Shi Guangbo's lawyer taught Weifang municipal government and social capital cooperation (PPP) business training course.

On December 1, at the invitation of Weifang Municipal Finance Bureau, lawyer Shi Guangbo, deputy director, senior partner, head of PPP business and legal expert of PPP expert library of the Ministry of Finance, attended the 2021 Weifang Municipal Government and Social Capital Cooperation (PPP) business training course. In the morning, lawyer Shi Guangbo took "understanding and handling of issues related to PPP projects" as the theme, combined with real PPP project examples and dispute cases, and explained the hot and difficult issues in PPP project implementation, such as the impact of the legal nature of PPP project contracts on the project, the practice of project contract performance, the early termination of project contracts, the restriction on equity change of project companies, project financing, project over-planned investment, insufficient user payment, etc. In the afternoon, lawyer Shi Guangbo and relevant staff of the PPP Center of Weifang Finance Bureau jointly answered and consulted on the PPP policy, project operation and related legal issues raised by the trainees. Over the years, Zhongcheng Qingtai Law Firm has attached great importance to the professional development of PPP business, provided high-quality and efficient legal services for a number of PPP projects, and has been highly recognized and evaluated by many parties. The services of Zhongcheng Qingtai PPP project include: special consultation in the early stage of PPP project, project review and special legal argumentation, project normative review, legality review of project contract, special legal service for project financing, legal consultation for supervision and performance evaluation in the late stage of project, SPV legal consultant, special consultant for project renegotiation, special consultant for early termination of project, legal service for dispute and dispute resolution of PPP project, etc.

2021-12-02

Dynamic, Zhongcheng Qingtai lawyer to help Hengfeng Bank Hengxin system put into production online.

On November 29, Hengfeng Bank Co., Ltd. took 2 years to build a new generation of enterprise-level full-function system-Hengxin system put into operation. This is the country's first joint-stock commercial bank core system to achieve a one-time overall upgrade of business and system, and it is also Shandong's first online component-based, digital, and intelligent full-function banking system. Compared with the original system, the perseverance system has achieved various capacity improvements, with the new core processing capacity increasing by 6.38 times, the card business transaction processing capacity increasing by 23.8 times per second, and the online payment business transaction processing capacity increasing by 17.7 times per second. After accepting the entrustment of hengfeng bank, zhongcheng qingtai (jinan) law firm has set up a service team with director geng guoyu as the chief director and department directors hu youbin, mou xun, practicing lawyers ma xuqian, wang mei and mao xiang as the core members, providing on-site project negotiation, professional legal advice, daily consultation and other full-process legal services for the commissioning of the persistent system, assist the relevant business departments of Hengfeng Bank to ensure the timely production of Hengxin system, and obtain the praise and recognition of customers.

2021-12-02

Viewpoint... Analysis of the legal liability of the employer to issue a certificate of separation for the worker.

The so-called resignation certificate is called the certificate of termination or termination of the labor contract in the labor law. In practice, disputes caused by the employer's failure to issue a resignation certificate and the content that should be stated in the resignation certificate are common. It is the legal obligation of the employer to issue the resignation certificate of the 1.. The first paragraph of Article 50 of the "Labor Contract Law" stipulates: "The employer shall issue a certificate of termination or termination of the labor contract when the labor contract is terminated or terminated, and handle the transfer of files and social insurance relations for the laborer within 15 days. formalities." Article 24 of the "Regulations on the Implementation of the Labor Contract Law" stipulates: "The certificate of termination or termination of the labor contract issued by the employer shall specify the term of the labor contract, the date of termination or termination of the labor contract, the job position, and the number of years of work in the unit." The "shall be stated" in this article can be understood as "must be stated", which is a necessary clause of the resignation certificate, but is it not allowed to record other contents? There are different understandings in practice. The author thinks that the content of the certificate issued by the employer to terminate or terminate the contract should be judged from the nature of the subject of the employer's act. Both employers and workers are equal civil subjects in civil acts. According to the general principle of civil acts of "freedom without prohibition by law", although the "Regulations on the Implementation of the Labor Contract Law" stipulates that employers issue the termination or termination of labor contracts. The content of the certificate, but there is no prohibition on the relevant matters issued by the employer to terminate or terminate the labor contract. Therefore, it does not violate the provisions of laws and regulations for the employer to specify the reasons for the termination of the contract in the certificate of termination or termination of the labor contract. The first paragraph of Article 50 of the "Social Insurance Law" stipulates: "The employer shall promptly issue a certificate of termination or termination of the labor relationship for the unemployed, and notify the list of the unemployed within 15 days from the date of termination or termination of the labor relationship. Social insurance agency." In practice, many employers do not issue resignation certificates because the workers still have outstanding matters and have not yet been handed over clearly. Can the employer defend against this? According to the above provisions, it is the legal obligation of the employer to issue a resignation certificate, and whether the worker is clearly handed over is not a prerequisite for the employer to issue a resignation certificate. Therefore, the employer cannot refuse to issue a resignation certificate on the grounds that the worker has outstanding matters. 2. the legal liability of the employer for not issuing the resignation certificate There are two legislative purposes for the employer to issue a resignation certificate: one is the requirement for the reemployment of workers, and the other is the need for workers to register for unemployment. Article 89 of the "Labor Contract Law" stipulates: "If the employer violates the provisions of this law and fails to issue a written certificate to the laborer to terminate or terminate the labor contract, the labor administrative department shall order it to make corrections; if damage is caused to the laborer, it shall be liable for compensation." If the employer does not issue a resignation certificate to the laborer in accordance with the regulations, it may prevent the laborer from re-employment, and may also cause the loss of the laborer's unemployment insurance benefits. If the employer causes damage to the laborer, it shall be liable for compensation in accordance with the law. In practice, there are two main types of compensation disputes caused by the employer's failure to issue a resignation certificate: one is to compensate the worker for the loss of wages caused by the lack of a resignation certificate, and the other is to compensate the worker for the loss of unemployment insurance benefits. Loss of wages due to (I) non-employment Article 91 of the "Labor Contract Law" stipulates: "If an employer recruits a worker whose labor contract with other employers has not yet been terminated or terminated, and causes losses to other employers, it shall bear joint and several liability for compensation." In practice, most employers require new employees to provide proof of separation based on risk control requirements. If the employer does not issue a separation certificate to the worker, it may affect the employment of the worker and there is a risk of liability. Loss of (II) unemployment insurance benefits The second and third paragraphs of Article 50 of the Social Insurance Law stipulate: "An unemployed person shall go through unemployment registration at a designated public employment service agency in a timely manner with a certificate of termination or dissolution of labor relations issued by his or her unit. The unemployed person shall go through the formalities of receiving unemployment insurance benefits at a social insurance agency with his or her unemployment registration certificate and personal identity certificate. The period for receiving unemployment insurance benefits shall be calculated from the date of unemployment registration." Article 19 of the Ministry of Human Resources and Social Security's "Several Provisions on the Implementation of the the People's Republic of China Social Insurance Law" (Order No. 13 of the Ministry of Human Resources and Social Security) stipulates: "If the employer refuses to issue a termination or termination certificate to the employee when terminating or terminating the labor contract, resulting in the employee being unable to enjoy social insurance benefits, the employer shall be liable for compensation according to law." The certificate of termination or dissolution of the labor relationship issued by the employer is a necessary condition for the worker to register for unemployment. Without a resignation certificate, workers may not be able to enjoy unemployment insurance benefits, and the employer shall bear the corresponding liability for compensation.

2021-12-01

Viewpoint | Criminal procedure trial remote video testimony system

The standardized operation of remote video testimony cannot be separated from the guarantee of three technical elements: personnel, material and technology. Although the economic development gap between the eastern and western regions of China is large, resulting in the uneven development level of network technology and the inconsistent construction progress of Internet courts, under the condition that the existing software and hardware equipment can effectively support remote video testimony, the space for the combination of remote video testimony and network information technology should be further improved, this paper will describe how to make remote video testimony more standardized and systematic from three aspects: perfecting the intelligent application mechanism of remote video testimony, establishing a fixed and mobile remote video testimony mode, and perfecting the standard mechanism of audio and video data storage, so that criminal proceedings participants and the public will gradually accept the remote video testimony method, and realize the leap from quantitative change to qualitative change in the crucial stage of "comprehensive coverage and gradual improvement" of remote video testimony. (I) and Improve the Intelligent Application Mechanism of Remote Video Testimony First of all, the electronic record of testimony is the basis and premise of intelligent testimony. The establishment and improvement of the synchronous generation mechanism of witness testimony along with the case file is inseparable from the "thousand-lamp mode" of paperless testimony in the whole process. Only by implementing the pre-identification of testimony (confirming whether the information of the parties in the trial is qualified and accurate through third-party organizations, I .e. software suppliers, public security identification systems and other means), and quickly labeling cataloguing (implementing the "fast labeling instructions" fast ", only by realizing continuous labeling, staggered labeling, editing labeling, etc.), synchronous circulation of testimony records (synchronous generation and circulation of verbal evidence such as witness testimony and victim statement), one-click accurate return to justice, and full tracking, can the automation and intelligence of witness testimony, litigation service and judicial management be realized as soon as possible. Secondly, we should promote an all-round intelligent auxiliary case handling mechanism, promote the remote litigation diversion mode, cater to the principle of "fine handling of suspected cases (online and offline joint handling) and quick handling of simple cases (online and integrated process)" criminal litigation economy and proportionality, avoid the dilemma of "excessive procedures" for simple cases and "insufficient procedures" for complex cases, and thus realize a multi-value system of accurate diversion of different procedures. At the same time, we should actively develop a multi-functional testimony platform, improve voice recognition, risk warning, portrait generation, automatic inspection and other auxiliary functions to improve the quality of criminal trial. Finally, strengthen the supervision and management of intelligent testimony. Actively explore the "dual-seat" testimony mechanism (PC PC, MB, PC MB), keep the emergency contact number unblocked during the testimony process, do not replace the testimony, do not accept any form of assistance from any organization, and do not use virtual (virtual) background to prevent human operation of witnesses to give testimony. Standardize and improve the supervision system for testimony, and gradually establish a unified platform with real-time evidence storage, asynchronous cross-examination and efficient testimony (hereinafter referred to as the three certificates) to ensure that the testimony process leaves traces and data is safe and reliable. (II) the establishment of fixed, mobile remote video testimony mode Explore the establishment of a "point-to-face" remote video testimony model. As mentioned above, on the basis of establishing diversified remote video testimony sites, in order to prevent the content obtained through the "three certificates" from being deleted, embezzled and intercepted, it is not suitable to use the external network for online testimony for a long time. Therefore, in judicial practice, the matter establishes a fixed "point" (court) to "face" (notary office, procuratorate, law firm, residence, fair unit, etc.) remote video testimony mode through encrypted network channels and separate operation of internal and external networks. In short, a remote video testimony system is set up between public security organs and other organs nationwide, so that witnesses can choose the nearest place to testify, so that judicial personnel can conduct remote video questioning and cross-examination of witnesses in the same city or other places in this organ, breaking the time and space restrictions and reshaping the testimony mode. In addition, while the remote video testimony system is perfect, organs at all levels should actively try to establish remote video testimony studios to integrate data encryption, transmission speed, coverage and other aspects through virtual private network (VPN). Of course, in order to avoid the possibility of "weakening the antagonism of court hearings", testimony studios should also be hung with national emblems, set up special split-screen displays, supervisors seats, timing devices, etc. After the completion of the testimony procedure, the electronic and paper testimony transcripts and audio and video recordings of the testimony shall be transmitted or mailed to the court. Of course, before the construction of facilities in fixed places such as testimony studios is not yet perfect and mature, it is also possible to vigorously promote litigation platforms such as "mobile micro-courts" or to jointly develop APP with special functions such as audio-visual recording, face recognition, remote video testimony, etc. (III) Improve the Standard Mechanism of Audio and Video Data Storage As electronic evidence, the acquisition, preservation and transmission of audio-visual materials for remote video testimony in criminal cases should set up relatively strict standard procedures, such as special examination of the electronic signature on the testimony transcript and prevention of personal information disclosure during transmission. At the same time, the electronic evidence generated after the completion of the witness's testimony should be numbered in the court system terminal in time, indicating the case attribute, production time, place and other relevant information. In the same criminal case heard by the court, all the evidence formed by multiple inquiries of a single or multiple witnesses should be clearly distinguished and classified, uniformly stored in the original folder, and sub-folders should be established as needed to facilitate later inquiries. In the process of importing (sending out) audio and video materials, check whether the contents of the files are consistent with the original data contents such as file materials, and pay attention to the types of video and audio formats (AVI, DAT, RMVP, MP4, AIFF, MPEG, etc.) formed by remote video testimony, because different formats correspond to different volumes, image quality, compression rates, standards, etc, this will affect the transmission speed, storage space and player selection of audio-visual materials. In order to avoid the transmission of video and audio electronic evidence between different organs, such as slow transmission and inability to play, a unified video and audio format and special player should be adopted between the court and the remote video testimony place. In addition, due to the vulnerability of the audio-visual data storage carrier itself and the high requirements for the storage environment, the "preservation" should not only stay at the technical level, but also pay attention to the management level. The relevant departments of the court should formulate the early warning and priority preservation mechanism of the storage scheme, create a good carrier storage environment, and avoid the irretrievable data caused by carrier corrosion. At the same time, the carrier maintenance is divided into "key" maintenance and "routine" maintenance. When the maintenance period expires, the relevant data will be removed from the "maintenance" range, the storage carrier indicators will be regularly detected, the risk limit value will be set, and the storage information will be migrated, copied and simulated (OAIS reference model) if necessary.

2021-12-01

Viewpoint | The mandatory exit mechanism of employee stock ownership in state-owned enterprises.

The reform of state-owned enterprises is a major strategic step for the central government to implement the policy of strengthening and increasing state-owned enterprises, which meets the objective needs of building a socialist market economy. Employee stock ownership can effectively increase the cohesion of enterprises and become an important part of the current round of mixed ownership reform of state-owned enterprises. Employee shareholding in state-owned enterprises involves a series of issues such as the company's equity structure, the daily management of employee equity and exit. In practice, the exit process of employee equity is more complex. Therefore, how to strike a balance between complying with laws, regulations and policies and ensuring the rights and interests of employees is not only related to the reform results of state-owned enterprises, but also related to the development of enterprises and the stability of the company's equity structure. An exit mechanism for employee shareholding. (I) classification According to the detailed rules for the implementation of the pilot work of employee stock ownership in state-owned enterprises in Shandong Province, the withdrawal of employee stock ownership includes voluntary withdrawal and compulsory withdrawal. The voluntary transfer mechanism is aimed at the situation where employees voluntarily withdraw from equity after the expiration of the lock-up period. Compulsory withdrawal is based on the basic principle of binding the interests of the pilot work of employee stock ownership in state-owned enterprises and fixing shares by post. When the position or status of an employee changes and no longer meets the conditions for holding shares, the mandatory withdrawal mechanism of employee stock ownership should be triggered to realize the change of post and stock and the withdrawal of shares. The forced withdrawal of employee stock ownership in (II) state-owned enterprises. Forced exit, also known as conditional forfeiture exit, refers to the loss of the original shareholding conditions, resulting in the loss of the employee's corresponding shareholding qualifications, thereby giving up the shares held. It can be roughly divided into two situations: one is job change. After the employee is transferred according to the requirements of the company, the new position does not apply to the employee stock ownership plan; the other is that the labor relationship between the employee and the company is terminated, and the original shares should be withdrawn. With regard to the compulsory withdrawal of employee stock ownership in pilot enterprises, Article (III) of Part IV of the opinions points out that if a shareholding employee leaves the company due to resignation, transfer, retirement, death or dismissal, the shares shall be transferred internally within 12 months. Two basic rules of compulsory withdrawal mechanism (I) Assignee 1, employee shareholding platform or company. 2. Eligible employees 3. Shareholders or management (II) exit price The Opinions point out that if it is transferred to a shareholding platform, qualified employees or non-public capital shareholders, the transfer price shall be determined through consultation between the two parties; if it is transferred to a state-owned shareholder, the transfer price shall not be higher than the audited net asset value per share of the previous year. The transfer of shares by employees of state-controlled listed companies shall be handled in accordance with the relevant provisions of securities supervision. (III) Forced Exit Classification 1, employee shareholding is not responsible for mandatory withdrawal. The triggering situation of normal employee resignation can be understood as the situation that the employee needs to quit due to the subjective fault of the employee, including:(1) formal retirement;(2) during the contract period, the employee loses the ability to work due to work injury or illness, quits the job and terminates the labor contract;(3) dies or is declared dead;(4) the company terminates the labor contract according to law due to incompetence;(5) The employee proposes to terminate the labor contract and does not join the competitor company within 2 years after the termination of the labor contract;(6) The company and the employee negotiate to terminate the labor contract;(7) The labor contract is terminated due to the transfer of the company;(8) The shareholding employee has other circumstances stipulated in the labor contract. If an employee involved in the shareholding withdraws due to a normal departure, the shareholding shall be withdrawn in one lump sum within a window of 12 months after the departure. 2, employee shareholding is responsible for mandatory withdrawal. A compulsory withdrawal is a situation in which the shareholding employee must withdraw from the shareholding due to a violation of the law, company regulations or due to the fault of the shareholding employee. The abnormal resignation of employees includes:(1) leaving the company without going through the resignation procedures;(2) engaging in similar competitive business with the company during or after leaving the company;(3) violating laws and regulations and company rules and regulations, the company terminates its labor contract according to law;(4) causing great economic losses to the company due to fault;(5) The shareholding employees have other violations stipulated in the labor contract. If an employee involved in a shareholding withdraws due to an abnormal separation, his shareholding must be withdrawn in full at one time when the abnormal separation situation is met. The exit price is not higher than the original purchase price. Three-strong exit operation process and practical dilemma solution (I) Force Exit Process 1, no responsibility forced exit process (1) No liability forced exit trigger event occurs. (2) Application or notice Depending on the triggering event, the shareholding employee shall submit a written application to the equity management institution or the equity management institution shall issue a notice of compulsory withdrawal of the equity ex officio. (3) Submission of materials For different situations of compulsory withdrawal without responsibility, the shareholding employee or the relevant entity shall submit different materials for withdrawal within a certain period of time, such as: if the shareholding employee resigns: a resignation letter, a resignation certificate and other documents shall be submitted to the shareholding management agency; If the shareholding employee dies or is declared dead: the successor or the person entrusted by the successor shall submit the death certificate or legal document and cooperate with the relevant formalities; If the shareholding employee needs to forcibly divide the property for personal reasons: if the shareholding employee needs to forcibly divide the personal property due to litigation, divorce and other reasons, relevant legal documents and agreements shall be submitted; Other circumstances in which the labor contract is terminated not due to the fault of the shareholding employee: submit the corresponding materials according to the specific circumstances. (4) Approval by the equity management agency (5) Determination of transferee shareholders and price (6) Complete the internal process (7) Sign the equity transfer agreement (including the time of payment of the transfer, the method of payment, etc.) and other agreements that need to be signed. 2. Responsible compulsory withdrawal process (1) The occurrence of a responsible mandatory withdrawal trigger event. (2) Notify and inform them of their obligation to cooperate When a responsible forced exit situation is triggered, the equity management agency shall issue a notice to the employee, which shall state the reasons for the employee's exit, the materials it should submit, and the work to be completed with the company. Depending on the circumstances of the withdrawal, the person who needs to withdraw is required to prepare the appropriate materials to submit to the company. (3) Implementation of the equity exit price in accordance with the provisions of the employee shareholding scheme (4) Complete the internal process Solving the Practical Dilemma of (II) Forced Exit 1, employee shareholding mandatory withdrawal from the validity of the articles of association provisions. At present, the policy of mandatory withdrawal of employee stock ownership is relatively general. Therefore, under the premise of not violating the "Company Law" and other laws and regulations, it is mainly based on the company's articles of association and the employee stock ownership plan formulated when establishing the employee stock ownership plan. The validity of the articles of association is usually based on the principle of not easily denying the validity of the articles of association in order to maintain the validity of the articles of association and the stability of the company's operation. When the formal elements of the charter are available, practice tends to affirm the validity of the employee's withdrawal clause. 2. Equity adjustment under special circumstances (no one takes over the equity, state-owned shareholders, non-state-owned shareholders and qualified employees inside and outside the platform are unwilling to accept or do not meet the requirements) If the employee's equity is forced to withdraw and the unqualified employee purchases, the employee shareholding management committee shall adjust it according to the actual situation until the company's registered capital is reduced. The methods of adjustment available to the Shareholding Management Committee are: (1) The nominee holding entity that plans to reserve equity is temporarily acquired for subsequent incentives; (2) Giving the platform a share repurchase function, whereby the shareholding platform buys back the shares, and the platform may use the repurchased shares as reserved shares for future incentives for employees; (3) Appropriate adjustment of employee shareholding conditions (e. g. relaxation of conditions) to allow employees who are willing to buy to buy; (4) Whether the state-owned shareholders and non-state-owned shareholders of the target enterprise are willing to buy, and if they still do not take over the main body, the capital will be reduced. Four Conclusion Most of the enterprises that adopt employee stock ownership focus on the entry of employee stock ownership in the early stage, but relatively ignore the design of the compulsory exit mechanism of employee stock ownership, which leads to the non-standard and unsmooth of the compulsory exit link in practice. Enterprises need to establish a more stable and objective mandatory exit mechanism in the employee stock ownership system to ensure the smooth progress of the mandatory exit of employee stock ownership and to ensure the full play of the advantages of the employee stock ownership policy of state-owned enterprises.

2021-12-01

Point of View | On the "Third Norms" to Contain Artists' Anomie Behavior -- Also Comment on the Disciplinary Measures in the "Administrative Measures for Self-discipline of Artists in the Performance Industry (Trial)"

In recent years, the phenomenon of well-known artists breaking the law and losing morality has repeatedly appeared in the newspapers, which has aroused widespread concern from all walks of life. Since 2014, the relevant competent departments of the state have issued a number of "ugliness restriction orders", aiming to curb the anomie behavior of artists, so as to make up for the lack of relevant legislation in the field of entertainment in China. In addition to the "rigid" system of "heteronomy" and "flexible" self-discipline measures, the author believes that from the perspective of "common law", we can try to construct and improve the "third norm", give full play to its special effect of "combining strength and softness", and help curb artists' anomie behavior. 1. what is the "third norm"? According to the author's opinion, the expression of "the third norm" was first put forward by Ms. Xu Xun, a well-known media law expert in China. She believes that the law is open, stable and strongly binding, but it is generally not focused on a certain industry, but has universal applicability, so its specific operability is slightly weaker; although professional ethics has varying degrees of operability, But it is basically not mandatory, which reduces the binding force; although policies, disciplines and experience have strong operability and binding force, they do not conform to the principle of the rule of law because of their weak openness, at the same time, its normative value is greatly reduced due to its instability. She proposed that the advantages of the above various normative forms can be absorbed, summarized and recombined to produce an open, industry consensus, clear content, relatively stable, written expression, strong operability and certain mandatory The industry standard can be called "the third norm" or "industry regulation". The "third specification" mentioned in this article is different from the general "industry standard". The latter is a general business standard for a specific field formulated and issued by industry associations or other competent departments according to the relevant specifications of the National Standardization Committee. The purpose is to standardize and unify the business without direct punitive content for violators. For example, the "Performance Ticketing System Service and Technical Specification" (WH/T 93-2021) issued by the Ministry of Culture and Tourism on July 19, 2021 and implemented on August 19, stipulates the technical requirements, functions, server management, communication protocols and data formats of interfaces such as the performance ticketing management system and ticketing sales system, and puts forward basic requirements for the data collection interface of performance ticketing data, it does not involve punitive provisions that violate the industry standards. China's entertainment industry pays more attention to the construction of general industry standards. According to the statistics of the "industry standard" part of the government information disclosure of the Ministry of culture and tourism, as of November 22, 2021, a total of 127 national level industry standards have been established, but there is no "third specification" in a complete sense ". 2. the "third norm" in the "measures for the self-discipline management of performers in the performance industry (for Trial Implementation)" On February 5, 2021, the China Performance Industry Association (hereinafter referred to as the "China Performance Association") issued the "Administrative Measures for the Self-discipline of Performers in the Performance Industry (Trial)" (hereinafter referred to as the "Administrative Measures"), which will be implemented from March 1. Article 1 of the "Administrative Measures" clearly stated the purpose of regulating the professional behavior of artists, that is, "in order to continuously improve the professional quality of entertainers in the performance industry (hereinafter referred to as'entertainers'), regulate the professional behavior of entertainers, and strengthen the self-discipline management of entertainers. Establish a good professional image of entertainers and promote the healthy development of the performance industry". The content of Article 1 also shows that the nature of the "Administrative Measures" is a "self-discipline" norm, which is another important measure for our country to curb artists' anomie behavior from the perspective of self-discipline. It is worth noting that although the "Administrative Measures" belong to self-discipline norms as a whole, there are also some mandatory norms, especially punitive measures, which can be classified as the "third norm. For example, Article 5 of the "Administrative Measures" stipulates that if an entertainer violates the practice norms, the China Performance Industry Association shall implement self-discipline and disciplinary measures within the scope of its practice in accordance with these Measures. Article 6 also stipulates the basic principles for the implementation of self-discipline and disciplinary measures, that is, the implementation of self-discipline and disciplinary measures for entertainers who violate the norms of practice shall follow the principles of objectivity, impartiality, openness and transparency, fairness and prudence, adhere to the combination of education and punishment, adapt the circumstances of violations to the disciplinary measures, and carry out work in accordance with the rules and regulations on the basis of facts. The second chapter of the "Administrative Measures" "Practice Standards" expresses the "should be" and "do not do" of entertainers from both positive and negative aspects. In view of the fact that the "do not do" behavior is closely related to the artist's anomie behavior and is the "Administrative Measures" The applicable behavior objects of disciplinary measures need to be analyzed. Article 8 of the "Administrative Measures" stipulates 15 kinds of "do not do" behaviors, mainly illegal behaviors, supplemented by unethical behaviors; while listing typical behaviors, it is also supplemented by unethical and illegal "bottom-up" clauses. Strong coverage. From the perspective of the two more representative "bottom-up" clauses, there is no simple "one size fits all" approach, but it is screened according to the situation. For example, item 14 of Article 8, "other circumstances that violate ethics or social public order and good customs and cause serious adverse social impact", especially emphasizes the condition of "causing serious adverse social impact"; Item 15, "other circumstances expressly prohibited by laws and administrative regulations", emphasizes the hierarchy of "laws and administrative regulations" and the two key elements of "express prohibition. These two provisions also show that we should adhere to the principle of examination when determining the "do not do" behavior in the "management measures", so as to avoid arbitrarily expanding the "anomie behavior. The "Administrative Measures" established a "moral construction committee" composed of relevant personnel inside and outside the industry, which enhanced the credibility of disciplinary measures. Article 15 of the "Administrative Measures" stipulates four disciplinary measures that can be taken, including "conducting criticism and education", "disqualification of participating in various related evaluations, commendations, rewards, and subsidies in the industry", and "according to the severity and severity of the circumstances of the entertainer's violation of the professional norms. Degree of harm, the implementation of 1 year, 3 years, 5 years and permanent and other different degrees of industry boycott" "in cooperation with other industry organizations to implement cross industry joint punishment". The first two are "soft" measures, while the latter two are "hard" measures. The four measures can be implemented separately or in combination. The "hard" measures against the behavior of "do not do" are mandatory and belong to the "third norm" in a sense, which not only restricts the performance rights of anomie artists, but also restricts the relevant rights of publicity and promotion, which plays an irreplaceable role in curbing the anomie behavior of artists. On August 15, 2021, the China Performing Arts Association issued the first "Disciplinary Announcement" after the implementation of the "Administrative Measures": "This Association will morally reprimand the improper behavior of actor Zhang Zhehan in visiting the Yasukuni Shrine, and in accordance with the" Performing Arts in the Performance Industry "According to the provisions of the Administrative Measures, member units are required to boycott their practice." On October 22, the China Actors Association once again issued a "disciplinary notice" to boycott Li Yundi, who committed illegal prostitution. In addition, Articles 17 and 18 of the "Administrative Measures" also specifically stipulate the disciplinary procedures, especially granting the rights of anomie artists to defend and return requests, forming a relatively complete disciplinary and relief procedure. On the whole, although the "Administrative Measures" belongs to the category of self-discipline norms as a whole, it has added a "third norm" that is mandatory for punishment, and the disciplinary procedures are fair and reasonable, and the disciplinary measures are in line with the principle of proportionality, and there is no collective resistance in general industries. The problem of violating the anti-monopoly law. 3. extensive construction and improvement of the industry-wide "third norms" The "Administrative Measures" of the China Performing Arts Association is only applicable to specific artists, that is, "performers engaged in music, drama, dance, folk art, acrobatics and other forms of live theatrical performances in China", although its applicable "scope of employment" Relatively broad, but still cannot cover all artists. In addition to the China Performance Association, there are other industry associations related to artists in China. In order to implement the requirements of the "Notice on Carrying out Comprehensive Management Work in the Cultural and Entertainment Field" issued by the Central Propaganda Department in September 2021, and give full play to the role of industry punishment, the "third norm" for all artists' behaviors should be drafted and implemented as soon as possible in the entire industry. Make up for the lack of legislation in the cultural and entertainment field, and give full play to its advantages of strong pertinence, good operability, stability and compulsion, as soon as possible to effectively curb the high incidence of illegal artists such as misconduct.

2021-11-30

Viewpoint | "Persuade You to Drink More": How to Party and Drink Without Responsibility?

Cause of action Right to health disputes Brief facts of the case Plaintiff Li mou, who lives in other places all the year round, went to a certain place to attend the wedding due to his friend's marriage. after that, he and the 5 defendants had dinner in a hotel on March 1, 2020, which ended at about 23 o'clock. On the way back to the hotel, the plaintiff Li mou and the defendants Wang mou and Xie mou were together to urn, the plaintiff accidentally fell to the ground and fell into a coma. the accompanying Wang mou and Xie mou called 120, and the plaintiff was immediately sent to the hospital for emergency treatment. the emergency diagnosis was "preliminary diagnosis: acute alcoholism, acute closed craniocerebral injury", and the admission diagnosis was "1. acute closed craniocerebral injury; multiple brain contusion and laceration, left frontal lobe contusion and intracerebral hematoma, diffuse axonal injury, traumatic subarachnoid hemorrhage, scalp contusion, frontal fracture, epilepsy, cerebral hernia; 2, acute myocardial infarction; 3, hemorrhoids", the external cause of injury and poisoning is "accidentally leaning back on the ground, injuring the head". In this case, the defendant Wang is the organizer of the party, Li and Xie usually work and live in other places, Wang, Li and Xie are in close contact, and the other three female defendants are not familiar with the plaintiff Li. In the course of the lawsuit, the plaintiff entrusted the appraisal institute according to law to identify his disability grade, the number of nurses, the duration of nursing and the duration of nutrition; and entrusted the judicial appraisal institute for mental illness according to law to identify his mental disability grade, the number of nurses, the duration of nursing and the duration of nutrition. Analysis of referee rules Co-drinking behavior is a collective activity organized between co-drinkers, and co-drinkers have appropriate reminders, care, protection, notification and other duty of care. In combination with this case, first of all, as a person with full capacity for civil conduct, the drunk casualty should foresee the harmful consequences of drinking and control his own behavior when drinking, but he still drinks more than he can bear, and then the plaintiff should bear the absolute main responsibility (generally 70%-80%). Second, the responsibility comes from the obligation, the obligation comes from the statutory or agreement. The obligation of safety and security is a kind of legal obligation. When drinking at a party, the organizer can not be exempted from liability in the case of accidental injury and death after drinking because of its special role in the party banquet. The organizer shall have the duty of care for the personal safety of the participants of the party banquet, and shall have the obligation to provide necessary assistance, care and escort. The specific obligations are as follows: the organizer has the obligation to consider and grasp the general situation of each person, and according to the prior understanding of each person, take the initiative to judge the physical characteristics of the participants, timely remind and advise everyone to drink properly, if there is excessive drinking, give necessary assistance and proper care. If the plaintiff feels unwell after drinking at the party, the organizer is obliged to take timely, reasonable and necessary measures. For example, according to the experience of ordinary people to judge the physical condition of peers, if the body out of control, should also arrange effective ways to ensure safe home, if necessary, should also be sent to a doctor for observation. Party organizers: absolute secondary responsibility (10%-15%) Third, ordinary co-drinkers cannot stay out of it either. Drinking itself has a certain risk, which will reduce people's control and judgment. Drinking together means that companions let themselves be in a dangerous situation. Companions are generally relatives and friends. It is precisely because of trust and closeness that they drink together. Therefore, based on the principle of good faith, the first act of joint participation in drinking gives rise to the obligation of mutual assistance, and ordinary co-drinkers are also obliged to provide necessary help and support. General co-drinkers: general liability (2%-5%) Fourth, the three female defendants in this case are not liable for compensation due to special circumstances. Defendant women 1 and 2 did not drink alcohol and did not act to persuade them to drink. Defendant female 3, who is not familiar with the plaintiff, did not drink alcohol, did not persuade her to drink and left the table early. The plaintiff's damage consequences do not have a direct causal relationship with the three female defendants, and the three female defendants are not at fault and should not bear civil liability in this case. Extended interpretation 1. attending the party, the organizers and participants of the party signed the "Safety responsibility commitment" and "exemption Agreement". Can the organizers and drinkers be exempted from liability? Article 8 of the Civil Code Civil subjects engaged in civil activities shall not violate the law, public order and good customs. Article 153 of the Civil Code Civil juristic acts that violate the mandatory provisions of laws and administrative regulations shall be null and void. However, the mandatory provisions do not cause the civil juristic act to be invalid. Civil juristic acts that violate public order and good customs are invalid. Article 506 of the Civil Code The following disclaimers in the contract are invalid: (I) causing personal injury to the other party; (II) cause damage to the other party's property due to intentional or gross negligence. According to the above legal provisions, we can clearly conclude that these "exemption clauses" signed by co-drinkers are invalid because they violate the mandatory provisions of our laws and regulations. Since the law stipulates the safety guarantee obligation of the organizer, the organizer has the obligation to take certain measures in advance to prevent the damage, such as asking about the physical condition in detail, mobilizing family members to actively participate in the care, actively preparing necessary drugs, seeking professional help, etc., instead of using the agreement as a shield. By signing a disclaimer, the organizers try to evade responsibility not only does not conform to the general moral standards of the society, but also violates the mandatory provisions of the law. Therefore, even if the co-drinker signs the so-called "Party Drinking Responsibility Letter", if the co-drinker suffers injury or death after drinking, and the co-drinker is at fault, he still needs to bear the corresponding responsibility and is not exempt from liability by signing an exemption agreement. 2. what acts and circumstances, party drinking to bear legal responsibility? 1, due to alcohol induced disease, disability and even death Knowing that drunk people cannot drink alcohol, they cause heart disease, high blood pressure and other diseases to cause disability and death due to drinking; If the drinker induces the disease without knowing it, the drinker does not need to bear the fault liability, but the principle of fair responsibility should also bear the liability for compensation. That is to say, the drinker should bear the responsibility regardless of whether he knows that the other party cannot drink, but the former must bear greater responsibility. 2. Forced drinking In the process of drinking, there are obvious compulsive behaviors of persuading, such as verbal coercion, stimulation of the other party, forced drinking, etc., for the damage results, the persuading person should bear the corresponding liability for compensation. 3, drunk driving, bathing, strenuous exercise is not discouraged In the case of knowing that the other party is drunk driving and does not dissuade it, once the damage results occur, the co-drinker must bear certain responsibilities. If the drunken person does not listen to the dissuasion, the co-drinker can be relieved or exempted. However, if the co-drinker knows that the drunken person drinks too much, is incoherent and delirious, the co-drinker should be dissuaded from drinking, and if the accident occurs due to the failure to dissuade him when he can be dissuaded, he should also bear the corresponding responsibility. 4. Failure to deliver the drunk safely If the drunken person has lost or is about to lose control of himself, is unconscious and cannot control his own behavior, the co-drinker has a certain duty of guardianship at this time. If the co-drinker does not take the drunk to the hospital or let it arrive at a place of care (such as home), if an accident occurs at this time, the co-drinker shall bear the corresponding liability.

2021-11-30

Viewpoint | Interpretation of issues related to corporate restructuring of enterprises owned by the whole people

The corporate restructuring of state-owned enterprises is an important decision and deployment of the Party Central Committee and the State Council on deepening the reform of state-owned enterprises. After years of in-depth reforms, the corporate restructuring of state-owned enterprises in my country has now fully covered more than 90%, which has effectively promoted the separation of state-owned enterprises from government. The corporate governance structure is gradually improving. As the main organizational form of state-owned enterprises, enterprises owned by the whole people actively respond to the requirements of the central to local corporate system reform, and promote the continuous deepening of the reform of state-owned enterprises. This article is based on the "the People's Republic of China Enterprise State-owned Assets Law", "the People's Republic of China Company Law" (hereinafter referred to as the "Company Law"), "Enterprise State-owned Assets Transaction Supervision and Administration Measures", "Enterprise State-owned Property Rights Transfer Management Interim Measures", "Shandong Province State-owned Property Rights Transaction Management Measures," Implementation Opinions on Further Regulating the Restructuring of State-owned Enterprises "(Guo Ban Fa Fa [2005] No. 60)," notice on the Implementation Plan for the Restructuring Work (Guo Ban Fa [2017] No. 69), and the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses. List the main legal basis and normative policy document guidelines, and discuss the relevant practical issues in the process of corporate restructuring of enterprises owned by the whole people. 1. the corporate restructuring of enterprises owned by the whole people An enterprise owned by the whole people refers to a commodity production and business unit whose property belongs to the whole people, operates independently in accordance with the law, is responsible for its own profits and losses, and is an organizational form of state-owned enterprises in a broad sense. The target of the corporate system reform is enterprises owned by the whole people. According to the requirements of the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Reform of Central Enterprises", all enterprises owned by the whole people that operate normally should be restructured into limited liability companies registered in accordance with the "Company Law" Or joint stock limited companies, accelerate the formation of effective checks and balances of corporate governance structure and flexible and efficient market-oriented operating mechanism, therefore, enterprises owned by the whole people, cultural and financial enterprises owned by the whole people, if there are no other special regulations, all need to implement corporate reform. The reform of the corporate system of enterprises owned by the whole people should be carried out in accordance with the conditions of the enterprise, in line with the actual operation of the enterprise, and effectively promoted. Enterprises owned by the whole people that are difficult to be reformed due to suspension of production and business, revocation of business license, etc., can directly implement reorganization, integration or liquidation and cancellation in accordance with the reform requirements of inefficient and invalid asset disposal. In addition, it is agreed that after the parent company controls a number of subsidiary enterprises owned by the whole people, the parent company can also adopt the "sub-reform" method to cancel the subsidiary enterprises in accordance with the law and set up branches to undertake the business, assets and personnel related to the atomic enterprise. General process of 2. corporate restructuring In accordance with the provisions of the Company Law and the relevant requirements of industrial and commercial registration, enterprises owned by the whole people are transformed into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The specific process is as follows: (1) According to the specific conditions of the restructured enterprise (the basic situation of the restructured enterprise, financial status, operating status, personnel and social security, enterprise qualifications, land and real estate, etc.), weave a restructuring plan. If the resettlement of enterprise employees is involved, the employee resettlement plan shall also be formulated; (2) Formulate the articles of association of the company (for state-owned enterprises transformed into limited liability companies or joint stock limited companies, the articles of association shall be formulated in accordance with the State-owned Assets Law of Enterprises, the Company Law and relevant policy documents); (3) reporting to the registration authority the change of the name of the enterprise after the restructuring; (4) The restructuring plan shall perform internal decision-making procedures, and the employee placement plan shall be reviewed and approved by the employee representative assembly or the employee assembly; (5) To carry out the procedures for approving the restructuring plan and the articles of association of the company; (6) involving the liquidation of nuclear capital, asset assessment and other work, in accordance with the relevant provisions; (7) for industrial and commercial change registration; (8) Handling property rights, bank account changes and qualification succession, employee social security succession, labor contract succession or change, etc. Relevant contents of 3. restructuring plan When an enterprise owned by the whole people is transformed into a corporate enterprise, it is necessary to formulate a restructuring plan to clarify the organizational form and assets of the enterprise after the restructuring. The main contents of the restructuring plan include the following items: (1) Basic information of the enterprise; (2) The mode of restructuring (the organizational form of the enterprise after the restructuring and the establishment of the property right structure, etc.); (3) Basic information of the enterprise after the restructuring (name, domicile, legal representative, amount of registered capital and basis for determination, business scope, etc.); (4) Post-restructuring corporate governance arrangements (the establishment of shareholders' meetings, boards of directors, supervisory boards or supervisors and their related rights and obligations, etc.); (5) Employee placement; (6) Disposal of claims and debts; (7) Disposal of State-owned allocated land; (8) Party organization setup; (9) The succession of business qualifications. The above contents are the general contents of the restructuring plan, which should be determined in combination with the actual situation of restructuring into a wholly-owned subsidiary of a state-owned and state-owned enterprise holding enterprise and a diversified equity enterprise. Approval procedures for 4. restructuring plans The principle of examination and approval of the reform plan of the corporate system of enterprises owned by the whole people is to strictly control, earnestly and steadily promote the reform of the corporate system in an orderly manner, and prevent the loss of state-owned assets. According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), the restructuring of central enterprise groups into wholly state-owned companies shall be approved by the institutions authorized by the State Council to perform the duties of investors; The restructuring into a diversified equity enterprise shall be submitted to the State Council for approval in accordance with the procedures. The restructuring of a subsidiary enterprise of a central enterprise shall, unless otherwise specified, perform the examination and approval procedures in accordance with the relevant internal regulations of the enterprise. In accordance with the principle of "who contributes, who is in charge, and who is responsible", after being reported to the provincial bureau for filing and approval, the competent unit will examine and approve the enterprise restructuring plan. How to determine the registered capital involved in the restructuring of 5. companies? According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), enterprises owned by the whole people are restructured into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The audited net asset value of the previous year is used as the basis for determining the registered capital in the registration of industrial and commercial changes. Does the 6. need to be restructured into a corporate enterprise? When enterprises owned by the whole people implement the reform of the corporate system, they shall carry out the liquidation of assets and capital in accordance with the relevant provisions. Among them, for the implementation of enterprise accounting standards, the establishment of a standardized financial system, the most recent annual financial statements audited by an intermediary and issued a standard unqualified audit report, the enterprise to the restructuring plan approval unit for approval, may not carry out the liquidation of nuclear capital. If the competent department has other provisions, they shall be implemented in accordance with the provisions. Does the 7. restructuring plan need to be passed by the workers' congress? According to the relevant provisions of the "Enterprise State-owned Assets Law," if the restructuring of an enterprise involves the resettlement of employees, an employee resettlement plan shall be formulated and approved by the employee representative assembly or the employee assembly. 8. lawyers in the corporate restructuring. According to the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses, lawyers accept the entrustment of restructured enterprises to undertake the restructuring of state-owned enterprises and conduct due diligence. In the Legal Due Diligence Report, the following matters should generally be involved: (I) the verification of "establishment, evolution and change; (II) verification of the "basic operating structure; (III) the verification of "equity situation; (IV) verification of "tangible assets" (V) the verification of the "land use rights and other intangible assets; (VI) the verification of the "major contracts" signed or related by the restructured enterprise; (VII) the verification of "major claims and debts" of the restructured enterprises; (VIII) the verification of "major legal disputes, administrative penalties, etc." involved in the restructuring of enterprises; Verification of the "basic situation of personnel" of the (IX) restructuring enterprise; Lawyers can also request the restructured enterprise and the investigated object to provide other relevant documents or information according to the different restructuring plan, restructuring plan, characteristics and requirements. In the process of corporate restructuring, enterprises owned by the whole people should standardize their operations in accordance with laws and regulations and relevant regulations on the restructuring of state-owned enterprises and the management of state-owned property rights, strictly and carry out the decision-making and examination and approval procedures, strengthen and improve the supervision and guidance of the restructuring process, and promote the corporate restructuring of enterprises owned by the whole people in accordance with the requirements of centralized and unified supervision of the state.

2021-11-30

Lawyers from Zhongcheng Qingtai Attended the Launching Ceremony of Jinan City's Care for Retired Soldiers and Jinan High-tech Zone's Special Fund for Loving Soldiers

On the afternoon of November 26, 2021, the work of caring for veterans in Jinan City and the launching ceremony of the special fund for loving soldiers in Jinan High-tech Zone were successfully held on the intellectual property public service platform of Shandong Province. Yin Huili and Zhao Bin, partners of Zhongcheng Qingtai (Jinan) Law Firm, and Li Shuang, paralegal, attended the launching ceremony as representatives of caring enterprises. During the launching ceremony, Zhou Chunwei, founder and chairman of the Jinan Care for Veterans Foundation, and Pei Changqing, minister of the Development and Security Department of the High-tech Zone, delivered speeches at the launching ceremony. Zhang Guojun, honorary chairman of the Jinan Care for Veterans Foundation, and Zhou Chunwei, founder and chairman of the Jinan Care for Veterans Foundation, issued donation certificates and plaques to caring enterprises. The establishment of the Aibing Fund in Jinan High-tech Zone and the donation of legal services by law firms have enriched the content and methods of "public welfare legal services" and promoted the diversified new development of "public welfare legal services. Charity is not only the need of society, but also the need of love, but also the embodiment of the sense of social responsibility of enterprises and individuals. The establishment of the Aibing Foundation is a key step in promoting reform and development and promoting social stability. Zhongcheng Qingtai Law Firm will actively implement General Secretary Xi's important instruction of "Let soldiers become a profession respected by the whole society" with practical actions, and work with caring enterprises and people from all walks of life to contribute to the work of Aibing Fund and double support and joint construction. power!

2021-11-29

Viewpoint | Real Estate Bankruptcy Administrator's Determination of Claims Enjoyable by Owners of Housing- (2021) Reflections on the Case of Supreme Law Min Re -99

Brief 1. of the case On May 24, 2017, Yibin Intermediate People's Court accepted the application of Chengdu Office of Great Wall Company to execute notarized creditor's rights documents such as Yinwu Company and Dingli Land, and sealed up the house involved in the case on June 5, 2017. On November 29, 2017, the Chengdu Office of Great Wall Company and Hengzhen Company signed a "Debt Transfer Agreement", and the Chengdu Office of Great Wall Company transferred the debt of this case to Hengzhen Company. On April 3, 2018, Yibin Intermediate People's Court ruled that the company was the executor of the execution case No. 156 of (2017) Chuan 15. During the execution, Feng Tianguo raised an execution objection on the grounds that he purchased the house involved in the case on January 9, 2017, demanding to stop the execution of the house. After review by the Yibin Intermediate People's Court, it ruled to suspend the execution of the mortgaged house involved in the case, but Hengzhen Company refused to accept it and filed a first-instance lawsuit with the Yibin Intermediate People's Court in accordance with the law. After that, the Yibin Intermediate People's Court ruled to continue the execution of the house involved in the case. Feng Tianguo refused to accept the above-mentioned civil judgment of the first instance made by the Yibin Intermediate people's Court and appealed to the Sichuan High Court, requesting to revoke the judgment of the first instance in accordance with the law and not to enforce the mortgaged house involved in the case. Feng Tianguo refused to accept the above-mentioned civil judgment made by the Sichuan Higher People's Court and applied to the Supreme People's Court for a retrial according to law, the judgment revoked the Sichuan Higher People's Court (2019) Chuanminzong No. 859 Civil Judgment and Sichuan Yibin Intermediate People's Court (2018) Chuan15 Minchu No. 181 Civil Judgment and rejected Hengzhen Company's claims. How to determine the creditor's rights enjoyed by the 2. real estate bankruptcy administrator. There are a large number of real estate bankruptcy cases, how to determine the housing debt holders to enjoy the claims is the administrator must face and solve the problem. Whether this problem is solved or not will inevitably affect the formulation of the later reorganization plan, the arrangement of the debt settlement plan and the planning of the investor's investment plan. Therefore, in combination with the civil judgment of the Supreme People's Court (2021) Supreme Law Minzai No. 99 case, the lawyer believes that when the real estate bankruptcy administrator determines the creditor's rights of the creditor with the house against the creditor, he should first examine whether the creditor with the house against the creditor can be excluded from the court's enforcement, and then confirm the ownership of the house involved by the creditor with the house against the creditor and the nature and amount of the creditor's rights. (I) the right holder can exclude the constituent elements of court enforcement. With reference to the provisions of the Supreme People's Court (2021) Supreme Law Minzai No. 99 Civil Judgment and Article 28 of the Provisions on Objection and Reconsideration of Execution, if the obligee can exclude the court's enforcement, the following four requirements shall be met at the same time: 1. Before the people's court takes compulsory measures such as seizure, the owner of the mortgage right has signed a legal and valid written housing sales contract with the bankrupt enterprise (including the signing of a mortgage agreement or a commercial housing sales contract) and the purpose of signing the mortgage agreement is to obtain the ownership of real estate. However, if there is a reverse signing of a housing debt-to-debt agreement, the sale of a house is actually a concession and guarantee, the purpose of signing a housing debt-to-debt agreement is to evade debt or malicious collusion to harm the interests of a third party, etc., it does not belong to "signing a legal and effective written housing sales contract". 2. The real estate has been legally possessed before the people's court seizes and other compulsory measures. The legal possession of real estate by the owner of the mortgage shall generally be proved by evidence materials such as the delivered house key, the renovated occupancy or decoration deposit payment certificate, the handover transfer form or the handover acceptance certificate or other handover certification materials, the property service contract and property management fee payment certificate, the water and electricity contract and utilities payment certificate, the external lease contract of the house and the rent collection certificate. 3. The full price of the house has been paid. In view of the particularity of house-to-house debt repayment, the lawyer believes that a stricter review standard should be established for the house-to-house debt right holder in the payment of the house price, that is, the house-to-house debt right holder should have paid the full house price by the house-to-house debt repayment method. At the same time, before the house-to-house debt right holder and the enforced person sign the house-to-to-to-to-to-to-debt repayment agreement, the right should meet the following three conditions: (1) A claim for a mortgage must be a true, legal and valid claim, and a mortgage agreement should be a legally valid agreement. The creditor's right to repay the debt with the house cannot be a fictitious creditor's right, but a creditor's right based on the real creditor's right and debt relationship; the creditor's right to repay the debt with the house cannot be an illegal creditor's right arising from illegal acts such as pornography, drugs, gambling and disturbing social order; the agreement to repay the debt with the house should be a legally effective agreement, which does not conform to the relevant provisions of the civil code on the invalidity or validity of the contract. (2) A mortgage-to-debt claim shall be a maturing and determinate claim. Only due and determined claims can determine the specific claims involved in the mortgage debt and the specific amount of claims and debts, and can avoid the invalidation of the mortgage debt agreement due to the violation of the principle of property law and the rules prohibiting the transfer/pledge. (3) The amount of the debt against the house cannot be lower than the average market price of similar properties in the same lot at the time of the signing of the debt-to-house agreement. If the purpose of signing the house-to-debt agreement between the owner of the house-to-debt and the bankrupt enterprise is to evade the debt or maliciously collude to harm the interests of a third party, then the house price determined by the above-mentioned house-to-debt agreement must be far lower than the actual price of the house, so the lawyer thinks that the house price agreed in the house-to-debt agreement should be limited. 4. Not for their own reasons did not handle the transfer registration. With reference to the provisions of Article 127 of the Nine People's Minutes, as long as the owner of the mortgage debt has submitted the transfer registration materials to the housing registration institution, or made a request to the bankrupt enterprise for the transfer registration and other positive acts, it can be considered that the transfer registration has not been handled for its own reasons. The (II) manager's identification and treatment of the house and claims involved in the right holder of the house-to-house debt. The Supreme People's Court once believed in some cases such as (2016) Supreme Law Minshen No. 3620 (2017) Supreme Law Minzhong No. 354 and (2017) Supreme Law Minzhong No. 356 that the purpose of the debt repayment agreement is to eliminate the creditor's claim. It is not a simple house sale and cannot reflect the true intention of both parties to buy and sell the house. It is an alternative way for the debtor to perform the debt. Before the registration of ownership change is not completed, the right holder only enjoys the right of claim and does not have the right of expectation of property rights, so based on the equality of claims, the right holder of the right to set off the debt should not be given priority over other creditors. However, in practice, the purpose of signing the agreement of house-to-house debt relief is to obtain the ownership of real estate, and they have actually occupied the house involved in the case, and have paid all the house money by means of debt relief except cash payment and bank transfer, which has the nature of quasi-real right and should be protected by the same law as a general buyer, and taking into account the existence of a large number of housing-to-debt situations in judicial practice, in order to avoid causing unnecessary social and livelihood problems and a large number of litigation cases, lawyers believe that the administrator's determination and handling of the claims involved in housing-to-debt rights holders are as follows: 1. If the right holder of the house-to-house debt has the four constituent elements that exclude the court's enforcement, the administrator may determine that the house involved in the house-to-house debt holder does not belong to the assets of the bankrupt enterprise, and assist the house-to-house debt holder in the subsequent normal handling of the net signing procedures and real estate registration procedures for the house in question. However, the manager should be stricter and more cautious about whether the obligee of the house-to-house debt can exclude the constituent elements of the court's enforcement, inform the creditors of the legal responsibility of falsely reporting the creditor's rights, and try to avoid the situation that the bankrupt enterprise signs the house-to-house debt agreement to damage other creditors by evading or maliciously colluding to damage the interests of the third party. 2. If the obligee of the house-to-house debt does not have the four constituent elements at the same time to exclude the court from enforcing the law, the manager may determine that the house involved in the obligee of the house-to-house debt belongs to the assets of the bankrupt enterprise, notify the obligee of the house-to-house debt to supplement the declaration of creditor's rights and supplementary evidence, and confirm the nature and amount of the above-mentioned creditor's rights according to the actual situation of the creditor's rights.

2021-11-29