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Presentation of 1. issues In practice, the developer and the buyer signed the "commercial housing sales contract", in the agreed housing delivery period at the same time, in order to avoid the late delivery of the liability for breach of contract, agreed on a fixed period of extension, the developer does not bear the responsibility for late delivery of breach of contract. Before the implementation of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code), the Intermediate People's Court of Jinan City and the courts under its jurisdiction mostly cited the relevant provisions of the the People's Republic of China Contract Law (abolished, hereinafter referred to as the Contract Law), and tended to think that the agreement on "late delivery of extended period" was legal and effective. The terms on extended period were the agreement of both parties and did not obviously infringe the interests of the buyer, it also does not violate the mandatory provisions of laws and administrative regulations. Both parties shall perform in accordance with the agreement. The starting time for the developer to bear the liquidated damages for overdue house delivery shall be calculated after the expiration of the grace period. However, the Civil Code has made more stringent provisions on the format clause, and will there be a change in the determination of the validity of the late delivery extension period? New Rules on Form Clauses in the Civil Code of 2. Article 496, paragraphs 1 and 2, of the Civil Code Contract Code, respectively, states: "A format clause is a clause that the parties have prepared in advance for reuse and has not negotiated with the other party at the time of the conclusion of the contract." "Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to the terms that have a significant interest in the other party, such as the exemption or reduction of its responsibilities, and explain the terms in accordance with the requirements of the other party. If the party providing the form clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." This provision provides for the format clause and the obligation of the party providing the format clause. Compared with Article 39 of the original Contract Law, the following major amendments have been made: 1. After "taking reasonable measures to remind the other party to pay attention to exemption or reduction of its responsibilities", the content of "clauses with significant interests with the other party" is added. This means that the clauses that exempt or reduce the responsibilities of the party providing standard clauses are not the only clauses that need to be reminded of the other party, and other clauses that have significant interests with the other party also need to be reminded. This obviously expands the scope of drawing the attention of the other party, and all clauses that have a major interest in the other party are within the scope of prompting attention. 2, increase the consequences of not fulfilling the duty of care to remind the other party. Article 39 of the original "Contract Law" does not provide for the legal consequences of not fulfilling the obligation to prompt the other party to pay attention, so it is called "soft obligation". This article supplements this by providing the legal consequences of "if the party providing the standard clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. To advocate that "clauses that have a significant interest relationship with the other party" do not become an integral part of the contract is tantamount to declaring that it does not exist and has no effect. Such legal consequences are sufficient to warn the party providing the standard clauses to exercise utmost care and protect the other party's rights and interests., Also protect your own rights and interests. 3. This article also adds the "unreasonably" restriction language, increasing the circumstances of mitigation of liability, in other words, must achieve unreasonable exemption or reduction of its liability, increase the other party's liability, in order to make the format clause invalid. On the other hand, "excluding the main rights of the other party" is revised to "restricting the main rights of the other party", and the qualification of "unreasonable" is added. In this way, the limitation of the other party's rights and the exemption or reduction of its liability, increase the other party's liability side by side, constitute the same exemption, that is, any unreasonable exemption or reduction of its liability, increase the other party's liability, limit the other party's main rights, will lead to the invalidity of the format clause. In addition, the Civil Code has also adjusted the reasons for the invalidity of the format clause, mainly reflected in: the party providing the format clause unreasonably exempts or reduces its liability, increases the liability of the other party, and restricts the other party's main rights. These circumstances are not expected by the parties to the contract when they conclude the contract, are contrary to the purpose of the parties to conclude the contract, seriously damage the legitimate rights and interests of the other party, and obviously violate the basic principles of civil law, such as the principle of fairness. Therefore, they are all legal causes that lead to the invalidity of the standard clause. As long as one of the circumstances occurs, the standard clause is invalid. 3. related cases (I) 2021 Lu Minshen 974 Commercial Housing Sales Contract Dispute Judgment of Shandong Higher People's Court: After review, this court believes that the "Qingdao Commercial Housing presale Contract" signed by the buyer and the seller is legal and valid, and both parties should perform their contractual obligations. The "Qingdao Commercial Housing presale Contract" clearly stipulates that the delivery date is before March 31, 2019. The supplementary terms of the contract stipulate that the seller fails to deliver the house to the buyer within the time limit stipulated in this contract due to its own reasons, the buyer shall give the seller A 30-day extension period, during which the contract continues to be performed, and the seller does not need to bear the liability for breach of contract to the buyer. The buyer shall exercise prudent care over the contents of the supplementary clause, and the buyer, as a person with full civil capacity, shall be aware of the legal consequences of its signature on the contract, and the buyer shall not support the claim that the clause is a standard clause and that the seller has not fulfilled its obligation of clear notification and presentation. (II) 2021 Lu 01 Min Zhong 6181 Commercial Housing presale Contract Dispute The judgment of Jinan Intermediate People's Court: The commercial housing sales contract and supplementary agreement signed by the original and the defendant are the true intentions of the parties, and do not violate the mandatory provisions of laws and regulations, and are legal and effective. Both parties should fully perform the contract. In this case, the first item of Article 3, paragraph 8, of Annex 5 to the contract signed by the plaintiff and the defendant stipulated a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period. (III) 2021 Lu 0102 Minchu 1295 Commercial Housing presale Contract Dispute The People's Court of Lixia District of Jinan City ruled: The "Jinan City Commercial Housing Sales Contract", "Supplementary Agreement", and "Compensation Confirmation Form" signed by the buyer and the seller are the true intentions of both parties and do not violate the effectiveness of laws and administrative regulations. The mandatory provisions do not violate public order and good customs, and are legal and effective. As a person with full capacity for civil conduct, the buyer is punishing his own rights, and he has not submitted evidence to prove that the seller is in a situation of coercion or taking advantage of the danger of others, so the buyer requires the seller to pay another 90-day penalty, which has no factual and legal basis, and this court does not support it. 4. Lawyer's View The author is inclined to believe that, on the premise that the developer fulfills the obligation to prompt or explain the grace period, the "late delivery extension period" should be considered valid for the following reasons: First of all, before the entry into force of the Civil Code, the Contract Law and its related judicial interpretations contained relevant provisions on standard clauses. Combined with the search of cases before the entry into force of the Civil Code, the determination of "standard clauses" in judicial practice was still With a cautious and conservative attitude, it is determined that the agreement of "late delivery extension period" is legal and valid. The current Civil Code retains some of the provisions of the original Contract Law and related judicial interpretations on "format clauses", and the cases before the entry into force of the Civil Code have certain reference value. For example, in (2021) Lu 01 min zong No. 6177 civil judgment, Jinan intermediate people's court, following the principle of the same case and the same judgment, directly quoted the contents of the judgment of the same court: "regarding the liquidated damages for overdue house delivery, the effect of article 3, paragraph 8, of the supplementary agreement, the civil judgments (2020) Lu 01 min zong No. 9658 and No. 9661 made by Jinan intermediate people's court are as follows: the Supplementary Agreement signed by both parties stipulates a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period." Secondly, on the one hand, the Civil Code makes stricter provisions on the standard clauses, but on the other hand, the provisions also add expressions such as "significant interests" and "unreasonable exemption or mitigation". There is no relevant judicial interpretation to clarify how to define "significant" and "unreasonable", which belongs to the discretion of judges in the process of hearing cases. The author believes that the "significant", "unreasonable" and other qualifiers, to a certain extent, can avoid the risk of "exemption is the format clause. Although the "Supplementary Agreement on Commercial Housing Sales Contract" will exempt the developer from the responsibility for breach of contract for overdue delivery of the house to a certain extent, it should not constitute a situation of "unreasonably exempting or reducing its responsibility and increasing the responsibility of the other party. Finally, as far as both parties are concerned, the main contractual obligation of the buyer is to pay the purchase price on time, and the main contractual right is to accept the house according to the contract; as a developer, its main contractual obligation is to deliver the commercial housing that meets the conditions stipulated by laws and regulations according to the contract. The agreement on the leniency period does not invalidate the contract or clause in Chapter 6, Section 3 and Article 506 of Title I of the Civil Code, nor does it increase the buyer's contractual obligations. It only conditionally exempts the developer from part of the responsibility as the seller, rather than completely or indefinitely exempting the developer from the responsibility of handing over the house. At the same time, the clause still stipulates that if the developer fails to hand over the house within the leniency period, the buyer may still be held liable for breach of contract in accordance with the contract and does not exclude the buyer's contractual rights. Therefore, the agreement of the late delivery grace period should not be recognized as the category of the buyer's "main rights", let alone the buyer's "main rights are restricted or excluded". To sum up, the terms of the extension period are the agreement of both parties, which does not obviously infringe on the interests of the buyers. The agreement of the extension period only delays the time for the developer to assume the responsibility of overdue delivery or exempts the developer from the responsibility of overdue delivery. Part of the responsibility, it does not fall under any of the circumstances of "unreasonably exempting or reducing its liability, increasing the liability of the other party, limiting or excluding the main rights of the other party" as stipulated in article 496 of the Civil Code.
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[brief case]] Zhu Moujia and other three people are the first legal heirs of the deceased in a traffic accident, the insured and driver of an accident vehicle, and the Shanghai branch of a property insurance company is the insurer of the accident vehicle. The traffic police department issued the ''Road Traffic Accident Recognition Letter'', which determined that a vehicle with a certain driving braking performance that did not meet the safety technical conditions and had a safety hazard encountered a pedestrian passing the crosswalk and did not stop to give way; Hou Mouyi did not follow the traffic signal lights. Passing (running a red light), both parties in the accident violated the Road Traffic Safety Law. According to the cause of the accident, it, it, it is determined that both parties bear the equal responsibility for the accident. The plaintiff Zhu Moujia and three others sued to the court, demanding that the Shanghai branch of a certain property insurance company bear the corresponding compensation liability. During the trial, the parties had no objection to the accident and the determination of the responsibility for the accident. The Shanghai branch of a property insurance company argued that it had already delivered the insurance clause to a certain company, and had given this clause a bold and black prompt, and informed the specific content of the exemption clause of a commercial three-way insurance by telephone. According to the aforementioned exemption clause, this case of traffic accident belongs to the situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified". The so-called unqualified inspection includes the unqualified annual inspection of the vehicle and the unqualified inspection after the accident. Therefore, the insurer refuses to bear the commercial insurance limit. Liability. Yu argued that although he had received the insurance clause, the accident vehicle had been inspected annually in accordance with the regulations and passed the annual inspection. There was no problem with the braking of the vehicle before the accident, which was not a case of exemption from insurance liability. He was willing to bear the compensation liability beyond the insurance limit. focus of controversy] Whether this traffic accident is an applicable situation of the commercial three-party insurance exemption clause. The court considered] After hearing, the court held that according to the legal nature of the exemption clause, following the meaning and spirit of Article 15 of the regulations on the implementation of the road traffic safety law, and comprehensively considering other factors such as the legitimate expectation of the insured, the degree of fault of the driver, and the general cognition of the public, the accident in this case does not belong to the case of exemption from insurance liability. The court ruled that the Shanghai branch of a property insurance company should pay the plaintiff 299522.8 yuan for compulsory insurance and commercial insurance. For the insurer's refusal to claim based on the exemption clause of the insurance contract, the trial idea of "from form to reality" and "combination of form and reality" should generally be followed. First of all, in form, it is necessary to examine whether the insurer has fulfilled the obligation of service, prompt and notification of the insurance terms. In this case, the Shanghai branch of a property insurance company has served the insurance terms to the policyholder, in which the exemption clause is also bolded and blackened, and the terms are read out to the policyholder in the form of telephone recording. Therefore, in terms of form, the insurer has fulfilled the corresponding legal obligations. Secondly, in terms of content, the meaning of the contract needs to be interpreted in a manner consistent with the nature of the exemption clause and the legislative intent. According to the insurance clause involved in the case: "When the insured motor vehicle driving license or number plate is canceled in the event of an insurance accident, or fails to inspect or fail to pass the inspection as required" is one of the items exempted from insurance liability. First, as far as the nature of the insurance clause is concerned, it is a form clause provided by the insurer to exempt the insurer from its own obligations, and the understanding of this clause is disputed between the insurer and the policyholder. According to the provisions of the the People's Republic of China Civil Code: if there is a dispute over the understanding of the format clause, it shall be interpreted in accordance with the usual understanding. If there are two or more interpretations of the form clause, an interpretation that is not conducive to the party providing the form clause shall be made. The exemption clause should be interpreted against the insurer. Secondly, in terms of legislative intent, Article 15 of the regulations on the implementation of the Road Traffic Safety Law clearly stipulates that motor vehicle safety technical inspection shall be carried out by motor vehicle safety technical inspection institutions. Based on the meaning of this administrative regulation, the exemption clause refers to "failure to inspect or fail to pass the inspection in accordance with the regulations", which is generally understood to mean that the vehicle is not inspected regularly and in accordance with the regulations to the motor vehicle safety technical inspection institution or the vehicle is inspected by the motor vehicle safety technical inspection institution. The insurer should not make an expansive interpretation of this exemption from its liability after the accident. Third, the insurer should make a substantive and specific detailed description of the content of the insurance exemption clause. Although the insurer orally read out the exemption clause to the policyholder, it did not clearly explain to the policyholder the specific content of the category, subject, method, and time limit of the "inspection according to regulations" referred to in the exemption clause. The insurer shall bear the adverse legal consequences arising from the unclear notification. Finally, in the result, the application of the exemption clause should be consistent with the legitimate expectations of the policyholder and the degree of fault of the actor. In this case, Yu has submitted the accident vehicle for inspection according to regulations and schedule, and passed the inspection. When the accident occurred, it also took the necessary braking measures to actively prevent the occurrence of the accident involved. Although it is recorded in the "Road Traffic Accident Identification Letter" that the braking performance of the accident vehicle does not meet the safety technical conditions and has potential safety hazards, the accident occurred suddenly. It is difficult for a certain vehicle to make accurate self-inspection, evaluation and complete elimination of potential safety hazards in advance. The psychological expectation of taking out commercial triple insurance is also to replace or reduce its own liability for compensation in the event of a traffic accident. Therefore, the exclusion of the aforementioned insurance exemption clause is more in line with the general perception and legitimate expectations of the public. Lawyer Advice] In practice, insurance companies often encounter the need to deal with the customer's vehicle out of danger due to traffic accidents. When making an insurance claim, if it is found that the claim may be "strange" and refused to settle the claim, it is difficult to be identified only on the basis of the "road traffic accident identification" issued by the traffic police department in the lawsuit. Although the ''Road Traffic Accident Recognition Letter'' determines that the accident vehicle does not meet the safety technical conditions and has safety hazards, due to the lack of other evidence to strengthen it, the inspection conclusion after such an accident is usually determined in judicial practice as not belonging to the insurance exemption clause. The situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified. Therefore, in the process of informing the insurer of the relevant exemption clause, the insurance company needs to inform the insurer in detail and comprehensively, and should make a substantive and specific detailed explanation to the policyholder on the content of the exemption clause, and fix and retain the relevant evidence to prevent claims and litigation risks.
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Foreword Company shares are the shares held by shareholders in the company after the establishment of the company, which play an important role in proving the identity of shareholders. The dispute over requesting the company to acquire shares is a common dispute between the company and its shareholders (especially small and medium-sized shareholders) in practice. It occurs when the shareholders disapprove of the specific resolution of the shareholders' meeting. The purpose is to make the company evaluate the value of the shares held by the dissenting shareholders and purchase them at a fair price. Through this lawsuit, the dissenting shareholders are guaranteed to withdraw from the company in a reasonable and fair way of share compensation, while the withdrawal of dissenting shareholders also improves the efficiency of the company's decision-making and ensures the effectiveness of management. This article will analyze the dispute over the acquisition of shares by the requesting company from the aspects of legal provisions, litigation overview, dispute issues and decision rules for reference. Relevant provisions (I) related laws 1. the People's Republic of China Civil Procedure Law Article 26 Litigation arising from disputes over the establishment of a company, confirmation of shareholder qualifications, distribution of profits, dissolution, etc., shall be under the jurisdiction of the people's court of the place where the company is domiciled. 2. Company Law of the People's Republic of China Article 74 Under any of the following circumstances, a shareholder who votes against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price: (I) the company has not distributed profits to its shareholders for five consecutive years, and the company has made profits for the five consecutive years and meets the conditions for distribution of profits as stipulated in this Law; Merger, division or transfer of main property of the (II) company; (III) the term of business as stipulated in the articles of association expires or other reasons for dissolution as stipulated in the articles of association arise, the shareholders' meeting passes a resolution to amend the articles of association so that the company continues to exist. Within 60 days from the date of adoption of the resolution of the shareholders' meeting, if the shareholders and the company cannot reach an equity purchase agreement, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting. Article 142 A company may not purchase its own shares. However, any of the following circumstances shall be excluded: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies is necessary to safeguard the value of the company and shareholders' rights and interests. Where a company purchases its own shares under the circumstances specified in items (I) and (II) of the preceding paragraph, it shall be subject to a resolution of the general meeting of shareholders; where a company purchases its own shares under the circumstances specified in items (III), (V) and (VI) of the preceding paragraph, it may, in accordance with the provisions of the articles of association or the authorization of the general meeting of shareholders, be resolved by a meeting of the board of directors attended by more than 2/3 directors. After the company acquires the company's shares in accordance with the provisions of the first paragraph of this article, it shall be canceled within ten days from the date of acquisition if it falls under the circumstances of item (I); if it falls under the circumstances of items (II) and (IV), it shall be transferred or canceled within six months; if it falls under the circumstances of items (III), (V) and (VI), the total number of shares of the company held by the company shall not exceed 10% of the total issued shares of the company, and shall be transferred or canceled within three years. Where a listed company purchases its own shares, it shall perform its information disclosure obligations in accordance with the provisions of the the People's Republic of China Securities Law. Where a listed company acquires its own shares due to the circumstances specified in Items (III), (V) and (VI) of the first paragraph of this Article, it shall proceed through public centralized trading. (II) relevant judicial interpretation 1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases 21. Disputes related to the company 268, request the company to acquire shares dispute. 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 3 The domicile of a citizen refers to the place where the citizen's household registration is located, and the domicile of a legal person or other organization refers to the place where the main office of the legal person or other organization is located. If the location of the principal office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization shall be the place of domicile. Article 22 Jurisdiction shall be determined in accordance with the provisions of Article 26 of the Civil Procedure Law for lawsuits arising from disputes over records in the register of shareholders, requests for changes in company registration, shareholders' right to know, company resolutions, company mergers, company division, company capital reduction, company capital increase, etc. 3. (I) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 3 When the plaintiff brings a lawsuit to the people's court on the grounds stipulated in Article 22, paragraph 2, and Article 74, paragraph 2 of the Company Law, if the time limit stipulated in the Company Law is exceeded, the people's court shall not accept it. Provisions issued by regional courts in (III) 1. Opinions of the Higher People's Court of Shandong Province on Several Issues concerning the Trial of Company Dispute Cases (for Trial Implementation) 81. In the case of item (I) of paragraph 1 of Article 75 of the Company Law, if the company has not held a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the voting rights of the company may request the company to purchase its shares at a reasonable price. 82. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 83. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. 2. (II) of Opinions of Shanghai Higher People's Court on Several Issues Concerning the Trial of Litigation Cases Involving Companies Issues related to the handling of disputes over shareholders' rights and interests in 3. 3. If the shareholders' meeting of a limited liability company forms a resolution on the merger, division or amendment of the articles of association of the company, and it is difficult to transfer the shares held by the shareholders after the resolution, the shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire its shares. If the company has been profitable for many years and meets the conditions for the distribution of shareholders' surplus as stipulated in the Company Law, but the company does not distribute profits, the shareholders who meet the shares of the company as stipulated in the Company Law shall have the right to request the company to convene a shareholders' meeting to make a resolution; shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire their shares. 3. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues concerning the Trial of Company Dispute Cases (V) limited liability company share repurchase dispute 66. Under the circumstances of Item (I) of the first paragraph of Article 75 of the Company Law, if the company has not convened a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the company's voting rights may request The company acquires its equity at a reasonable price. 67. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 68. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. Other relevant provisions of the (IV) China Securities Regulatory Commission, Guidelines on the Articles of Association of Listed Companies Article 23 A company may purchase its shares in accordance with the provisions of laws, administrative regulations, departmental rules and these Articles of Association under the following circumstances: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies are necessary to safeguard the value of the company and shareholders' rights and interests. Except in the above circumstances, the company shall not purchase the shares of the company. A company issuing preferred shares shall also specify in its articles of association that the option to repurchase the preferred shares shall be exercised by the issuer or shareholders, and the conditions, price and proportion of the repurchase shall be specified. If the issuer requires the repurchase of preferred shares in accordance with the provisions of the articles of association, it must pay the dividends owed in full, except for the issuance of preferred shares by commercial banks to supplement capital. Summary of Litigation Plaintiff: Shareholder Defendant: Company Jurisdiction: by the people's court of the company's domicile Litigation request: 1. The defendant was ordered to purchase the defendant's shares held by the plaintiff at a reasonable price (subject to the assessed price, tentatively xx yuan). 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. Dispute Issues and Judgment Rules (I) Dispute Question 1: How is the price of the acquisition shares determined? Summary of the problem: According to Article 74 of the Company Law, shareholders should adopt a "reasonable price" when requesting a company to acquire shares, and according to the opposition interpretation of this provision, if shareholders do not adopt a "reasonable price" when requesting a company to acquire shares, the company has the right to refuse the acquisition. However, Article 74 of the Company Law does not further specify how to determine the "reasonable price", from the interpretation of the meaning of this provision, the "reasonable price" should be the price agreed by both parties, but not necessarily the price expressly agreed in the articles of association. For the company and its shareholders, the acquisition price can be called "reasonable" only if it does not harm the legitimate interests of the company or the shareholders, so it is necessary to make a certain balance between the interests of the company and the shareholders. Case: Zhao Zaiyue and Hailisheng Group Co., Ltd. requested the company to retry the civil judgment on the dispute over the acquisition of shares (case No.:(2017) Zhejiang Minzai No. 89; Trial court: Zhejiang Higher People's Court) First of all, Zhao Zaiyue advocates that determining the equity purchase price through third-party financial audit and asset evaluation is not the only way to judge the "reasonable price. If it is sufficient to determine a fair market price based on the circumstances of the case, there is no need to determine the purchase price of the equity by entrusting a third party to conduct an appraisal. Secondly, the reasonable price for the company to acquire the shares of the dissenting shareholders shall refer to the equity value calculated on the basis of the net assets of the company. Under the standard of the company's financial accounting system, the owner's equity in the balance sheet of the enterprise can reflect the real net assets of the company, even if the articles of association of the company do not agree on the purchase price of equity, there is nothing wrong with calculating the purchase price of equity on the basis of the owner's equity at the end of the year. Thirdly, at present, 21 natural person shareholders and 191 members of the shareholding association have accepted the price to transfer their shares, which to a certain extent confirms the true share price of the acquired shares in market transactions. (II) Disputed Question 2: What is the main reference to the transfer of main property under Article 74, paragraph 2, of the Company Law? Problem overview: What is the main property, the company law does not make clear. This leads to the need for judges to judge and identify the "main property" at their discretion in the process of handling specific cases. The discretion of the judge has led to the ambiguity of the criteria for the identification of the main property in judicial practice, and does the transfer of the main property simply refer to the sale? Is it a transfer to set up a company with another person in the form of in-kind capital contribution? It can be seen that Article 74 of the Company Law covers a narrow scope and cannot cover the problems that arise in the real process, such as asset restructuring, asset mortgage and other matters, in which case the interests of small and medium-sized shareholders are harmed, and there are doubts as to whether the provisions on share repurchase apply. In current practice, the court adopts two situations to determine the "main property": one is based on the "quantity" of the transferred property, and the other is based on the "quality" of the transferred property. Case: Zhongshan jielong kitchenware co., ltd. and Peng antao's request for the company to acquire shares (case no:(2016) yue 20 min zong no 4064; Trial Court: Zhongshan Intermediate People's Court of Guangdong Province) The court of second instance held that, first of all, the issue of whether the content of the resolution of the meeting belonged to the "transfer of major property" of Jielong Company. China's company law does not make a clear legal definition of the scope of the "transfer of the main property" of a limited liability company, the Court believes that whether the property transferred by the company is the main property, depending on whether the property transferred by the company affects the normal operation and profitability of the company, resulting in fundamental changes in the company. The business scope of Jielong Company is: production, processing, and sales of kitchenware and sanitary ware, and the content of the meeting resolution shows that Jielong Company "sold the equipment involved in the case to Zhang Hongmei at a price of 170518.46 yuan" and transferred bending machines, Shears, punches, argon arc welding machines, air compressors, wire drawing machines and other main production and operation equipment, not the products in its business scope, the transfer also did not involve the upgrading of the company's production equipment; and, in the second instance, Jielong confirmed that after the equipment involved was sold to Zhang Hongmei in May 2015, Jielong had ceased normal operations. Obviously, the property transferred by Jielong Company has affected the normal operation and profitability of the company, resulting in fundamental changes in the company, which has constituted the "transfer of main property" of the company in Article 75 of the Company Law of China. comment and analysis In practice, the determination of "reasonable price" is generally determined by reference to the fair market price of the acquired shares; when there is no fair market price for the acquired shares, it should be determined by reference to the fair market price of the shares of similar companies; when there is no fair market price for the shares of similar companies, it can be determined by reference to the company's establishment, operating conditions, the market value of the company's realizable assets, the market value of the company's net assets and other factors; in addition, in the absence of relevant factors to refer to, you can apply to an independent third-party audit institution for audit confirmation or apply to the court for judicial confirmation to determine. In addition, for the determination of "transfer of main property", it is more reasonable to take the "quality" of the transferred property as the criterion, that is, a comprehensive examination should be made of the extent to which the assets involved affect the operation, survival and interests of the company and shareholders.
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At 20 o'clock on December 8, "Model 6" (special program for the 100 anniversary of the founding of the party) jointly recorded by the Central Organization Department and China Central Radio and Television was premiered on the CCTV Comprehensive Channel. The party branch of Shandong Zhongcheng Qingtai (Dezhou) Law Firm Organized all lawyers to watch, which triggered a warm response. The "Model 6" program focuses on publicizing the typical deeds of the winners of the "July 1st Medal" and the national "two excellent and one first" commendation targets. Through the reproduction of typical deeds, on-site interviews, and revisiting the party oath, it demonstrates the firm belief and responsibility of outstanding Communist Party members. The spirit of acting, serving the masses, and hard work and dedication profoundly interprets the persistence and persistence of the Chinese Communists in not forgetting their original aspirations and keeping their mission. Everyone agrees that the story of the example is touching, and the guidance of the example is deeply rooted in the hearts of the people. As a lawyer, you must take the advanced model as an example, raise your own awareness, strictly observe the bottom line of discipline, and build a modern socialist country in an all-round way and realize the Chinese dream of the great rejuvenation of the Chinese nation. Make new and greater contributions.
2021-12-10
10
2021-12
Viewpoint | A Brief Analysis of the Application of the Right of Residence in Social Life
Since the implementation of the Civil Code this year, the right of residence has been more and more applied to social life. Compared with other systems, the right of residence has strong personal attributes, and the addition of the right of residence system also provides more legal support for people to make rational use of other people's real estate. 1. the Legal Evolution of China's Right of Residence System In 2001, the Supreme People's Court on the application.<中华人民共和国婚姻法>Article 27 of the (I) for the Interpretation of Certain Issues stipulates that "in the event of divorce, one party uses the housing in his personal property to help the person in difficulty, which can be the right of residence or the ownership of the house", and the right of residence was proposed for the first time. In order to solve the housing problem of the party suffering in life; in 2002, the housing right system appeared for the first time in the the People's Republic of China Property Law (Draft for Soliciting Opinions), however, the content of the right of residence was deleted in the subsequent draft review. The Civil Code of 2018 (Exposure Draft) set up the right of residence system, and the Civil Code, which came into effect on January 1, 2021, formally established the right of residence in the form of a code, so that the right of residence system was officially implemented in China. Application Scenarios of 2. Right of Residence After the implementation of the Civil Code, the first residence registration dispute in each province was reported. In social life, the right of residence is increasingly favored by the masses, mainly applicable: 1. In the event of divorce, one party should not only obtain the property right of the house, but also consider giving the other party residence security, so that the right of residence can be established on the house. However, considering that if the right of residence is established as a permanent right of residence, it will inevitably hinder the rights and interests of the owner of the house in possession, use, income and disposition of the house, it is suggested that the actual situation of both parties should be fully considered when establishing the right of residence, a limited term of the right of residence should be agreed, and the agreed conditions for the elimination of the right of residence should be increased, such as the elimination of the right of the right of residence after the other party's remarriage and the child. 2. For the remarried elderly, the establishment of the right of residence can provide protection for the remarried spouse's residence in the real estate, and will not bring about disputes over the ownership of the house, which not only avoids the anxiety of the remarried spouse living without a house, but also realizes the harmony between the remarried spouse and the children. 3. For the elderly without children, by establishing the right of residence, on the one hand, they can ensure their own right of residence, on the other hand, they can obtain certain financial security after the transfer of real estate. The applicable scenarios of the right of residence are diverse and limited to space and are not listed here. The flexibility, exclusiveness and publicity of the right of residence will bring new changes to the life of the masses. The Establishment of 3. Residence Right in Social Life Although the Civil Code provides for the establishment of the right of residence by contract and will, in practice, the right of residence established in the form of legal instruments in force also abounds. The Civil Code provides that the parties to the establishment of a right of residence shall conclude a contract of right of residence in writing. The right of residence is established free of charge and may not be transferred or inherited. The residence with the right of residence shall not be rented out. If the right of residence is established, it shall apply to the registration authority for registration of the right of residence; if the right of residence is extinguished, the cancellation of registration shall be carried out in a timely manner. 1, the establishment of the right of residence by contract. People can establish the right of residence through negotiation in social life. The specific performance is as follows: after the housing property right party determines the ownership of the residence right, it signs the residence right contract with the residence right holder, submits the materials according to the requirements of the real estate registration center, and waits for the examination and approval to issue the certificate. 2, the establishment of the right of residence by will. The Civil Code clearly stipulates that the right of residence can be established by will. However, the narrow sense of testamentary succession only includes legal heirs, and the "Shanghai Real Estate Registration Several Provisions", Jinan City, "on the development of residence registration work notice (trial)" all refer to "the relevant information of the bequest", therefore, the will here should be understood in a broad sense, that is, should include bequests. 3. Establishment of the right of residence by legal instrument in force In practice, the effective legal documents made by the people's courts and arbitration institutions are mainly mediation documents involving the content of the right of residence or the two parties have reached an agreement on the right of residence, and the judgment confirmed by the people's court after one party refuses to perform. The effective legal documents are enforceable. Therefore, it is possible to apply to the real estate registration center for the right of residence registration in the form of effective legal documents. The Significance of the Establishment of 4. Residence Right The establishment of the right of residence fully combines ethics and law, protects the living rights and interests of vulnerable groups, makes the weak have a place to live, and plays an important role in adjusting marriage and family relations and balancing the interests of all parties. The residence right system not only satisfies the subject will of both parties, but also gives full play to the use value of the house, providing a new scheme for effective property distribution. Tips The application for the establishment of the right of residence in Jinan shall be submitted: 1. to set up residence rights on other people's real estate, they can submit an application to the nearby district and county real estate registration centers, or they can apply online through Shandong government service network, love Shandong quancheng mobile phone app, etc; Materials to be submitted for the first registration of 2. residence: 1. If the right of residence is established by contract, it shall be jointly applied by both parties to the contract and shall submit: application for real estate registration (automatically generated by the system), residence contract (with model window), real estate ownership certificate and applicant's identity certificate; 2. If the right of residence is established by will, the parties shall apply unilaterally: it can be handled together with the registration of the transfer of real estate, and the notarized information and identification information such as the notarized certificate of inheritance right and the notarized certificate of acceptance of bequest; 3. If the right of residence is established by the effective legal documents of the people's court and the arbitration institution, the parties shall apply unilaterally and submit: the application for real estate registration (automatically generated by the system), the legal documents made by the arbitration institution of the people's court, and the applicant's identity certification materials; After the 3. residence right is examined and registered, an electronic license will be issued. If you need a paper certificate, you can get it at the window of the nearest real estate registration hall or mail it by the real estate registration center; 4. residence registration is temporarily free of charge.</中华人民共和国婚姻法>
2021-12-10
10
2021-12
Point of view... The realization of the priority compensation right of accounts receivable.
Introduction As an important financing method, accounts receivable pledge is widely used in judicial practice and has become a financial innovation tool, which plays an important role in invigorating the stock assets and future assets of enterprises and effectively expanding financing channels. However, the Civil Code does not clearly stipulate the realization of the pledge of accounts receivable, the subject matter of the pledge of accounts receivable is the right to request the payment of a certain amount of money, and it is not easy to convert the auction and sale of accounts receivable into money according to the general realization of the pledge of movable property. As a result, how to realize the priority of the right of payment of accounts receivable has become an unavoidable topic. This paper combs such cases in the light of the Supreme People's Court's adjudication cases, and makes a preliminary discussion on the realization of the pledge of accounts receivable from the perspective of maximizing the interests of creditors. What is Accounts Receivable Article 2 of the Measures for the Administration of Pledge Registration of Accounts Receivable stipulates that accounts receivable refer to the right of the obligee to require payment from the obligor due to the provision of certain goods, services or facilities and other payment claims enjoyed according to law, including existing and future monetary claims, but excluding payment claims arising from bills or other securities, as well as payment claims prohibited by laws and administrative regulations. Thus, for the first time at the departmental regulatory level, accounts receivable include existing accounts receivable and future accounts receivable. Article 440 of the Civil Code stipulates that the following rights that the debtor or a third party has the right to dispose of may be pledged: (1) bills of exchange, promissory notes and cheques; (II) bonds and deposit slips; (III) warehouse receipts and bills of lading; (IV) transferable fund shares and equity; (V) transferable property rights in intellectual property rights such as registered trademark exclusive rights, patent rights and copyrights; (VI) existing and future accounts receivable; other property rights that may be pledged in (VII) with the provisions of laws and administrative regulations. Thus, for the first time, the Civil Code provides at the legal level that accounts receivable include existing and future accounts receivable. The fourth paragraph of Article 61 of the Interpretation of the Guarantee System of the Civil Code stipulates that the people's court shall support the pledgee's request for priority payment of the funds in the specific account when the parties set up a specific account for the accounts receivable and the legal or agreed reasons for the realization of the pledge occur, if the right holder requests priority payment of the funds in the specific account; if the amount in a specific account is not sufficient to pay off the debt or a specific account has not been established, and the pledgee requests a discount or auction or sale of the project proceeds, etc., and the accounts receivable will be paid in priority with the proceeds, the people's court shall support it in accordance with the law. Thus, the Civil Code Interpretation of the Guarantee System will have accounts receivable that include rights to the proceeds of infrastructure and public utility projects, claims arising from the provision of services or services, and other accounts receivable that will be available. The realization of the right of priority compensation of accounts receivable. The Civil Code does not clearly stipulate the way to realize the pledge of accounts receivable, but because the pledge of accounts receivable is a kind of pledge of rights, according to the provisions of Article 446 of the Civil Code, the way to realize the pledge of accounts receivable is applicable to the way to realize the pledge of movable property as stipulated in the second paragraph of Article 436 of the Civil Code, that is, the pledgee and the pledgee agree to discount the pledged property, or priority payment for the price of the proceeds from the auction or sale of the pledged property. This paper is based on the classification of existing accounts receivable and future accounts receivable, and the analysis is as follows: (I) existing receivables At the time of the creation and realization of the existing pledge of accounts receivable, the debtor of the accounts receivable and the subject matter of the pledge have been determined, so the pledgee's right to exercise usually advocates the most advantageous way for it, I .e. to claim priority payment of the accounts receivable and to request the debtor of the accounts receivable to perform the debt directly to it. In judicial practice, the conditions for the exercise of the pledge of accounts receivable have been achieved, and there is no doubt that the pledgee has the right of priority in the payment of the accounts receivable when the period of performance of the debtor of the accounts receivable expires, but there are two main different views on whether the pledgee has the right to directly request the debtor of the accounts receivable to pay the accounts receivable directly to itself: Viewpoint 1: The right holder has the right to require the accounts receivable debtor to pay the accounts receivable to himself (the current mainstream view of judicial practice) (2019) Supreme Law Civil Final No. 1023 Qingdao Qinlu Hailian International Trade Co., Ltd., China Development Bank quality dispute second instance civil ruling on the quality of the right of the right to exercise the right of accounts receivable can require the debtor of accounts receivable to pay the corresponding amount. Our law does not provide for the specific realization of the right of accounts receivable. Since the subject matter of the pledge of accounts receivable is limited to monetary debts, the pledgee has the right to directly require the debtor of the accounts receivable to pay the corresponding amount when exercising the pledge, without the need for a discount, auction or sale. Viewpoint 2: The pledgee has no right to require the accounts receivable debtor to pay the accounts receivable to itself (2017) Supreme Famin Shen No. 1572 Overseas Chinese Yongheng Bank (China) Co., Ltd. Guangzhou Zhujiang New Town Sub-branch, Yantai Fengcai Packaging Co., Ltd. (formerly Yantai Haierfengcai Packaging Co., Ltd.) Financial Loan Contract Dispute Retrial Review and Trial Supervision Civil Ruling Letter Civil Judgment Letter The legal relationship between the pledgee and the creditors of accounts receivable pledge is formed, because the accounts receivable creditor did not assign its claim to the accounts receivable debtor to the pledgee, and there was no direct debt and debt relationship between the pledgee and the accounts receivable debtor, the pledgee did not have the right to request the accounts receivable debtor to pay the accounts receivable directly to it. Lawyer's point of view: based on the monetary creditor's right attribute of accounts receivable, the pledgee notifies the accounts receivable debtor of the establishment of the pledge of accounts receivable, and after obtaining the confirmation of the authenticity of the accounts receivable debtor, once the exercise conditions of the pledge of accounts receivable are fulfilled, the pledgee has the right to require the accounts receivable debtor to directly pay the accounts receivable to itself and enjoy the priority of compensation for the accounts receivable. This not only avoids the cumbersome procedures of discount or auction and sale required to realize the pledge of accounts receivable, reduces the exercise cost of the right holder, but also helps to speed up the settlement of disputes between the parties. (II) will have a way of realizing accounts receivable Supreme People's Court Guidance Case No. 53 The right to the proceeds of the sewage treatment project belongs to the future monetary claim, and the right holder may request the court to order it to collect the money directly from the debtor of the quality person and exercise the right of priority compensation for the money, so there is no need to take the way of discount or auction or sale. Moreover, the right of income is accompanied by a certain burden, and its business entity has a specific nature, so according to its nature, it is not appropriate to auction, sell. Therefore, the pledgee has the right to collect sewage treatment fees directly from the franchisee in accordance with the agreement, and to exercise the right of priority compensation for the sewage treatment service fees collected. After the publication of Guidance Case 53, it was widely interpreted as the pledgee of accounts receivable could claim rights directly against the debtor of the accounts receivable. A different view is that the subject matter of the pledge in Guidance 53 is the right to the proceeds of the franchise, which is different from the accounts receivable, and that there is no basis for extending the use of such cases to all accounts receivable pledge cases. Lawyer's point of view: In view of the franchise revenue rights involved in the 53 guidance case, the court in the reasons for the decision on the "franchise pledge guarantee agreement" agreed to the pledge subject matter as follows: "the sewage treatment project franchise is the right to operate and maintain the sewage treatment plant, and to obtain the corresponding income. The operation and maintenance of the sewage treatment plant is the obligation of the operator, and its right of income is the right of the operator. Since the operation and maintenance of the sewage treatment plant is not a transferable property right, the pledge of the sewage treatment project franchise right in dispute is essentially the pledge of the sewage treatment project income right." After clarifying the pledge target, the court compared the franchise income right involved in the case with the highway toll right, and held that "although the laws, administrative regulations and relevant judicial interpretations at that time did not stipulate that the sewage treatment project income right can be pledged, however, the right to income from sewage treatment projects is similar in nature to the right to income from roads.... the highway income right belongs to other rights that can be pledged according to law, and the similar sewage treatment income right should also be allowed to be pledged". therefore, although the enterprise management right and various franchises can also generate expected income, they do not have the nature of accounts receivable and cannot be pledged as accounts receivable, but the resulting toll right, that is, its exercise period and the amount of income can be determined, it is a defined property right ...... by its nature can also be included in the category of "accounts receivable" that can be pledged by law. Thus, the franchise proceeds rights involved in Guidance Case 53 are in the nature of accounts receivable, and the rules for the realization of their rights may be applied to other accounts receivable pledge cases by reference. Lawyer Advice 1. It is recommended that priority be given to pledging accounts receivable whose amounts have now been determined and whose liquidation period has expired, and that the pledgee and the sub-debtor jointly confirm them. If only future accounts receivable can be pledged, a pledge of rights not expressly provided for by law should be prudently established in accordance with the principle of property law. 2. The parties set up a specific account for accounts receivable The parties shall set up a specific account for the stolen money receivable. According to the fourth paragraph of Article 61 of the Guarantee Interpretation of the Civil Code, when a party sets up a specific account for accounts receivable and a legal or agreed reason for the realization of the pledge right occurs, the pledgee has the right to request priority compensation for the funds in the specific account. If the funds in the specific account are not enough to pay off the debts or no specific account has been set up, the pledgee has the right to request for discount or auction or sell the future accounts receivable, and to be paid in priority at the price received. 3. When the pledgee files a lawsuit to realize the pledge, the debtor of the accounts receivable may be listed as the defendant to sue, and the debtor of the stolen money receivable shall be required to pay the relevant amount directly to the pledgee shall be clearly listed as the claim. 4. The court decided to confirm that the pledgee has the right to receive priority compensation after the auction, sale price or discount of the accounts receivable. It is difficult for the pledgee to apply to the court for direct enforcement of the accounts receivable debtor. Usually, the pledgee needs to file a separate suit of subrogation against the accounts receivable debtor, thus requiring the accounts receivable debtor to perform its debts.
2021-12-10
09
2021-12
Viewpoint | Research on the practice of adjusting workers' jobs in units
Job changes include changes in job content and workplace. Changes in job content and workplace are sensitive to both employers and employees and must be treated with caution. 1. employers to change their jobs should comply with the law. If the employer proposes to change the work content and location due to work needs or personal reasons, both parties shall fully communicate and negotiate. If it is difficult to reach an agreement, the labor contract may be terminated or terminated according to law. The adjustment of work positions must be negotiated amicably between the two parties in terms of procedures, and the labor remuneration of workers should not be reduced under the same or optimized working conditions. However, in practice, in order to force the laborer to propose to terminate the labor contract, some employers unilaterally change the laborer's work location or work content, or change their jobs on the grounds that the so-called laborer is unqualified. Illegal behavior. In practice, there are not many disputes about the changes in the work content, mainly the changes in the work place. According to Article 17 of the Labor Contract Law, the place of work is one of the necessary provisions of the labor contract. How to negotiate and agree on the "work place" in the labor contract, there are roughly three situations in practice: one is the precise agreement, such as a certain street in a certain district, a certain building and a certain room. The precise workplace agreement is in line with the legislative purpose of the Labor Contract Law on the necessary provisions of the workplace; the second is the general agreement, such as a city, a district, the whole country. The broad agreement is obviously an unclear agreement. In this case, it is generally believed that if the employee has worked at an actual work place after the labor contract is signed, the actual work place shall be regarded as the specific work place determined by both parties. The enterprise shall not change the employee's workplace at will on the grounds of such broad workplace agreement. Three is the authorization of the agreement. There are two types of authorization agreements:(1) conditional obedience type, that is, the enterprise can adjust the work place and post of employees according to the needs of production or operation, and the employees should obey:(2) unconditional obedience type, that is, the enterprise can adjust the work place and post of employees according to the needs of production or operation, and the employees should obey unconditionally. The conditional obedience agreement has a certain rationality, but it does not mean that the enterprise can abuse the authorization of the labor contract and arbitrarily adjust the employee's workplace. In other words, when an enterprise adjusts or changes the employee's workplace according to the authorization of the labor contract, it needs to prove that the change of workplace is reasonable, and only a simple "production and operation needs" is not a reasonable reason. In addition, if an enterprise adjusts or changes an employee's workplace, it also needs to consider whether it increases the difficulty or burden of the employee's performance of the labor contract, whether it affects the employee's life, and whether the enterprise has taken reasonable remedial measures. For the unconditional obedience type of agreement, it is precisely in line with the labor contract terms invalid situation. According to the provisions of Article 26 of the labor contract law, the labor contract that the employer exempts itself from its legal responsibility and excludes the rights of workers is invalid or partially invalid. 2. workers should have a correct understanding of the employer's job changes Article 29 of the "Labor Contract Law" stipulates that the employer and the employee shall fully perform their respective obligations in accordance with the labor contract. The employer exercises the autonomy of operation and management due to the adjustment of production structure and business scope or changes in the external market, and makes appropriate adjustments to the positions of workers under the premise of legality and reasonableness. Workers should cooperate with this. If workers have objections to the adjustment of their jobs, they should be resolved through consultation, and should not resist or confront them in a passive manner. Even if there are some differences between the new post and the original post, as long as there are no major differences, workers should adapt to the new post through learning and training, and should not resist on the grounds that they are not competent. In practice, employers exercise their operational autonomy to adjust the organizational structure. As long as they do not maliciously transfer posts against individuals, do not unilaterally designate adjusted jobs, and do not explicitly reduce wages, it should be regarded as a reasonable adjustment of jobs by employers. At this time, workers know that they should but insist on not going to work at the place designated by the company, which obviously violates the duty of diligence and loyalty that a worker should perform to the employer, it also violates the bottom line of professional ethics as a worker. It is the duty of the laborer to follow the basic work discipline of the employer. Although the law protects the legitimate rights and interests of the laborer, it does not condone the laborer to do whatever he wants.
2021-12-09
09
2021-12
Viewpoint | Gambling Agreement "Past and Present"
Foreword According to the definition of the "Jiumin Minutes", a gambling agreement refers to an agreement designed to solve the uncertainty, information asymmetry and agency cost of the target company's future development between the investor and the financier when they reach an equity financing agreement. It includes equity repurchase, monetary compensation and other adjustments to the valuation of the target company in the future. It is essentially an option. Since Mengniu Dairy signed the first domestic gambling agreement with investment institutions such as Morgan Stanley in 2003, this equity financing method has become a popular method of financing for Chinese companies, but there are frequent debates about the origin of the gambling agreement. The purpose of this paper is to trace the gambling agreement and briefly analyze its localization rules. The origin of the 1.-to-gambling agreement. China's commonly known as the gambling agreement, also known as the valuation adjustment agreement (Valuation Adjustment Mechanism, "VAM"). Perhaps because the domestic first seen in the investment agreements of foreign investment institutions such as Morgan Stanley, the domestic view of gambling agreements is a common means of financing overseas. However, in the overseas literature database, there are few related articles and cases Valuation Adjustment Mechanism, and most of them are created by domestic scholars and law firms. At the same time, as cross-border investment and financing become more mature, many people recognize that gambling agreements are localized innovations made by foreign investment institutions for domestic companies based on profitability payment plan clauses, anti-ratchet clauses, etc. The offshore financing provisions related to this, while similar in appearance, are quite different in nature. (I) Profitability Payment Plan Terms Profitability payment plan, that is, the earn out clause, refers to the process of financing mergers and acquisitions, the transaction price reached by both parties according to the seller's enterprise's profitability and other ability to float, that is, in the process of mergers and acquisitions, the target company's future earnings, cash flow and other financial indicators as the premise, set up a phased, hierarchical capital injection. A simple model is: The parties enter into a financing or merger agreement, 1. Pay 1 million yuan in cash when the agreement is reached; 2. Within 1 year after the agreement is reached, if the seller's revenue exceeds 700000 yuan, the buyer will pay 1 million yuan for the second payment, and if it does not exceed 700000 yuan, the buyer will pay 500000 yuan; 3. In the second year of the agreement, if the seller's revenue exceeds 1 million yuan, the buyer will pay 500000 yuan for the third payment, and if it does not exceed 1 million yuan, the buyer will not pay the third financing. The profitability payment plan is significantly different from the gambling agreement. Profitability payment plans are where the buyer delays payment to the seller, so they are mostly used for corporate mergers and acquisitions, while gambling agreements are where the investor provides financing to the founder and then requires the founder to buy back the shares or return the financing after the agreed conditions are fulfilled. Types of domestic gambling agreements in (II) 1. Compensatory gambling Compensation is the requirement that the founder compensate the investor for the expected return on investment according to a certain formula after the conditions of the bet have been fulfilled, but the investor's share in the business itself will not be reduced. Compensation can be in the form of cash or equity. The former reduces the investor's risk exposure to the business and realizes part of the investment income when you get cash, while the latter increases the investor's risk exposure to the business, and the volatility of investor returns is more closely linked to the business performance of the business. Although the investor in the compensatory gambling agreement does not withdraw from the financier's company, the cash compensation clause will affect the company's cash flow and damage the partnership between the investor and the financier. The investor's legacy equity may not work, so cash compensation often appears with exit redemption clauses. 2. Redemption gambling. The founder redeems the shares to the investor at a certain price after the conditions of the bet are fulfilled. This is also the most common domestic gambling agreement. Equity redemption is a mature path for PE exit, and most of the domestic equity redemption requires the founder to redeem at a premium, which undoubtedly increases the expected return of investors. Redemption rights are regulated in all countries and are gradually opening up, provided that the capital of the enterprise is maintained. 3. Other types of gambling agreements In addition to the two common types of bets mentioned above, there are equity dilution and equity priority. The former requires that when the conditions of the bet are fulfilled, the financier issues a portion of the shares to the investor at a very low price, while the latter requires that when the conditions of the bet are fulfilled, the financier acquires specific rights such as the right to preferential distribution of the remaining property. In contrast, there are also, but rarely, situations in which the investor rewards the financier additionally when the gambling conditions are fulfilled. 2. the rules of the gambling agreement. (I) the main body of our gambling agreement. One of the parties to the gambling agreement is the investor. This investor is mostly a financial investor, I .e., for the purpose of financial gain and generally does not interfere with the company's operations. The other party may be the target company, the target company's shareholders or actual controllers, and the target company's management. However, because China is still under the statutory capital system of shareholder centralism, management can not properly handle the company's equity affairs in a timely manner, so the gamblers are mostly the first two situations. However, in cross-border investment and financing mergers and acquisitions, the management of foreign companies is very independent. On the one hand, they are the people who best understand the actual value and potential of the company, and on the other hand, the interests of management and shareholders are often not aligned. Although the management of domestic enterprises is still in the stage of subsidiary to shareholders, with the increasing maturity of the business environment, its independence will be greatly enhanced. Therefore, both investors and shareholders must not ignore management's views on the gambling agreement. (II) the validity of our gambling agreement. According to the relevant provisions of the Ninth Minute, the validity of the gambling agreement varies depending on the subject of the gambling party. The gambling agreement signed between the investor and the shareholder or actual controller of the target company shall be deemed valid and support the actual performance if there is no other invalid cause. In the case of a gambling agreement between the investor and the target company, the shareholders, who are required to comply with Article 35 of the Companies Act, may not withdraw their capital contributions. For monetary compensation-type gambling agreements, the order of profit distribution shall be in accordance with Article 166 of the Company Law, and for equity repurchase-type gambling agreements, the procedures of Article 142 of the Company Law shall be followed to complete the capital reduction procedures. In addition, foreign-related gambling agreements often require the approval of foreign investment departments, and those without approval also have the legal risk of invalidity. (III) the legal risk of China's gambling agreement. The first is the listing risk. In September this year, the CSRC called for the listing of many enterprises with gambling agreements to be suspended. The move is intended to further regulate the disclosure requirements of gambling agreements. Generally speaking, the issuer is required to clean up the gambling agreement before filing, and the conditions for exemption from liquidation are very stringent, so it is best to set up the subject of the gambling agreement as the shareholder or actual controller of the target company, so as not to affect the operating ability of the target company's equity structure. The second is the risk of the company's ability to operate. China's high pressure on gambling agreements often requires the company's shareholders and management to have a very clear understanding of the company's ability to operate and future business strategy, otherwise there may be a company's cash flow fracture, loss of control and even inability to repay and other major risks. Therefore, it is very important to set up a reasonable gambling structure and determine the rights and obligations of both parties, so as to prevent angel investors from turning into "barbarians" at the door ". Conclusion Financing has always been an important issue that enterprises cannot avoid. The original intention of venture capital should be to help start-ups turn ideas into products, quickly put them on the market, and then iterate and upgrade products based on user feedback, which is a process of constant "trial and error. As a form of financing, the cost of failure is too harsh to make the gambling agreement quite unfriendly to the financier, but in China's current buyer-led capital market system, the gambling agreement is so popular there is a reason. Therefore, it is necessary to pay attention to its legal risks, use the financing function of the gambling agreement for development and innovation, use its exit mechanism as a driving force, and make good use of this double-edged sword.
2021-12-09
09
2021-12
为贯彻落实《证券法》和《国务院办公厅关于贯彻实施修订后的证券法有关工作的通知》，规范公司债券的发行、交易或转让行为，保护投资者的合法权益和社会公共利益，加强事前事中事后监管，2021年证监会修订发布《公司债券发行与交易管理办法》（第180号令，2020年8月7日发布征求意见稿）。该文件根据《证券法》的要求（如落实公司债券的注册制、将证券服务机构从事证券服务业务由行政许可调整为备案管理），并结合“取消强制评级要求、严禁结构化发债等自融行为、规范承销机构的承销业务行为,严禁发行人、控股股东、实控人和董监高的逃废债行为、调整普通投资者参与公募公司债券的条件、加强债券持有人权益保护”等新变化，对证监会113号令进行修订。本文拟以上述新变化为切入点并结合本律师已承办的数十支公司债券交易纠纷案件经验，对《公司债券发行与交易管理办法》修订版（以下简称《管理办法》）中的实务难点进行梳理并解析，一窥未来公司债券市场归位尽责的新秩序。 一、弱化外部评级依赖：取消强制评级要求 债券市场出现危机以来，降低外部评级依赖已是市场共识。针对我国信用评级行业存在评级虚高、区分度不强等“重市场份额、轻评级质量”的问题，降低对外部信用评级依赖亦成为政策层面需要考量的因素。其中，2020年11月中旬相继发生的河南永煤、华晨汽车、清华紫光以及河北冀中等多家AAA级国企违约事件亦强化了这一导向。 《管理办法》删除了原第十九条关于公开发行公司债券应当委托资信评级机构进行信用评级的条款内容，同时还删除了普通投资者参与公募公司债券的评级要求（以往普通投资者只能认购AAA级公募公司债券），实际上确立了交易所市场公开发行公司债券将全面取消强制评级的新秩序。 取消强制评级要求有以下好处，首先，可以促进资信评级市场实现有序竞争和良性循环，改变评级机构一味抢市场而忽视评级质量，以级定价、以价定级、评级虚高、评级结果经不起市场检验，评级调整滞后等问题，有助于恢复行业公信力；其次，弱化投资人对外部评级的依赖，增强市场导向也符合国际趋势，将有望促进评级回归揭示风险、市场合理风险定价的本源。 但取消强制评级要求也会带来相应的挑战。从监管层面而言，不排除发行人自身信用良莠不齐导致审核机构的审核压力增加而出现挂一漏万的情形。从投资者角度分析，《管理办法》实施后投资者将会面临外部评级结果缺失的可能性，由此也会导致投资者追偿发行人的诉讼/仲裁案件中丧失可以证明发行人存在违约行为及偿债能力不足的有利证据，这对投资者而言并不十分有利，需要搜集或组织其他证据链予以弥补缺失。无论政策执行效果如何，笔者都建议投资者（尤其机构投资者）从现在开始建立一套弱化外部评级依赖的内部信评标准或咨询专业的律师团队进行风险评估。 二、加强监管力度：严禁结构化发债等自融行为 结构化发债是在去杠杆和强监管的背景下，在部分市场主体通过债券市场融资较为困难的情况下出现的一种诡异现象，其本质是发行人、承销机构等为提高债券发行成功率而自行或通过其他方式认购自身发行的债券。结果上看，结构化发债等自融行为使得债券的票面利率难以真实反映市场定价情况，破坏了融资的“直接”属性及市场秩序，且在后续的债券违约追责过程中，发行人可利用“两张脸”所扮演的不同角色，促使持有人会议陷入困局，造成严重的不良后果。 为此，《管理办法》第四十五规定：“发行人和承销机构不得操纵发行定价、暗箱操作；不得以代持、信托等方式谋取不正当利益或向其他相关利益主体输送利益；不得直接或通过其利益相关方向参与认购的投资者提供财务资助；发行人不得在发行环节直接或间接认购其发行的公司债券。发行人的董事、监事、高级管理人员、持股比例超过百分之五的股东及其他关联方认购或交易、转让其发行的公司债券的，应当披露相关情况”。 笔者认为，上述规定在制度上虽明确了打击结构化发债的态度，但实际执行过程中能否做到，除了靠发行人等主体的自律外，更依赖债券受托管理人在债券存续期内重点监控。持有人可扮演“黄雀”的角色，盯紧债券受托管理人，重点可以从受托管理人是否已勤勉尽责地履行管理人义务和管理人是否已及时履行披露义务与处理利益冲突等方面来进行证据搜集，以压实机构责任的方式来维护自身合法权益，具体可以侵权之诉、违约之诉或证券虚假陈述之诉来进行追责（需根据实际案情及相关证据来具体判断）。但上述追责不同于公司债券违约纠纷中债券持有人直接起诉发行人的债券违约兑付本息责任案件，而是属于由实际出资人向资产管理人、受托管理人等主体主张过错赔偿责任案件，这在资本市场纠纷中鲜有成功案例，究其原因还是因为相关证据收集及因果关系认定方面存在困难，而债券持有人受限于知识、经验和手段等各方面的因素影响，很难发现受托管理人的违规行为，仅依靠持有人自有能力维权，难度较大。 三、归位尽责：规范承销机构的承销业务行为 承销机构为冲击债券市场业绩，做大承销规模，低价投标是近年的常态，该现象严重扰乱了承销市场秩序。为此，《管理办法》重点从两个方面做出了规定： 1.要求建立内部问责机制，规范过度激励与低价竞争等不规范承销行为； 2.要求主承销商承担更高的尽调和复核责任，并按照合理性、必要性和重要性原则，对公司债券发行文件的真实性、准确性和完整性进行审慎核查，并确认发行文件披露的信息不存在虚假记载、误导性陈述或者重大遗漏。 事实上，2020年12月4日，交易商协会便已经发布《非金融企业债务融资工具主承销商尽职调查指引》，与《管理办法》的规定相辅相成。笔者认为，承销机构若可以归位尽责，投资者便可多一份保障，对投资者最长情的告白便是承销商真诚的陪伴。当然，持有人若没有这份陪伴甚至还可能被承销机构伤害，也不用怨天尤人。 近年来，债券违约处置已成为司法部门和监管部门的关注重点，且关注点已不仅局限于发行人，实际已转移至承销商等中介机构。2020年12月31日，杭州市中级人民法院对“五洋债”欺诈发行案作出一审判决，要求债券承销商等中介机构向债券投资者承担连带赔偿责任。由此，不仅醍醐灌顶给承销商等机构好好的上了一课，更为投资者指明了另一条维权之路—向债券承销商等证券服务机构来进行追责。因在证券发行过程中，多数承销商即是该证券的受托管理人，二者存在身份竞合的情形，由此，关于承销商的追责问题，上文已提及，于此不再赘述。只提示一点，持有人如发生相关损失，也可以重点关注会计师事务所、资信评级机构、律师事务所的尽职履责情形，根据《证券法》及《虚假陈述若干规定》中的规定，会计师事务所、资信评级机构、律师事务所都有可能成为欺诈发行、虚假陈述的责任主体，投资者可以通过民事行为、行政手段，甚至通过刑事责任追究等方式来维权。 四、零容忍：严禁发行人、控股股东、实控人和董监高的逃废债行为 2020年11月中旬，河南永煤控股债券违约引发的信用债风暴，注定会成为中国债券违约历史上的一个标志事件，其会逐渐拉开国企债券违约常态化的序幕，亦有望推动国内违约和破产清偿制度的完善。由此，该事件的后续处理，将关乎信用债市场的信用根基。2020年11月21日，中国政府网公告：国务院副总理、国务院金融稳定发展委员会主任刘鹤主持召开金融委第四十三次会议，研究规范债券市场发展、维护债券市场稳定工作。重点提到：秉持态度，维护市场公平和秩序。要依法严肃查处欺诈发行、虚假信息披露、恶意转移资产、挪用发行资金等各类违法违规行为，严厉处罚各种“逃废债”行为，保护投资人合法权益。 还有其他内容，笔者不再一一转述，传达出来的意思很明显，虽是凭本事借出来的钱，但也不能靠厚脸皮赖账，更不能出歪招逃废债。这次要重点整治几家企业，如对华晨集团的立案调查，就是对恶意逃废债的一次正面回击，不是破产就可以逃之夭夭的。关于此，笔者所在团队感触颇深，团队已代理的多支债券案件中，实际已将发行人的主要资产进行了保全（部分案件为全额首封），并通过精细化的庭审准备，获得了胜诉裁决/判决，本可全额拿回应得的财产，但何曾想，发行人总是翻箱倒柜拿出“破产”这道令牌，使得团队多数的努力付之东流。 由此，整治逃废债行为已是迫在眉睫，《管理办法》主要是从“内部人员”法定义务的强化方面来进行治理，如发行人及其控股股东、实际控制人等责任主体存在《管理办法》中所禁止的行为或违反规定的，持有人便不仅可以对发行人进行追责，更可撕破“面纱”，直接追究责任人员的连带侵权责任，要求其赔偿损失。强化措施主要体现在： 1.发行人及其控股股东、实际控制人应当诚实守信，发行人的董监事、高级管理人员应当勤勉尽责，维护债券持有人享有的法定权利和债券募集说明书约定的权利；不得怠于履行偿债义务或者通过财产转移、关联交易等方式逃废债务，蓄意损害债券持有人权益； 2.发行人的董事和高管应当对公司债券发行文件和定期报告签署书面确认意见； 3.监事会应当对公司债券发行文件和定期报告进行审核并提出书面审核意见，监事应当签署书面确认意见。 4.发行人及其控股股东、实际控制人等违反本办法规定，损害债券持有人权益的，中国证监会可以对直接负责的主管人员和其他直接责任人员采取责令改正、监管谈话、出具警示函、责令公开说明、责令定期报告、警告、罚款等相关监管措施，依法应予行政处罚的，依照规定处罚；涉嫌犯罪的，依法移送司法机关，追究其刑事责任； 5.发行人及其控股股东、实际控制人、董监事、高级管理人员有逃废债行为的，中国证监会可以依法限制其市场融资等活动，并将其有关信息纳入证券期货市场诚信档案数据库； 6.发行人的控股股东滥用公司法人独立地位和股东有限责任，损害债券持有人利益的，应当依法对公司债务承担连带责任。 上述治理手段能否有效，有待观瞻，最后说一下什么叫“逃废债”？ 逃废债属于民事违约行为，不是所有的欠债不还都是逃废债，它主要强调债务人的主观故意。确切的说，有履行能力而不尽力履行债务的行为就是逃废债。从债务人主观上来看，逃废债有两种表现形式：一种是积极的逃避履行债务，我们通常称之为“恶意逃废债”；另一种是消极的不履行。经笔者所在团队已办理的案件分析，逃废债通常有以下手段： 1.恶意隐匿、转移、无偿或不合理低价转让资产； 2.为逃避债务出逃境外； 3.以虚假破产方式金蝉脱壳； 4.以改制、重组、分立、解散等方式剥离有价值资产； 5.通过关联交易抽逃出资、转移利润、转移资产； 6.通过“换牌子”经营来金蝉脱壳； 7.以虚假租赁阻碍执行； 8.以虚假诉讼阻碍拍卖或参与分配； 9.未经债权人同意，擅自处置、毁损抵押资产； 10.恶意为他人提供担保，影响其自身偿债能力； 11.拒不申报财产或虚假申报； 12.借被吊销营业执照之机逃债。 逃废债手段不止上述12种，但破解方法往往可以通用，具体如何破解，且听下回分解。 五、老生常谈：债券持有人权益保护 笔者对前述《管理办法》中的新变化均持肯定态度，但对于《管理办法》中债券持有人权益保护部分，明显感觉力度不够，甚至有“换汤不换药”之感。先说下新变化，主要体现在两个方面： 1.《管理办法》根据财产状况、金融资产状况、投资知识和经验、专业能力等因素，将公司债券投资者分为普通投资者和专业投资者，落实了《证券法》的相关规定，进行适当性的区分有利于更好的解决日后投资者与证券公司产生纠纷后的举证责任分配问题，具有重要意义； 2.调整了普通投资者可参与认购交易公募债券的要求。新《管理办法》在原《管理办法》基础上，增加了向普通投资者公开发行债券的两项条件—“发行人最近一期末净资产规模不少于250亿元”和“发行人最近36个月内累计公开发行债券不少于3期，发行规模不少于100亿元”，删除了原“债券信用评级达到AAA级”的要求。该变化
2021-12-09
09
2021-12
[brief case]] Liang and Chen took out campus insurance for their daughter Xiao Liang to an insurance company through the school. During the insurance period, Xiao Liang died of illness, so Liang and Chen asked an insurance company to pay insurance money. An insurance company believes that the medical records show that trabecular has been suffering from illness before the insurance, according to the insurance contract, it does not need to pay insurance money. There is a dispute between the parties as to whether an insurance company has fulfilled its obligation to advise on the exemption clause. An insurance company claimed that it had fulfilled the obligation of prompt explanation by distributing leaflets to parents through the school before underwriting, but Liang and Chen did not confirm this. The people's court held that the main purpose of an insurance company's distribution of leaflets through schools was to attract parents of students to take out insurance. The nature of the leaflets was similar to advertisements and did not belong to the scope of insurance certificates. There was no hint on the leaflets that parents should pay attention to the contents of the exemption clauses, and an insurance company did not explain the exemption clauses in other ways, therefore, the leaflet alone can not prove that an insurance company on the exemption clause to fulfill the obligation to explain the obligation, the judgment of an insurance company to Liang, Chen Mou to pay insurance money. focus of controversy] Whether an insurance company has fulfilled its obligation to clearly explain to the policyholder the exemption clause involved in the case, and whether the policyholder has intentionally or due to gross negligence failed to fulfill the obligation of truthful disclosure. The court of first instance held that] The Court believes that: Liang, Chen as the legal guardian of trabecular to an insurance company to insure students, children safe personal accident insurance, and an insurance company to collect insurance premiums, so the two sides set up a life insurance contract relationship in accordance with the law. Both parties have no objection to the fact that the insured trabecular had a past medical history before the insurance and trabecular spent a total of 117979.99 yuan on medical expenses before his death due to illness, which was confirmed by our hospital. According to the arguments of both parties, the focus of the dispute in this case is whether an insurance company has fulfilled its obligation to clearly explain the exemption clause involved in the case to the insured. In this regard, the court believes that the second paragraph of Article 17 of the the People's Republic of China Insurance Law stipulates that for the clause in the insurance contract that exempts the insurer from liability, the insurer shall make a sufficient statement on the insurance policy, insurance policy or other insurance certificate when concluding the contract. Prompt to attract the attention of the applicant, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause, the clause shall not. Article 11 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Insurance Law stipulates that when an insurance contract is concluded, the insurer shall exempt the insurer from liability in the insurance contract on other insurance documents such as the application form or insurance policy. The clause is prompted by words, fonts, symbols or other obvious signs sufficient to attract the attention of the applicant, the people's court shall determine that it has fulfilled the reminder obligation stipulated in the second paragraph of Article 17 of the Insurance Law. Where the insurer provides an explanation in writing or orally to the insured of the concept, content and legal consequences of the clause in the insurance contract relating to the exemption of the insurer's liability, the people's court shall determine that the insurer has fulfilled the obligation of clear explanation stipulated in the second paragraph of Article 17 of the Insurance Law. In this case, an insurance company claimed that the insurance policy involved in the case made it clear that the insurer would not be liable for the death caused by the disease and its complications that existed before the insured was insured, and that the insurer would not be liable for the payment of insurance benefits. It also indicated in the leaflet issued to the parents of the students that "the diseases, congenital diseases, hereditary diseases and their complications that had been suffered before the initial insurance shall not be liable for insurance", so it has fulfilled. However, according to the "Information Note" provided by a primary school, it can be seen that an insurance company has not directly contacted the parents of the students in the whole process of issuing leaflets, parents' signatures, premium collection and policy delivery. There is no evidence that an insurance company has explained the concept, content and legal consequences of the exemption clauses in the leaflets and insurance policies to the parents of the students in written or oral form. In addition, an insurance company argues that the parent of the student and an insurance brokerage company constitute a principal-agent relationship, so its behavior of exercising the obligation of prompting and explaining to an insurance brokerage company also has effect on the policyholder. This defense obviously confuses the basic principles of the subject status of the parties to the insurance contract and the relativity of the contract, and whether the establishment of the insurance contract has the intervention of the insurance brokerage company, neither does it affect the performance of the insurer's obligation to explicitly state directly to the policyholder on the exemption clause, so this defense claim of an insurance company is not accepted by the Court. In summary, the Court confirmed that an insurance company did not clearly explain the obligation of the exemption clause involved in the case to the policyholder Liang and Chen, and the exemption clause has no effect on Liang and Chen. The insurance policy involved in the case did not agree on the beneficiary. According to the provisions of Article 42 of the the People's Republic of China Insurance Law, Liang and Chen Mou, as the first order heirs of Liang, are now suing to require an insurance company to pay insurance money of 130000 yuan. The rationale is sufficient and the court supports it. In addition, no matter whether Liang and Chen have signed on the leaflet, and whether Liang's cause of death is related to past medical history, it will not affect the above-mentioned determination and handling results of this case. Therefore, it is no longer necessary to obtain evidence from an insurance company and the application for identification, and the court will not allow it. The court of second instance held that] The Court believes that the trial of the second instance case should revolve around the appeal request of the parties. Based on the opinions of both parties, the focus of the dispute in the second instance of this case includes: whether an insurance company in the 1. has fulfilled the obligation to clearly explain the exemption clause to the insured Liang and Chen, 2. whether the insured Liang and Chen have deliberately or due to Gross negligence failed to perform the obligation of truthful notification. Regarding the focus of the dispute, whether an insurance company has clearly stated its obligation to the policyholder Liang and Chen on the exemption clause. The insurer's obligation to explain the exemption clause refers to the insurer's explanation of the concept, content and legal consequences of the exemption clause in the insurance contract to the policyholder in writing or orally. First of all, the main purpose of an insurance company distributing leaflets through schools is to attract parents of students to take out insurance. The nature of the leaflets is similar to advertisements and does not belong to the category of insurance certificates. At the same time, the part of the leaflet that needs to be signed by parents is only the "power of attorney for the insurance broker of" learning accident insurance ", and there is nothing to remind parents to pay attention to the exemption clause. An insurance company also did not explain the exemption clause in other ways. Therefore, the leaflet alone cannot prove that an insurance company has fulfilled its obligation to prompt the exemption clause, let alone that an insurance company has fulfilled its obligation to explain. Secondly, in accordance with the "'Learning Insurance' insurance broker power of attorney" contained, the insurance broker accepts the student's parents entrusted to handle the insurance and claims procedures, but the insurer's reminder to the policyholder that the obligation is not exempted by the policyholder entrusting the insurance broker to handle the insurance procedures. Because the counterparties to the insurance contract are the insurer and the policyholder, the insurance broker only handles the insurance procedures on behalf of the policyholder, not an independent party, the insurance broker handles the insurance procedures in the name of the policyholder rather than in his own name, and the insurer fulfills the obligation to prompt the policyholder rather than the insurance broker. Therefore, an insurance company advocates that the act of exercising the obligation of prompting the insurance broker has the effect on the insured, which is contrary to the connotation of the entrustment agent system, and the court will not adopt it. In summary, an insurance company claims that it has fulfilled its obligation to clearly explain the exemption clause to the policyholder, and the court does not support it on insufficient basis. With regard to the second focus of the dispute, whether the policyholder has intentionally or through gross negligence failed to perform the obligation of truthful disclosure. Article 16, paragraph 1, of the the People's Republic of China Insurance Law stipulates: "If an insurance contract is concluded and the insurer inquires about the subject matter of the insurance or the relevant situation of the insured, the applicant shall truthfully inform it." However, from the ''Statement of Situation'' provided by a primary school, it can be seen that from the entire process of issuing leaflets, parents' signatures, premium collection, and policy delivery, an insurance company has not directly contacted the parents of the students, and there is no formal inquiry procedure for the subject matter of the insurance or the insured. The only evidence available is that the "power of attorney for 'academic insurance' insurance brokers" in the leaflet mentions "whether there is a past illness" in the student information column ". As mentioned above, the leaflet is of an advertising nature and does not constitute a process for the formal conclusion of an insurance contract, and the relevant content on the leaflet is not sufficient to enable the policyholder to pay enough attention to and have a clear understanding of the meaning and consequences of the check. Moreover, from the fact that an insurance company stated that the leaflet was retained by the school, it can be seen that an insurance company did not in fact review the contents of the leaflet at the time of underwriting and used it as the basis for underwriting. To sum up, regardless of whether the applicant has checked "whether there is a past illness" and how to check, it cannot be determined that the applicant has intentionally or failed to fulfill the obligation of truthfully informing due to gross negligence. The relevant claims of an insurance company lack basis and the court will not support them. Whether the applicant signs the leaflet or not does not affect the determination and handling of the case. The court of first instance did not allow the investigation and evidence collection, which is not improper. Lawyer Advice] China's insurance law and judicial interpretation on the insurance company for the insurance contract exemption clause of the prompt explanation obligation has clear provisions, but in practice there are disputes caused by the obligation to fulfill the determination of disputes. In this case, the court held that the leaflet distributed by the insurance company through the school did not belong to the scope of the insurance certificate. The leaflet did not indicate that parents should pay attention to the exemption clause, and the insurance company did not explain the exemption clause through other means. The leaflet alone cannot prove that the insurance company has fulfilled its obligation to explain the exemption clause. Through this case, it is suggested that insurance companies should pay attention to fully fulfilling the statutory responsibilities of the insurer. For the exemption clauses that are prone to disputes, they should adopt appropriate methods to fulfill the obligation of reasonable and sufficient prompts to the insured when accepting insurance, and pay attention to retaining Relevant evidence to avoid mere formality.
2021-12-09
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
