instance of the dispute over the validity confirmation of the resolution between you zhuofan and Shenzhen huate city construction and development co., ltd. ((2018) yue 0303 min Chu no 12310), the court held that: except shareholders, directors and supervisors, other personnel need to prove that they have a direct interest in the content of the company's resolution before they can be qualified plaintiffs. In this case, the plaintiff was only a general creditor of the defendant, not an insider of the company, nor a bondholder or creditor who may have a voting arrangement, and there was no direct interest between it and the defendant's corporate resolution, but only a contract of debt and debt type with the company as the subject. The contract between the plaintiff and the defendant belongs to the contract between two independent subjects, and the protection can be realized by applying the existing legal system such as contract law or the right of avoidance. The company resolution made by the defendant is only the internal behavior of the defendant, which belongs to the formation process of the will and even the expression of the will of the unilateral subject of the company, and the plaintiff, as a creditor, has no right of action to negate the effectiveness of the defendant's internal behavior. The determination of the qualified plaintiff in the case of the 4. to confirm the validity of the resolution. According to the provisions of relevant laws and judicial interpretations, the litigation of the validity of corporate resolutions in China only includes three types of litigation: the invalidity of the resolution, the revocation of the resolution and the non-establishment of the resolution, and does not include the confirmation of the validity of the resolution. The three kinds of corporate resolution validity litigation stipulated in relevant laws and judicial interpretations are designed to give shareholders who may be harmed by defective resolutions to exercise statutory shareholder relief rights to protect their legitimate interests. However, if the shareholder does not take the initiative to bring a lawsuit in accordance with the above-mentioned provisions of the company law and judicial interpretation, the court shall not directly intervene in the affairs of the company's autonomy through the coercive force of the state. The trial of a lawsuit confirming the validity of a company's resolution requires both formal and substantive examination. When conducting a substantive review, it is necessary to make an empirical judgment from the perspective of the commercial subject, and the result is likely to deviate from the spirit of corporate autonomy. The company law and judicial interpretation do not provide for the confirmation of the validity of the company's resolution, which reflects the careful measurement of the relationship between corporate autonomy and judicial intervention. A court that confirms the validity of a resolution is generally inadmissible. The plaintiff who confirms the validity of the resolution should generally take the interest of the lawsuit as the prerequisite, and the determination of whether the interest of the lawsuit is not only based on the existence of a dispute in the legal relationship of the civil entity, but also on whether the legal relationship in dispute constitutes a dispute or the core legal relationship of the lawsuit. In other words, a contested legal relationship cannot be a prerequisite for other disputes or litigation, but only in this way can it have a confirmed interest and can be sued for confirmation. In the second instance of the civil dispute over the resolution of Guangdong Xinhui Bioenergy Co., Ltd., Beijing Xinhui Bioenergy Technology Co., Ltd., Beijing Qing 'an Hongda Bioengineering Technology Co., Ltd., Dongguan Zhongchang Environmental Protection Investment Co., Ltd., and Guangdong Qingda Venture Capital Co., Ltd. ((2020) Yue 19 Min Zhong No. 2622), the court held that the company law and its judicial interpretation did not explicitly exclude the lawsuit confirming the validity of the relevant agreement. Therefore, whether the parties exercise the right of action has the interest of litigation, it should be distinguished according to the specific objective circumstances of different cases, that is, if the validity of the resolution involved in the case is not confirmed, it will affect the legitimate interests of the parties to the lawsuit to confirm the validity of the agreement, resulting in the unstable relationship between the rights and obligations of the parties. In this case, it has the interest of litigation. In this case, the content of the resolution of the board of directors involved in the case involves the change of the legal representative, which is different from the general business and management resolutions of the company. Because the legal representative is in the special status of the company, if the validity of the resolution involved is not confirmed in time, it may cause confusion or obstacles to the operation of the company. Therefore, the two directors in this case filed a lawsuit to confirm the validity of the agreement involved, which has the interest of litigation and falls within the scope of the people's court. In the civil second instance case ((2020) Yue 19 Min Zhong No. 3269) of the dispute over the validity of the resolution of Dongguan Jiahong Education Technology Co., Ltd. and Huang Dongnan and He Zhipeng Company, the court held that: having the interest of litigation should meet the following requirements at the same time: 1. There is sufficient evidence to prove that the validity of the resolution of the shareholders' meeting is not clear, so there are disputes among shareholders; 2. The right or legal status of the shareholder who brought the lawsuit is in real danger or anxiety due to the unclear effect of the resolution of the shareholders' meeting; 3. The interest of the shareholder's lawsuit for confirmation cannot be covered by other claims for payment. In this case, Huang Dongnan claimed that the resolution of the shareholders' meeting formed by the interim shareholders' meeting on March 1, 2019 was valid, while Jiahong Company and He Zhipeng claimed that the resolution was not valid, and there was a dispute between the two parties over the validity of the resolution. Due to the unclear validity of the resolution of the shareholders' meeting, Huang Dongnan was unable to change to the executive director, supervisor and legal representative of Jiahong Company, and went through the corresponding company change registration, which objectively led to Jiahong Company's chaotic operation and management. Therefore, the Court considers that Huang Dongnan has an interest in litigation for the request to confirm the validity of the resolution, and his lawsuit for the validity of the resolution of the shareholders' meeting falls within the scope of the court's case. The resolution on the removal of 5. shareholders shall meet the requirements of procedural and substantive elements. According to the provisions of Article 17 of the Judicial Interpretation (III) of the Company Law, the company may disqualify a shareholder by resolution of the shareholders' meeting, but the following conditions must be met: 1. The shareholder fails to fulfill the obligation of capital contribution or withdraw all capital contribution; 2. The company has fulfilled the pre-procedure of reminder and given shareholders a reasonable time limit to make up for it; 3. The company made a resolution to delist in the form of a resolution of a shareholders' meeting. In addition, the provisions of this article grant the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions, and on the basis that the actions of the defaulting party have seriously harmed the interests of the company and the rights and interests of shareholders, the defaulting party should not be granted the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions. In the second instance of the dispute over the validity confirmation of the resolution of Guanling lingnan driving school co., ltd. and Lu rongzhi company ((2017) Qian 04 min zong no 750), the court held that Lu rongzhi, Lu rongtao, tan chenglin, Luo xingju and Wang kaixian should urge Wang changmei to pay and pay the capital within a certain reasonable period of time even if they believed that Wang changmei had failed to fulfill his capital contribution obligation. However, the appellant has no evidence to prove that he has fulfilled the above-mentioned reminder obligation, and Wang Changmei can prove that he has fulfilled the obligation of capital contribution, which does not meet the substantive elements of the shareholder's removal. In the second instance of the dispute over the validity confirmation of the resolution between Huai 'an Ye Chen Real Estate Co., Ltd. and He Bing Company ((2019) Su 08 Min Zhong No. 1434), the court held that in this case, Ye Chen Company made a shareholders' meeting resolution to disqualify He Bing as a shareholder on the grounds that He Bing had withdrawn more than its capital contribution of 20 million yuan and was not returned by the company. Now both parties agree that the dispute in this case is whether the appellee He Bing constitutes withdrawal of all, if the entire list is not withdrawn, the resolution of the shareholders' meeting to remove the list shall be invalid for violating the above-mentioned legal provisions. The evidence available to the appellant is not sufficient to prove that the appellee He Bing has withdrawn all the capital contributions of Ye Chen Company, so his resolution of the shareholders' meeting to remove He Bing is invalid due to violation of the provisions of the above-mentioned company law. In the second instance of the dispute over the confirmation of the validity of the resolution between Yu Hanying, Wu Wenbiao and Guangdong Yuehui Environmental Protection Co., Ltd. ((2020) Yue 19 Min Zhong No. 11525), the court held that in this case, Wu Mou 1 also had the situation of withdrawing all capital contributions. According to the legal principles of consistency of rights and obligations, fairness and integrity, that is, Wu Mou 1 had no right to hold a shareholders' meeting, the resolution disqualified Yu Hanying as a shareholder, so the resolution of the shareholders' meeting made by Guangdong Hui Company on May 25, 2020 was invalid, and the trial court made an error in this handling, which was corrected by this court. The resolution of the 6. shareholders' meeting to impose a fine on a shareholder shall be based on the standard and range of the fine clearly stated in the articles of association of the company. After the shareholders fulfill the obligation of capital contribution, they and the company are equal civil subjects, have independent personality between each other, there is no relationship between management and management, the company's shareholders' meeting in principle has no right to impose any punishment on the shareholders. The provisions of the articles of association on the imposition of fines on shareholders at the shareholders' meeting are a sanction measure preset by all shareholders of the company for violating the articles of association, which is in line with the overall interests of the company, reflects the human characteristics of the limited company, does not violate the prohibitions of the company law, and should be legal and effective. However, when the articles of association give the shareholders' meeting the power to impose fines on shareholders, the standard and range of fines shall be clearly defined. In the case of Nanjing AXA Financial Consulting Co., Ltd. v. Zhu Juan's shareholders' meeting resolution fine dispute (Bulletin of the Supreme People's Court, No. 10 (General No. 192), 2012), the court held that in this case, when AXA revised its articles of association, although it stipulated that the shareholders' meeting had the right to impose a fine on the shareholders in the eight circumstances of the first paragraph of Article 36, however, the standard and range of the fine are not clearly recorded in the articles of association of the company, so that Zhu Wei can not make a prior prediction of the consequences of the violation of the articles of association of the company, so the resolution of the interim shareholders' meeting of AXA Company to impose a fine on Zhu Wei is obviously insufficient legal basis and should be considered invalid. Invalidity of 7. violation of voting recusal Voting rights avoidance system refers to the system in which a shareholder or agent may not exercise voting rights in respect of the shares held by him or her when he or she has a special interest in the resolution discussed at the general meeting of shareholders. The "Company Law" only provides for three types of voting rights avoidance situations. Article 16 stipulates that if a company provides guarantees for shareholders or actual controllers, shareholders controlled by the guaranteed shareholders or actual controllers shall not participate in voting; Article 17 The shareholder delisting rules established are only applicable to two types of shareholders who have completely failed to fulfill their capital contribution obligations or evaded all capital contributions; article 124 stipulates that if the directors of a listed company are related to the enterprise involved in the resolution of the board of directors, they shall not participate in the voting.

2021-12-13

The second Yellow River Arbitration Development High-end Forum co-organized by Zhongcheng Qingtai Law Firm was successfully held.

In order to improve the arbitration system to serve the country's major strategic level and create a high-end forum brand for regional development, the "Second Yellow River Arbitration Development High-end Forum" was held in Jinan on December 9. This forum was hosted by Shandong Arbitration Development Promotion Association and Jinan Arbitration Commission, and co-organized by Shandong Internet Media Group and Zhongcheng Qingtai Law Firm. Well-known experts and scholars in the field of arbitration discussed and exchanged the theme of "arbitration reform and development and foreign-related arbitration. Wu Desheng, vice mayor of Jinan Municipal people's Government, Meng Fuqiang, member of the standing Committee of the Shandong Provincial Committee of the Chinese people's political Consultative Conference, director of the Social and legal Committee, and chairman of the Shandong Arbitration Development Promotion Association, and other leaders and guests attended the forum. During the round table forum, Geng Guoyu, president of Jinan Bar Association and director of Zhongcheng Qingtai (Jinan) Law firm, shared and exchanged views with experts and scholars on the spot on issues such as building a high-quality arbitration ecosystem in the Yellow River Basin, building an arbitration mechanism with an international perspective, and enhancing the credibility of arbitration. Lawyers of Zhongcheng Qingtai have been actively participating in the development of arbitration, taking the implementation of arbitration law as the main line, constantly enriching the service mode of arbitration, improving the quality of arbitration service, and providing strong arbitration guarantee for effectively resolving contradictions and improving the level of social governance. This forum fully demonstrates the vision of specialization and internationalization, brings the latest trends in international arbitration and successful reform experience, and will also effectively promote the high-quality development of diversified dispute resolution methods such as arbitration and mediation, enhance the development, attractiveness, competitiveness and influence of arbitration, and speed up the construction of specialization, intelligence, marketization and internationalization of arbitration, so as to provide strong arbitration energy for the healthy development of regional economy and social harmony and stability.

2021-12-11

Zhongcheng Qingtai Law firm signed a strategic cooperation agreement with Tai'an Enterprise and Entrepreneur Federation

On December 9, 2021, under the new situation of comprehensively strengthening the rule of law, promoting enterprise reform and innovation, and high-quality economic development, in order to further strengthen the cooperation between enterprises and legal service institutions and better serve the reform and development of enterprises, Zhongcheng Qingtai Law firm signed a strategic cooperation agreement with the Tai'an Enterprise and Entrepreneur Federation and held legal lectures. Yan Xinjian, former vice mayor of Tai'an City, Zhang Ping, former secretary general of the municipal government, Wei Ping, deputy county leader of the Municipal Market Supervision Administration, Liu Xianjie, director of the Municipal Industrial Economic Development Service Center, Wei Yunqin, deputy director of the Municipal Private Economic Development Service Center, Chu Hu, head of the Capital Market Section of the Municipal Local Financial Supervision Bureau, Wang Xinlin, former director of the municipal government's overseas office, and Zhao Shixin, secretary general of the Federation of enterprises and entrepreneurs attended the signing ceremony, han Honggang, Director of Zhongcheng Qingtai Law Firm, Geng Guoyu, Director of Zhongcheng Qingtai (Jinan) Law Firm, Li Zhenzhong, Deputy Director of Zhongcheng Qingtai Law Firm, Si Jialin, Honorary President of Taian Lawyers Association, Yu Xuedong, Director of Shandong Hualin Law Firm, Zhao Xuan, Deputy Director of Zhongcheng Qingtai (Taian) Law Firm, and heads of enterprises associations of counties and cities and high-tech zones, more than 100 people including vice president, director, chairman of member units, Zhongcheng Qingtai Taian Institute, and some lawyers from Hualin Institute participated in the event. The activity is divided into three parts, the first part is the signing ceremony. Director Han Honggang signed a strategic cooperation agreement with Tai'an Enterprise and Entrepreneur Association on behalf of Zhongcheng Qingtai Law Firm. Subsequently, Geng Guoyu, director of Zhongcheng Qingtai (Jinan) Law Firm, delivered a speech. Director Geng said: In order to respond to the integrated development strategy of Jitai, promote the high-quality development of Jitai, help build the provincial capital economic circle, and give full play to the role of legal services in the integrated development of Jitai, Zhongcheng Qingtai Law Firm set up Taian Branch. In accordance with the integrated management model, Zhongcheng Qingtai General Office will strengthen the standardized management of the Tai'an branch, jointly build an integrated professional team, ensure and improve the professional level of the branch, and give full play to the advantages of the headquarters in terms of scale, professionalism, business, and resources. we will promote the integrated development of the legal service market in the two places and actively serve the integrated development strategy of Jitai. Zhongcheng Qingtai and Tai'an Enterprise and Entrepreneur Federation signed a strategic agreement to establish a strategic cooperative relationship, which is a useful exploration of the integration of legal services in Jitai and Thailand. Zhongcheng Qingtai will take this opportunity to actively serve the economic and social development of Tai'an, relying on the brand, scale and specialty of Zhongcheng Qingtai, and give full play to the platform advantages of large, strong and professional institutions. to provide high-quality and efficient legal services for the vast number of enterprises and entrepreneurs in Tai'an, share high-quality resources, strengthen cooperation and common development. In the following lecture activities, lawyer Li Zhenzhong, deputy director, director of the capital market department and senior partner of Zhongcheng Qingtai Law Firm, accurately explained the impact of the establishment of the Beijing Stock Exchange on corporate financing and listing, as well as the listing procedures of the Beijing Stock Exchange. Zhao Xuan, deputy director of Zhongcheng Qingtai (Taian) Law Firm, explained how enterprises and entrepreneurs identify and prevent legal risks in the context of the implementation of the Civil Code. At the end of the event, Secretary-General Zhang Ping made a concluding speech. Secretary-General Zhang said: This event signed a strategic cooperation agreement between the Tai'an Enterprise and Entrepreneur Association and Zhongcheng Qingtai Law Firm. Director Geng Guoyu made an important speech and listened to Li Zhenzhong. The counseling reports made by lawyers and Zhao Xuan on the listing of enterprises on the Beijing Stock Exchange and the study of the Civil Code, which made everyone greatly inspired and educated, I hope everyone will deepen their study and understanding and guide their work practice. It is necessary to fully understand the significance of the establishment of the Beijing Stock Exchange, seize the opportunity of the state to encourage the expansion of the listing of small and medium-sized enterprises, standardize management in accordance with the law, promote scientific and technological innovation, improve business efficiency, and speed up the pace of enterprise listing; in particular, it is necessary to strengthen cooperation with legal institutions such as Zhongcheng Qingtai Law Firm, so as to manage enterprises according to law, operate according to law, handle affairs according to law, and safeguard rights according to law, so as to jointly create a good legal environment for the stable development of enterprises, and make new contributions to promoting enterprise reform, innovation and high-quality development, and building a strong socialist modern city in an all-round way!

2021-12-11

Point of view | The determination of "toxic and harmful" in the crime of producing and selling toxic and harmful food.

Abstract: The crime of producing and selling toxic and harmful food is an important crime of food safety. The key to the identification of this crime lies in the subjective and objective determination of "toxic and harmful. The objective level requires that the non-food raw materials must be able to cause harm after human consumption in quality, and must reach a certain degree of impact on human health in quantity. The subjective level requires that the perpetrator be aware of the toxicity. Keywords: toxic and harmful knowingly identified The "Criminal Law Amendment (VIII)" has revised and improved the crime of producing and selling toxic and harmful food, increased the penalty, and strengthened the protection of food safety. However, there are still many uncertainties in how to determine "toxic and harmful" in judicial practice. The place. Based on the actual experience of handling cases, this paper makes a detailed analysis of the criteria of "toxic and harmful" from the perspective of criminal law hermeneutics, with a view to benefiting the application of this crime. Objective Level of 1. -- Definition of Toxic and Harmful The key to the identification of the crime of producing and selling toxic and harmful food is "toxic and harmful". If the mixed non-food raw materials are non-toxic and harmless, then it does not constitute a crime. If the mixed non-food raw materials do not meet the safety standards, then it constitutes the crime of producing and selling food that does not meet the safety standards. In the provisions of the crime of producing and selling toxic and harmful food stipulated in Article 144 of the Criminal Law, there is no clear definition of the toxic and harmful nature of food, so it is necessary to carefully interpret "toxic and harmful". So as to correctly delineate the boundaries between crime and non-crime, this crime and the other crime. According to the provisions of the Food Safety Law, food safety means that food is non-toxic and harmless, meets the due nutritional requirements, and does not cause any acute, subacute or chronic harm to human health. From this article, we can conclude that toxic and harmful means that it does not meet the nutritional requirements and causes any acute, subacute or chronic harm to human health. Some scholars also pointed out that "food safety refers to the situation that will not cause any damage to consumers when used by consumers in accordance with the intended use." Therefore, toxic and harmful should be understood as food that causes harm to human health and does not meet the standards for human consumption or drinking. Does this mean that as long as non-food raw materials contain toxic and harmful ingredients can be identified as a crime? In real life, food contains certain toxic and harmful substances is completely normal. At present, there are about three thousand kinds of food additives, and most of them are toxic and harmful, but the country has not banned the addition of additives to food because of these toxicities, because appropriate additives can make food more delicious and more beautiful., The preservation time is longer. Obviously, we cannot think that as long as there are toxic and harmful ingredients in food, we must be recognized as a crime, and we must also clarify the degree of toxicity and harm required. (I) toxic and harmful judgment data Non-food raw materials themselves are toxic and harmful, and they also bring harm to the human body after eating. For those non-food raw materials that are toxic and harmful and will cause harm to the human body after eating, they should naturally be regarded as toxic and harmful. This is not controversial. Non-food raw materials themselves are toxic and harmful, but they will not cause harm to the human body after eating. Do non-food ingredients that are inherently toxic but do not cause harm to the human body after consumption fall within the scope of this crime? The author believes that although this crime is a crime, it does not mean that it does not require any degree of requirement. In this case, because it will not produce results that harm the society, it does not have social harm, and it does not meet the toxic and harmful standards in the crime of producing and selling toxic and harmful food. 3, non-food raw materials itself non-toxic, harmless, but after eating to bring harm to the human body This situation needs to be discussed on a case-by-case. The first is to eat or drink food caused by their own reasons. There are two kinds of situations, one is that consumers eat or drink too large a dose and lead to poisoning. The second is that for those who have a special constitution, their consumption of food containing certain non-food raw materials has caused damage to health, and ordinary people will not cause harmful results after eating. We believe that the above two cases of non-food raw materials do not meet the toxic and harmful standards. The reasons are as follows: first of all, the health problems of the eaters who do not eat or drink food according to the dose are caused by their personal reasons, not by the behavior of the perpetrator. According to the responsibility doctrine, this harmful result can not be attributed to the perpetrator, so it can not be regarded as a crime. Secondly, everyone's physical condition is different. If the eaters have health problems due to their own physical fitness, we naturally cannot pursue the criminal responsibility of the perpetrator. The second is that the non-food raw materials themselves are not toxic but react after compounding, resulting in the production of toxic and harmful substances. This situation needs to be based on the premise that the perpetrator knows that chemical changes will occur and produce toxic and harmful elements. If the perpetrator does not know that it will react to generate toxic substances, it should be regarded as an accident and should not be regarded as a crime. Contrary to this situation, non-food raw materials are inherently toxic, but when non-food raw materials are mixed into food, chemical changes occur between non-food raw materials and food or in the case of compound addition, making food non-toxic. This situation also requires the perpetrator to know that non-food raw materials will produce chemical changes after the addition of food non-toxic, otherwise it is purely accidental coincidence and lead to non-toxic, but the perpetrator's understanding of the error, still constitute the crime, but in this case may be established is the attempted form of this crime. Defining Standard of (II) Toxic and Harmful Through the above discussion of toxic and harmful judgment data, we think that we should grasp the standard of toxic and harmful identification from the two levels of quality and quantity. Qualitative requirements. The non-food material must be capable of causing harm after human consumption. Here to exclude the consumption of personal reasons for the harm caused by the situation. In addition, this crime is a crime does not require the actual harm results, but requires toxic, harmful to be highly closely related to the harm to human health, for those who are toxic but will not cause any harm can not be identified as this crime. amount of requirements. Poisonous ingredients must reach a certain degree of impact on human health. Food should not contain factors that cause harm to human health, but this does not mean that food cannot contain any harmful ingredients, but that the content of harmful ingredients cannot reach the level that can cause harm to human health. Some non-food raw materials themselves are indeed harmful, but their quantity is not enough to cause damage or threat to human health, so this non-food raw material does not meet the requirements of toxicity and harm, and cannot be used as a prerequisite for conviction. 2. the subjective level-the actor should know that it is toxic and harmful. Is toxic and harmful a knowingly content? Some scholars believe that in determining the subjective aspect of the crime of producing and selling toxic and harmful food, the perpetrator can only be required to have knowledge of the incorporation of non-food raw materials, not knowledge of the toxic and harmful nature. If the producers and sellers are required to know the toxicity, it will undoubtedly put forward extremely high requirements for the subjective cognition of the criminal subject, which will bring great difficulties to the identification of the crime. The nature of raw materials, on the other hand, is the basis of the rationality and cognitive rationality of the behavior of producers and sellers. Some scholars have even pointed out that when judging the subjective aspect of the perpetrator, the perpetrator only needs to have a general understanding of the harmful consequences of his own behavior, and does not require the perpetrator to have a detailed understanding of the chemical properties and toxicity of the added substances. According to the general theory of criminal law, whether directly or indirectly intentionally, its "knowingly" is the understanding of the harmful result. Knowing should contain two levels of content: the factual level and the value level. The so-called factual level is that the behavior has an understanding of the facts of its own behavior, including the understanding of the nature of the behavior, the way of behavior, the object of the behavior, the time and place of the behavior, the result of the behavior, etc. Specific to this crime, on the factual level, the actor realizes that he is mixing toxic and harmful non-food raw materials into food or selling toxic and harmful non-food raw materials. On the value level, the actor realizes that the behavior of mixing or selling toxic and harmful non-food raw materials will harm the society. In fact, at the factual level, it can be subdivided into the knowledge of "non-food raw materials" and the knowledge of "toxic and harmful", and it is based on the knowledge of "toxic and harmful" that can identify the actor's knowledge at the value level, that is, the actor can come to the conclusion that it may cause harm to the health of others when he recognizes the toxicity, however, the mere understanding of "non-food raw materials" cannot be established as a result of the harm. This crime, as a criminal act, does not require the reality of the harmful results, as long as the perpetrator has carried out the constituent elements of the act can be identified as a crime, and the criminal law can be separated from the harmful results of the actor's behavior to evaluate, it is precisely because of the high degree of closeness of the act and the harmful results and early intervention. Only the behavior can reflect and harm the results of the close correlation can be identified as a crime. If it is only recognized that the incorporation of "non-food raw materials" does not reflect the high correlation between behavior and harmful results, only by recognizing that the incorporation of non-food raw materials is "toxic and harmful" can the behavior and results be demonstrated. High degree of tightness. It should be noted here that the fact that the elements of the act do not contain the harmful result does not mean that the perpetrator is unaware of the result of his act and the nature of the result. If the crime of invading a house is a typical behavior offender, as long as the perpetrator implements the act of invading another person's house, it should be considered a crime, without asking whether the reality has caused damage to the right of tranquility of another person's house, but the perpetrator has obviously realized that what he implements is the act of invading another person's house and this act will affect the tranquility of another person's house. If it does not include knowing the result of the harm, the perpetrator should also be considered a crime if he only visits the owner's home. The main reason why some people question whether "toxic and harmful" should be known as the content of this crime is that if the perpetrator is required to have an understanding of the harmfulness of the result, he will often use this as an excuse to defend himself. I did not realize that my actions would cause consequences harmful to society, which caused difficulties in intentional identification. The author believes that it is difficult to identify in judicial practice as a reason to deny that "toxic and harmful" is not the known content of this crime. First of all, there are many difficulties in the identification of criminal law. For example, what is a dangerous state is still a question of wisdom, and practice and theory cannot be confused. Secondly, intentional identification is a process of unity of subjectivity and objectivity. It is necessary to listen to the perpetrator's justification, but also to judge objectively. The perpetrator's one-sided statement should not be considered to be subjectively intentional, but also to grasp his subjective guilt through the objective aspect. Secondly, it has been discussed in the previous article that only knowing that "non-food raw materials" does not reflect people's understanding of the harmful results of their behavior. Only when they have an understanding of "toxic and harmful" can they be considered to have recognized the social harmfulness of their behavior. Finally, only by recognizing the "toxic harmfulness" can it reflect the greater subjective malignancy of human beings. Knowing that "non-food raw materials" and knowing that "toxic and harmful" is actually a layered relationship. Only when the perpetrator has a second knowing, can his subjective malignancy reach the level of conviction. As for the view put forward by some people, only the actor needs to have a general understanding of the harmful consequences of his own behavior, and does not require the actor to have a detailed understanding of the chemical properties and toxicity of the added substances. If the perpetrator has already been aware of the harmful consequences of his actions, how can he not be aware of the "toxic and harmful" nature of the non-food ingredients he is mixed with? Since it is admitted that the perpetrator should be aware of the harmful results, it is necessary to admit that he knows "toxic and harmful".

2021-12-11