Viewpoint... Criminal case of the crime of obstructing testimony caused by a villa-finally exempt from criminal punishment by discretionary non-prosecution.

Words The crime of obstructing testimony is not a common crime in the criminal field. It is a high incidence of joint crimes involving gangs and other socially harmful crimes. In this case, the crime was implicated in ordinary civil cases, from the civil court to the procuratorial organ, and from the procuratorial organ to the public security organ, and finally the public security organ filed the case for investigation. The main parties in this case have gone through judicial procedures such as civil trial, protest by procuratorial organs, criminal detention, bail pending trial, and several arraignments by judicial organs. It took more than three years (there was also force majeure) and finally in 2023, this spring, which came earlier than before, obtained the procuratorial organ's discretionary decision not to prosecute and was exempted from criminal punishment. The three parties involved in this case looked callous and mixed when they received the legal documents not to prosecute, as if their happy and excited heart had only existed for a moment and had been taken away by three years of suffering. After all, they were three families, the elderly in need of care and the children who had just entered the school gate. In the face of the sudden punishment, the defender of this wooden mood sincerely understood. Over the past three years, you and I have had mixed feelings. Fortunately, we came to the newspaper in early spring. We are willing to laugh in the bushes when the mountain flowers are in full bloom. Application of law Article 207 of the the People's Republic of China Criminal Law, [Crime of Obstructing Testimony] Whoever uses violence, threats, bribery, etc. to prevent a witness from testifying or instigate others to give false testimony shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. [crime of helping to destroy or forge evidence] whoever helps the party concerned to destroy or forge evidence, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Judicial personnel who commit the crimes mentioned in the preceding two paragraphs shall be given a heavier punishment. This case applies the constitutive elements of the crime of "(the party in the civil trial) instructing others to give false testimony" and the second paragraph "helping the party to forge evidence" in the first paragraph. Detailed explanation of the case At the beginning of 2016, the man Chen Mou and the woman Zhou Mou (both surnames and names in the article are pseudonyms) of the parties to the case went to court for marital disputes. The court found out the facts and confirmed that the relationship between Chen and Tuesday did break down. The marriage relationship was dissolved according to law. In the judgment, corresponding judgments were made on the child support and property division of the two, and the two divorced. After the judgment came into effect, the woman Zhou thought that the division of property involved in the divorce case was unfair, so she approached the man Chen several times and asked Chen to make up for his emotional loss and re-divide the property. Zhou asked for a new price division of Chen's villa, and made it clear that he had part of the economic rights and interests in Chen's villa, but the villa where Chen lived was Chen's pre-marital property, and the property rights had nothing to do with Zhou. Zhou said that the villa was indeed purchased by Chen before marriage, but after marriage, the two shared the loan and had an interest in the appreciation of the property, chen Mou said that after their marriage, they had been taking the loan by themselves. Zhou Mou had no right to claim the rights and interests of the villa, so far there was a stalemate. At this time, Chen's economic situation was not good, and he felt uneasy in the face of Zhou's every attempt to block the door, so he came up with countermeasures. One was to transfer the villa involved in the case to his female friend Pan in the name of selling. Second, Chen Mou found his friend Zhu Mou and asked Zhu Mou to contribute to Pan Mou, forming a flow of house purchase money, completing the house purchase contract and transferring the ownership. The third is to transfer the house money received back to Zhu in the name of returning the earlier loan. Chen, Pan, and Zhu signed two agreements. One is the "House Sales Contract" between Chen and Pan. Second, Chen returned to Zhu in the name of repayment of the "loan agreement", however, the "loan agreement" is not a loan to buy a house, but the early two people have business dealings, Chen had borrowed money from Zhu for business. According to this, complete a "story"-selling the house to pay off the debt. In mid -2016, Chen's ex-wife Zhou learned that the villa had been sold to Pan, and the money from the sale was used to repay Chen's business arrears to Zhu in the earlier years, and a complaint was filed in court. The court was asked to invalidate the "Housing Sales Contract" and the "Loan Agreement", and to find out that his ex-husband Chen, Pan and Zhu maliciously colluded to damage their legitimate rights and interests, but in the absence of direct evidence, both trials were unsuccessful. From then on to 2018, Zhou found the court several times to say that the judgment was unfair and asked the court to deal with it, and repeatedly found the procuratorate to ask the procuratorate to protest. During this period, Zhou provided the judicial organ with relevant evidence of the relationship between his ex husband Chen and the buyer Pan, and reflected the deep relationship between Chen and Zhu to the procuratorate, which finally made the procuratorial organ have reasonable doubts. The procuratorial organ found Chen, Pan and Zhu several times in accordance with the law to understand the situation, made inquiry records, and found clues. In 2019, the procuratorial organ held that the "housing sales contract" and "loan contract" of Chen, Pan and Zhu were untrue and forged, and made the two-level courts make a judgment on the basis of which they should protest, and the situation involved in the case was suspected of a criminal offence, which was immediately transferred to the public security organ for investigation of the crime of obstructing testimony. After the public security organ filed the case, Chen was detained for the crime of obstructing testimony, Pan was released on bail pending trial, and Zhu was taken criminal compulsory measures for the crime of helping to forge evidence. Defense opinion The defender accepted the defense entrustment to the main party Chen, and found the key points of the defense on the basis of a detailed understanding of the case, consulting a large number of materials such as civil case files, etc. The defender believed that the parties involved in the case did hinder the testimony, but their behavior Whether it has reached the level of severe criminal law and whether the criminal responsibility of the three parties should be investigated for the crime of obstructing testimony is debatable and discussed. For this reason, the defender communicated with the case handling personnel of the public security organs and procuratorial organs many times and submitted a written "defense opinion", which was finally recognized by the procuratorial organ after many twists and turns, prompting the procuratorial organ to make a discretionary decision not to prosecute in accordance with the law. it has achieved a high-quality and effective defense for the parties in this case. The defender of a criminal case is slightly different from the agent of a civil case. Criminal cases require the defender to have a detailed understanding of the origin of the provisions of the criminal law, the scope of application, the cases in judicial practice and the process of handling criminal cases by judicial organs, and to have a thorough understanding of the original intention, mode and consequences of the parties involved in the case, and in the first stage, the investigation stage has a preliminary legal judgment on the whole case. "Look at the back and forth flow between facts and norms" and find the most favorable defense point for the parties in the details of the case. The following defender has compiled excerpts from the "Defense Opinions" and a summary of the case into a document to record the case. According to the application search of the crime of obstructing testimony in the province in recent years, this crime is not a high-incidence crime. Taking our city as an example, the number of cases concluded is about 23, of which 22 occurred in the trial process of criminal cases. In the fields of provocation, intentional injury, and underworld crimes, there are almost no crimes of obstructing testimony in the purely civil field, which should be accidental in this case. The crime of obstructing testimony is stipulated in Article 207 of the Criminal Law, which belongs to one of the crimes of obstructing justice in Section 2 of the crime of obstructing social management order in Chapter 6 of the Criminal Law. The legal interest violated by this crime is judicial order. This crime is a criminal and dangerous crime, and the constituent elements of the crime state that "preventing witnesses from testifying by means of violence, threats, bribery, etc." and "instigating others to give false testimony" constitute this crime. The perpetrator's behavior must reach the serious degree of direct infringement of the judicial order before he can file a case for prosecution. In this case, there was no situation of "preventing witnesses from testifying by means of violence, threats, bribery, etc. The crime of obstructing testimony is one of the constituent elements "instigating others to give false testimony": "instigating" in the context of the interpretation is, directing and ordering. In judicial practice, there are two interpretations and views on "instigating others to perjure. 1. "Inciting others to give false testimony" means instigating others to give false testimony to judicial organs by means of violence, coercion, bribery or other illegal means equivalent to the above. This view holds that the perpetrator must have committed an illegal means of instigating perjury, and that the seriousness of the illegal means is equal to the degree of illegality of "violence, coercion and bribery", one of the constituent elements of the crime. 2. "Inciting others to give false testimony" means that the perpetrator must instruct others to provide false testimony to the judicial authorities. The key is to get others to provide forged evidence to the judiciary on their own initiative through the direction and command of the perpetrator. The application of the constituent elements of "instigating others to perjure. The investigative agency believes that the "House Sales Contract" and the "Loan Agreement" issued by the perpetrator Chen to the court are false, that is, they have constituted the constituent elements of "instigating others to give perjury" in the crime of obstructing testimony. It is particularly emphasized here that "instigating others to give false testimony" means that the perpetrator must instruct others to provide false evidence to the judicial authorities. The perpetrator Chen made false evidence himself, and asked Zhu or others to help in the process. In the end, Chen himself provided the false evidence to the court. In such a situation, it is not for the "other person" to give perjury to the court, so it can not be determined that Chen has the act of "instigating others to give perjury" and can not constitute the crime of obstructing testimony. The false evidence produced by the perpetrator himself is submitted to the court and the act of ordering others to give false testimony to the court are two completely different acts. The former is an illegal act and the latter is a criminal act. The legal consequences of different behaviors are different. In this case, it cannot be determined that this behavior is a criminal act because Chen submitted two false evidences to the court. This is a mechanical understanding of the crime of obstructing testimony. 1, Chen's disposal of real estate behavior. First of all, it must be clear that Chen is disposing of his own legally owned property. The property rights of the real estate sold by Chen are clear. From the perspective of the core value of house ownership, its disposal of the real estate does not involve any legal issues. Second, Zhou, the plaintiff in the civil case, did not make a claim on the property rights of the house, but only believed that she had jointly repaid the loan during the marriage with Chen, and claimed rights and interests in the value-added part of the house, while the value-added part of the house could not be equated with the ownership value of the house itself. From the perspective of ownership of the core value of the house alone, Chen has the right to dispose of the property. Even if Chen's disposition of the real estate is flawed and infringes on Zhou's rights and interests, Zhou can fully exercise the right of civil relief and advocate Chen's compensation. At the end of the day is the divorce property division due to the appreciation of the house and give it the corresponding compensation, and Chen Mou disposition of the property has nothing to do. Third, whether Chen Mou sold the house to Pan Mou is a real transaction and whether there are power defects belongs to the field of civil and commercial affairs, because the housing transaction has not been completed through litigation, and even if there is a false transaction, it has not infringed the judicial order. Even if Chen submitted the false transaction contract to the court, the court found that the problem could not be identified after examination, and the illegal act could be punished by judicial punishment. After all, Chen's disposition is his own property, did not rise to the height of crime. More importantly, there was no lawsuit when Chen disposed of his property, that is to say, Chen did not have the subjective purpose of giving false testimony to the court or ordering others to give false testimony. To sum up, the core point of this case is that Chen Mou disposed of his own legal property. Even if the disposition of the property infringes on Zhou's interests, it is completely possible to protect his rights and interests through civil litigation. Even if the real estate transaction is determined to be false, it will not reach the level of criminal accountability. 2, Chen and Zhu signed the "loan agreement" behavior. The defender believes that Chen and Zhu signed the "Loan Agreement" and submitted this agreement to the court as evidence of his property impairment, which is the core issue of this case. To recognize the core issues of Chen's crime of obstructing testimony in this case, we must judge the purpose, behavior, and results of Chen's signing of the "Loan Agreement" with Zhu in accordance with the law. First of all, the purpose of Chen and Zhu signed the "loan agreement" is to prove that their property impairment, to prove that their property impairment can be reduced in the divorce proceedings with Zhou. Such original intention and purpose, under the premise of presuming that the loan agreement is not true, should be characterized as malicious collusion in civil law to infringe upon the property rights and interests of Zhou, a third party. In civil law, there are a number of remedies for malicious collusion against the property rights of third parties, which are not repeated here. Even if the court finally finds that it is malicious collusion to infringe upon the property rights and interests of a third party, it may not recognize this evidence, and the illegal acts can be punished by means of fines, judicial detention and so on. Secondly, Chen and Zhu signed the "loan agreement", which is the key to determine whether the case is classified as the crime of obstructing testimony. As mentioned earlier, the key to "instigating others to give false testimony" lies in directing and ordering others to provide false and untrue evidence to the judicial organs. In this case, the loan agreement was issued by Chen and submitted to the court by himself. In the case that Zhu's signature in the agreement could not be identified, Chen could not direct and instruct Zhu to provide false evidence to the court. Even if Chen submitted a false "loan agreement", this agreement was provided by Chen himself, and there was no objective behavior of "directing and ordering" others. Because the agreement is neither to instruct Zhu to make, nor to instruct Zhu to submit it to the court, nor to let Zhu confirm the validity of the agreement through litigation. You can't just ask Chen to ask Zhu to sign a name on the "Loan Agreement", it is considered to be a criminal act of "instigating others to give perjury" in the crime of obstructing testimony. Instead, we should synthesize the whole case and recognize who made this agreement and whether it has reached the standard of responsibility for ordering others to provide perjury to the court. Chen's own act of submitting the loan agreement to the court cannot be regarded as a criminal act of "ordering others to give perjury. Even if Chen provided false "housing sales contract" and "loan agreement" as civil evidence in the civil trial, then the act of providing false evidence did not meet the standard of criminal law accountability. According to the principle of modesty of criminal law, even if the civil evidence in this case is found to be false, the trial court should deal with it according to the civil procedure law. According to the principle of legally prescribed punishment for a specified crime in the criminal law, whether this case constitutes an element of "violence, coercion, bribery and other methods to prevent witnesses from testifying or instigate others to give false testimony", and whether the result of the crime has reached the level of serious violation of judicial order, it needs to be carefully judged by judicial organs. After all, it is very rare to involve criminal crimes in civil cases, especially in cases caused by marital property in this case. Conclusion Ultimately, the case was concluded with a discretionary non-prosecution. For the parties concerned, it may not be a sparse result. After all, the long road of litigation is always so difficult. Besides, the three families have to be relieved after the case is closed. It is rare for criminal cases to be terminated at the stage of examination and prosecution, but this case is not the inevitable result of the "competition" between the prosecution and the defense, because no law can be a golden rule, and the right and wrong, black and white of any case are so complicated and confusing. Of course, this is not the accidental result of the Universiade. The discretion not to prosecute itself has already explained the hardships. The late senior director Wang Guangren once said that "to be a lawyer, to be a person first", between people, between lawyers and clients, with a heart of compassion and empathy, as a lawyer, for the sake of the case, for the sake of people often "the night is always hard to see, lonely clothes count cold stars", in which our awe of the law will have a warm return.

2023-05-17

Viewpoint... The construction of museum digital intellectual property management rules under the background of cultural digitization strategy.

2023-05-16

Viewpoint.........................................................................................................

Foreword A one-person limited liability company is a limited liability company with only one natural person shareholder or one legal person shareholder. In the general corporate personality mixed litigation, according to the principle of who advocates who gives evidence, the creditor bears the burden of proof to prove that the company's property is not independent, which constitutes the mixing of personality. Since a one-person limited liability company has only one shareholder and cannot establish a shareholders' meeting, all important business decisions only need to be decided by one shareholder, there is no supervision and checks and balances between shareholders, and it is more likely to be manipulated by shareholders, which harms the interests of the company and creditors. It is difficult for creditors to understand the internal operation of a one-person company. Therefore, in order to balance the interests of creditors and shareholders, China's "Company Law" requires shareholders to prove their innocence, otherwise, they will be jointly and severally liable. The manner in which 1. creditors claim their rights In judicial practice, there are two main ways in which creditors require the shareholders of a one-person limited liability company to be jointly and severally liable to the company: 1. When the creditor sues the case, he directly lists the shareholders of a one-person limited liability company as the defendant and requires them to bear joint and several liability for the company's debts. Article 63 of the the People's Republic of China Company Law: If the shareholders of a one-person limited liability company cannot prove that the company's property is independent of the shareholders' own property, they shall be jointly and severally liable for the debts of the company. 2. In the execution stage of the case, the creditor applies for the addition of a shareholder of a one-person limited liability company as the person to be executed, and requires him to bear joint and several liability for the company's debts. Article 20 of the Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Enforcement (Fa Shi [2016] No. 21): As a one-person limited liability company subject to enforcement, the property is insufficient to pay off the debts determined by the effective legal documents, and the shareholder cannot prove that the company's property is independent of his own property, the people's court should support it. 2. the standard of proof of property independence for shareholders of a one-person company Article 62 of the the People's Republic of China Company Law stipulates that a one-person limited liability company shall prepare financial and accounting reports at the end of each fiscal year and shall be audited by an accounting firm. In accordance with the above-mentioned legal provisions, in order to prove the independence of the property, the shareholders of a one-person company may be required to submit to the court evidence such as the annual audit report and ancillary documents of the one-person company, all bank transactions between them and the company, transaction documents, and even special audit reports on the independence of the property. In terms of proof power, the annual audit report and the special audit report have the strongest proof power, but it is not easy to submit the report. The content and quality of the report still need to withstand torture: first, the audit report provided by it should cover the whole period of one shareholder's tenure; Second, the content of the audit report should reflect the property trend between shareholders and the company. Third, it can completely reflect the company's financial status such as assets and liabilities, there is no audit failure. In addition, the shareholders of one-person company also applied to the court for a special appraisal of the company's financial transactions, creditor's rights and debts, assets, etc. to prove the independence of property. Several situations in which 3. are at risk 1, shareholders can not provide audit reports, financial and accounting statements; 2. constant mixing of shareholder accounts, related company accounts and company accounts, mixing of official seals, multiple use of shareholder or related company accounts to collect payments and the aforementioned fund discrepancies cannot be reasonably explained in the audit report; 3, although the audit report is provided, but can not provide the original bookkeeping vouchers or bank details as supporting evidence; 4, did not prepare the daily audit report or financial accounting report, but in the case of temporary entrustment issued after the lawsuit; 5,...... 4. Supreme Court Cases and Judgment Views Judgment Rule 1: The special audit report commissioned by the people's court and the "Company Director Resolution Certificate" and "Independent Auditor Report" are mutually corroborated, which can prove that the personal property of the shareholders of a one-person company is independent of the company's property. Case 1: The Supreme People's Court held in the Civil Ruling Letter of Retrial Review and Trial Supervision of Objection between Fujian Gaode Engineering Construction Co., Ltd. and Hengfeng Property Management Co., Ltd. [(2020) Supreme Famin Shen No. 356] that "During the trial of this case, the court of first instance entrusted Changzhou Huabing Accounting Firm to conduct a special audit of Fengda Company according to the application of Hengfeng Company. After the audit, the accounting firm issued [2017] No. 51 special audit report to the court of first instance. After Gaode Company put forward relevant cross-examination opinions on [2017] No. 51 special audit report, the court of first instance requested Changzhou Huabang Accounting Firm to conduct a supplementary audit. After that, Changzhou Huachang Certified Public Accountants issued [2018] No. 073 special audit report to the People's Court. After Gaud Company put forward opinions on [2018] No. 073 special audit report that the financial account books on which the special audit report is based are incomplete and the financial account books have not been cross-examined, the court of first instance inquired with Changzhou Huabang Certified Public Accountants, and the auditors of Changzhou Huabang Certified Public Accountants responded to the cross-examination opinions put forward by Gaud Company. Gaud Company claims that the financial data on which the special audit report is based have not been cross-examined by the parties concerned, the relevant accounts are incomplete, and the audit signers have not participated in the audit work. However, the special audit report and the" Company Director Resolution Certificate "and" Independent Auditor Report "confirm each other, and the above objections raised by Gaud Company have not been proved by relevant evidence. Therefore, Gaud Company shall bear the legal consequences of failure to provide evidence. It is not improper for the original judgment to use the special audit report as the basis for determining the facts of the case." Rule 2: An audit report in which there is an audit failure does not prove the independence of a one-person company's property. Case 2: The Supreme People's Court held in the second-instance civil judgment [(2020) Supreme People's Court No. 1240] of Pang Hua and Shandong Dasheng Group Construction Engineering Co., Ltd. for the execution of objection, "In this case, although Pang Hua submitted the audit report of Huayang Company issued by the accounting firm and other evidence materials to prove the independence of the company's property, according to the facts found out in the second-instance of this court, the above audit report is not included in the balance sheet of Huayang Company for the execution of the debt that can be obtained through public inquiry, and there are obvious audit failures, which cannot be accepted according to law. After becoming a one-person limited company, Huayang Company, in violation of the provisions of Article 62 of the Company Law, failed to prepare financial and accounting reports at the end of each fiscal year and audited by an accounting firm. The occurrence of the above audit failure is sufficient to indicate that the company's financial management is chaotic and that Pang Hua, as the sole shareholder of the company, should bear the adverse consequences of the mixing of the company's property." Referee Rule 3: The annual audit report of a one-person limited liability company needs to be formed strictly at the end of each year, and the audit report formed during the litigation period rather than the normal year is not an objective and true reflection of the company's financial situation, and cannot prove that the company's property and shareholders' property are independent of each other. Case 3: Jiaozuo Wanhe Real Estate Co., Ltd. and Henan Baoyang Aluminum Co., Ltd. held in the civil ruling on retrial review and trial supervision of the execution objection ((2021) Supreme Famin Shen No. 1539) that "the court believes that: (2) the issue of whether the properties of Wanhe Real Estate Co., Ltd. and Zhongzhou Laurel Company are independent, and the annual report audit report submitted by Wanhe Real Estate Co., Ltd. in the original trial was formed during the litigation in this case, it is not a normal annual audit conducted by Wanhe Real Estate Company in accordance with Article 62 of the the People's Republic of China Company Law that" a one-person limited liability company shall prepare a financial and accounting report at the end of each fiscal year and shall be audited by an accounting firm. "it cannot objectively and truly reflect the financial situation of the company, and cannot prove that the properties of Wanhe Real Estate Company and Zhongzhou Laurel Company are independent of each other." Summary of 5. views Based on the above legal provisions and the case judgment point of view, we can know that the current judicial practice of our country to one-person limited liability company shareholders of the burden of proof of the distribution of heavy, and for one-person limited liability company shareholders to prove property independence, not only from the form to find out whether to prepare the financial audit report in line with the time requirements, but also from the substance to judge whether the content of the financial audit report is comprehensive, objective and true.

2023-05-15

Dynamics | Lawyer Yao Huming of Zhongcheng Qingtai Jinan Institute served as an independent director of Vosges Group Co., Ltd.

Recently, Vosges Group Co., Ltd. (002083) held a general meeting of shareholders and elected Yao Huming, senior partner and chairman of the board of supervisors of Zhongcheng Qingtai (Jinan) law firm, as an independent director of the company, and served as a member of the nomination committee of the board of directors and the remuneration and assessment committee of the board of directors. Vosges Group Co., Ltd. is a large-scale enterprise group with home textiles as its main business and diversified industries. It is China's largest and largest export value specializing in the production and sales of mid-to-high-end quilt products, bedding, and decorative cloth products. Modern home textile manufacturer. The company's shares were listed on the Shenzhen Stock Exchange in November 2006 (002083). The China Securities Regulatory Commission pointed out in the "Guiding Opinions on Establishing an Independent Director System in Listed Companies" (hereinafter referred to as the "Guiding Opinions" of the China Securities Regulatory Commission): "Independent directors of listed companies refer to those who do not hold positions other than directors in listed companies, and There is no director who may hinder his independent and objective judgment relationship with the listed company and its major shareholders. Independent directors have the characteristics of independence and professionalism, and are committed to safeguarding the overall interests of the company in accordance with relevant laws and regulations, the company's articles of association and other requirements. Yao Huming's election as an independent director of the Vosges Group is a recognition and affirmation of Yao's professionalism and legal services. Lawyer Yao will uphold the spirit of independent directors, fulfill the duty of diligence and due diligence, and play an active role in safeguarding the interests of the company's shareholders, promoting the company's reform and development, and improving the company's governance level.

2023-05-10

Dynamic | Secretary Zou Yonghou of Shandong University Law School and His Party Visited Zhongcheng Qingtai Jinan Institute for Exchange

On the morning of May 8, Zou Yonghou, Deputy Secretary of the Party Committee of Shandong University Law School, Professor Chi Deqiang, and Teacher Tian Hui visited Zhongcheng Qingtai (Jinan) Law Firm for a visit and exchange. Geng Guoyu, Party Secretary and Director of Zhongcheng Qingtai (Jinan) Law Firm, Cai Weizhong, Deputy Director, Du Wentang, Director of the Administrative Committee, He Zefeng and Shi Guangbo, Deputy Directors of the Administrative Committee, Yu Cuilan, Member of the Administrative Committee, and Chen Xiaotong, Member of the Human Resources Executive Committee, participated in the reception. Accompanied by Director Geng Guoyu, Secretary Zou Yonghou and his party visited the office environment and party building work of Jinan Institute. Director Geng Guoyu introduced the development concept of the law firm, the scale of the development of the law firm and the training of the law firm personnel led by the Party Building of Zhongcheng Qingtai. The symposium was presided over by Director Geng Guoyu. Director Geng welcomed Secretary Zou Yonghou and his party, and said that Shandong University is a 985 and 211 university with strong strength and a long history. Shandong University Law School has always been famous for its rigorous academic spirit and extraordinary academic achievements. In the domestic theoretical and academic circles, Shandong University Law School has always maintained a good cooperative relationship with Zhongcheng Qingtai. The two sides can reach further cooperation in various fields. Du Wentang, director of the management committee, introduced the development history of Zhongcheng Qingtai and the current system construction and business composition, and said that many outstanding lawyers graduated from Shandong University. Zhongcheng Qingtai welcomes the vast number of outstanding students from Shandong University to add new vitality and new strength to the future development of the law firm! Secretary Zou Yonghou spoke highly of Jinan's beautiful office environment and strong humanistic atmosphere, and expressed his appreciation for the achievements and honors made by Zhongcheng Qingtai in recent years. Secretary Zou introduced that the law major of Shandong University Law School is a prominent discipline of Shandong University. The college is committed to the cultivation of outstanding legal talents and has trained a large number of outstanding legal students inside and outside the province. Zhongcheng Qingtai lawyer has a wealth of practical experience, university and law firm cooperation, is a strong combination of legal theory and legal practice. During the symposium, the two sides conducted in-depth discussions and exchanges on issues such as talent training models and internships for outstanding fresh graduates. The atmosphere of this forum is strong and warm, which is an important opportunity for the two sides to further concrete cooperation and common development.

2023-05-08

Viewpoint | The first meeting of the 20th Central Finance and Economics Committee proposed the profound meaning of building a modern industrial system

On May 5, 023, the 20th Central Finance and Economics Committee held its first meeting. This meeting was of far-reaching significance and was also the first appearance of the current Central Finance and Economics Committee. The meeting emphasized speeding up the construction of a modern industrial system supported by the real economy, which is related to our winning strategic initiative in future development and international competition. Why should we emphasize the "modern industrial system" supported by the "real economy"? What is the significance? 1. focus on the real economy to prevent delinquency From the perspective of the external environment, there are two kinds of backflows in the global wave of "manufacturing return", one is the "return" of high-end manufacturing to developed countries, and the other is the "flow" of low-and middle-end manufacturing into low-and middle-income countries, forming a "two-way squeeze" on China ". This requires us to continue to pay attention to the real economy and improve the industrial chain. From the perspective of internal state, there is a situation of "delinquency" in the process of China's rapid economic growth, and there are also two states. One state is that financial institutions deviate from real enterprises, and a large number of enterprises, especially small and medium-sized enterprises, have difficulties in financing, and financial assets are more Use securities and other financial instruments to flow; the other state is that entity enterprises with sufficient funds also use a large amount of funds for financial products to profit, there is a tendency towards the financialization of real enterprises. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (2020 Amendment) specifically stipulates that "lenders who have not obtained the qualification to lend in accordance with the law provide loans to unspecified objects in society for the purpose of making profits", and curb the disorderly borrowing and lending between enterprises for profit. Without the support of the real economy, or if finance does not serve the real economy, the risk of economic bubble will increase significantly. Paying attention to the real economy has become the top priority, and it is necessary to reshape the modern industrial system, turn "made in China" into "created in China", and change from a "manufacturing power" to a "manufacturing power". 2. attention to stability and progress, adhere to the integration of development "To the virtual" easy to "out of the virtual" difficult, to the virtual process is easy to fall into the middle-income trap. Only innovation is always the direction of the development of the real economy, but the investment preference is risk-free and high-yield. Innovation means high risk, which may have huge returns, but it is more likely to lose money. For riskier projects, they are often avoided by social capital. Object. Vice versa, it is easier to "get rid of reality" than to "get real". We say that reshaping modern industries is a system problem, which requires progress in stability and the integrated development of primary, secondary and tertiary industries, not simply elimination but industrial upgrading. 3. Paying Attention to Scientific and Technological Innovation to Rebuild Modern Industrial System It is necessary to grasp the wave of new scientific and technological revolutions such as artificial intelligence, adapt to the requirements of harmonious coexistence between man and nature, maintain and enhance the advantages of a complete industrial system and strong supporting capabilities, efficiently gather global innovation elements, and promote industrial intelligence, greening, and integration. A modern industrial system with integrity, advancement, and safety. The establishment of this modern industrial system requires not only the "national system", but also the stimulation of market vitality and the development of "specialized and special new" enterprises. It is necessary to identify the pain points and layout in advance. The key industrial areas with clear strategy of manufacturing power are the basic chains to realize the role of "supplementing the chain", "extending the chain" and "strengthening the chain. In other words, the Outline of the Strategic Plan for Expanding Domestic Demand (2022-2035) refers to "strengthening the root base, raising advantages, making up for shortcomings, and strengthening and weakening", so as to effectively respond to external risks and challenges with its own stable development. All in all, in the process of reconstructing the modern industrial system, the economy and society will undergo further changes, but no matter how it changes, for us who are in it, we must not only go against the trend and accelerate breakthroughs in short-board areas; but also follow the trend. Do it and become bigger and stronger in advantageous areas. Only the industry that is consistent with the development trend of the industry is the most viable industry.

2023-05-06

Party Building | Zhongcheng Qingtai Jinan Institute Held a Mobilization Conference on Learning and Implementing Xi Jinping's Socialist Thought with Chinese Characteristics in the New Era

In order to conscientiously implement the unified deployment of the central, provincial and municipal party committees, and implement the work requirements of the party committee of the Municipal Bureau of Justice and the party committee of the municipal lawyer industry, on May 4, 2023, the party committee of the CCP Zhongcheng Qingtai (Jinan) Law Firm held a study and implementation of Xi Jinping The mobilization meeting on the theme of socialism with Chinese characteristics in the new era. All members of the law firm attended the meeting. The meeting was presided over by Comrade Li Ruzhi, deputy secretary of the party committee, and Comrade Meng Fanhu, deputy secretary of the party committee, read out the "Implementation Plan for the in-depth study and implementation of Xi Jinping's new era of socialism with Chinese characteristics in the whole institute." Meng Fanhu emphasized that this theme education is a major measure to implement the spirit of the 20th National Congress of the Communist Party of China, and a major deployment to further promote the new great project of party building in the new era. All party members and lawyers should take the in-depth development of thematic education as a major political task, and thoroughly study and understand the spirit of General Secretary Xi Jinping's important speech at the Central Theme Education Work Conference. It is necessary to "learn ideas, strengthen party spirit, emphasize practice, and build new achievements", adhere to the unity of learning, thinking, and use, knowledge, trust and practice, and transform Xi Jinping's thoughts on socialism with Chinese characteristics in the new era into firm ideals, temper party spirit, guide practice, and promote work. Powerful force. Comrade Li Ruzhi, Deputy Secretary of the Party Committee Comrade Meng Fanhu, Deputy Secretary of the Party Committee afterwards, comrade geng guoyu, secretary of the party committee, spoke at the meeting. Geng Guoyu said that in accordance with the unified deployment of the Party Central Committee and the requirements of superiors, this theme education must insist on the participation of all employees and education for everyone, and put forward requirements for this theme education from five aspects: one is to improve the political position and have a deep understanding The significance of thematic education; the second is to strengthen learning and understanding, and deeply grasp the goals and requirements of thematic education; the third is to thoroughly check and comprehensively identify the problem gaps and direction of efforts; fourth, through the key measures, high-quality promotion of the implementation of the theme education task; fifth, pay close attention to the real inspection and rectification, and effectively solve the problem of restricting the high-quality development of the work of law firms. Comrade Geng Guoyu, Secretary of the Party Committee At the meeting, all party members and lawyers carefully studied the spirit of the meeting and made study notes. After the meeting, each branch will carry out in-depth educational activities to study and implement Xi Jinping's thoughts on socialism with Chinese characteristics in the new era in accordance with the requirements of the meeting. The Party Committee of the Communist Party of China Zhongcheng Qingtai (Jinan) Law Firm will carry out this theme education, strengthen theoretical arms, improve the ability to perform duties, implement precise policies, and continue to polish the brand of the provincial "two new organizations" party building work demonstration sites. High-quality party building leads the high-quality development of law firms and provides a strong legal guarantee for the construction of a modern socialist provincial capital in the new era.

2023-05-05

Honor | Zhongcheng Qingtai Law Firm won many awards in the selection of outstanding achievements in the province's lawyer business.

Recently, the Shandong Lawyers Association issued the "Notice on the Selection of Outstanding Achievements of Lawyers in the Province", and the lawyers of Zhongcheng Qingtai Law Firm achieved good results. Zhongcheng Qingtai (Jinan) Law Firm and Zhongcheng Qingtai (Qingdao) Law Firm both won the "Excellent Organization Award", and the outstanding achievements such as papers, cases, works, and legal documents written by Zhongcheng Qingtai lawyers won multiple awards. ★ Outstanding Organization Award ★ Zhongcheng Qingtai (Jinan) Law Firm Zhongcheng Qingtai (Qingdao) Law Firm ★ Excellent Paper ★ First Prize Qin Xingda and Zhai Chunting (Jinan Institute) "Analysis of the Causes of Alienation of Criminal Evidence Assessment in China and Its Solutions" won the first prize in the criminal category. Tang Xiangdong and Chen Xiuyu (Jinan Institute) won the first prize in the civil category for "Analysis of the Rules during the Mortgage Period-and Comment on Article 44 of the Interpretation of the Civil Code Guarantee System". Li Heng and Li Jianqiao (Jinan Institute) won the first prize in the category of real estate construction engineering for "back-to-back" disputes over contract terms between construction enterprises and sub-suppliers. Zhao Kaiyong and Wu Xiaozhu (Jinan Institute) "Research on Responsibility for Ecological Restoration in the Yellow River Basin" won the first prize in the category of serving economic and social development. Zhou Jiakui and Sun Bo (Jinan Institute) "The Protection of Bilateral Investment Agreements on Overseas Investment of Chinese Enterprises under the Belt and Road Initiative" Won the First Prize for Serving Economic and Social Development Liu Yuhan (Jinan Institute) "Research on the Priority System of Buyers in the Bankruptcy of Real Estate Enterprises" won the first prize of bankruptcy reorganization and investment and financing. Li Wei (Weifang Institute) "Discussion on the Application of Non-fixed-term Labor Contracts for Labor Dispatch" won the first prize in the labor category. Second prize Chu Lingyun and Tang Yu (Jinan Institute) "The Connection between Confession of Guilty and Punishment and the Application of Criminal Reconciliation" Second Prize in Criminal Category Yao Huming and Cao Shu (Jinan Institute) won the second prize in the civil category for "Human Flesh Search" on Internet Tort. Guan Xin and Chen Xiaotong (Jinan Institute) "On Force Majeure System-Analysis from the Perspective of Legal and Economic Analysis in Combination with Specific Cases" won the second prize in the civil category. Liu Yuhan (Jinan Institute) "The Judicial Nature of Virtual Currency and the Effectiveness of Related Transaction Contracts" won the second prize in the civil category. Qi Jianpeng (Jinan Institute) "Inquiry into the Principle of Informed Consent in Face Recognition" won the second prize in the civil category. Yin Yanbo and Li Yao (Jinan Institute) "The Particularity and Calculation Rules of Administrative Litigation Prosecution Time Limit" won the second prize in the administrative category. Fang Quan and Wang Jiaojiao (Jinan Institute) "Divorce Damage Compensation System under the Background of Codification -- From the Perspective of Article 1091 of the Civil Code" won the second prize in the marriage and family category. Sun Hanchuan and Zhang Zipan (Jinan Institute) "Discussion on the Scope of Application of the Equity Repurchase System of Limited Companies under the Guidance of Capital Ethics" won the second prize in the company category. Shao Yan and Cheng Liangliang (Dezhou Institute) "Empirical Analysis of the Application of Self-Gan Adventure Rules" won the second prize in the civil category. Yao Li and Guo Cuicui (Dezhou Institute) won the second prize in the labor category for "Research on Industrial Injury Insurance for Flexible Employers under the Background of the Internet". Li Qian and Xu Jing (Dezhou Institute) "The Development and Reflection of Criminal Public Interest Litigation Attached to the Protection of Ecological Diversity in the Yellow River Basin -- An Investigation and Analysis from the Perspective of Cases Endangering Precious and Endangered Wild Animals" won the second prize for serving economic and social development. Third Prize Wang Cuimin and Zhao Kaiyong (Jinan Institute) "Research on the Legal System of Flood Control and Flood Control in the Shandong Section of the Yellow River" won the third prize in the category of serving economic and social development. Li Haocheng (Jinan Institute) won the third prize in the civil category for "Conflict and Coordination between Personal Privacy and Public Right to Know in the State of" Dynamic Clearing "of the New Crown Epidemic Gong Lixin, Ning Hancheng and Li Jiahe (Qingdao Institute) "Research on the Strategic Space and Expansion Path of the Integration of" Marine "Legal Services in Shandong Province-Starting from the Establishment of Shandong Blue Valley Law Firm" won the third prize in the category of comprehensively promoting the rule of law. Duan Chao and Zheng Lu (Qingdao Institute) "Identification and Improvement of the Principle of Change of Circumstances-From the Perspective of China's Legal Provisions and Practical Cases" won the third prize in the civil category. Duan Chao and Zhang Zhenchao (Qingdao Institute) "Analysis on the Pension Insurance Treatment of Prisoners" won the third prize in the category of serving economic and social development. Jiang Yunqiang (Qingdao Institute) won the third prize in the criminal category for "Research on the Criminal Law Regulation of Online Scrubbing and Speculation in China". Yin Mengxue (West Coast Institute) won the third prize in the civil category for "Problem Analysis and Risk Prevention of Mortgage Loans under Construction in the Current Form". Chen Weitao and Yang Yahan (Weifang Institute) won the third prize in marriage and family category for "Research on Legal Issues of Visiting Right" ★ Excellent Case ★ First Prize Li Heng, Yin Yuan and Han Ning (Jinan Institute) "BT Contract Dispute between Company A and Company B" won the first prize for excellent construction real estate cases. Tian Yuanying (Jinan Institute) "A Villagers' Group Collective Land Occupation Compensation Dispute Re-trial Case" Won the First Prize of Excellent Cases in Administrative Law Category Second prize Cheng Shou-fu and Chen Huaiyuan (Jinan Institute) won the second prize for excellent cases of construction real estate in the implementation of the proposal for the pre-litigation preservation stage of construction contract cases. Zhao Kaiyong (Jinan Institute) "Construction Contract Dispute Case" Won the Second Prize of Excellent Cases in Construction Real Estate Category Niu Chao (Jinan Institute) "Dispute over Construction Contract between Employer and Actual Constructor" Won the Second Prize of Excellent Cases in Construction Real Estate Category Duan Chao, Wang Chao (Qingdao Institute): "Qingdao Millennium Hongda Sports and Entertainment Co., Ltd., Sichuan Hongda (Group) Co., Ltd. and Qingdao Chengyang District People's Government, Qingdao Chengyang District Natural Resources Bureau, Qingdao Chengyang District Hongdao Sub-district Office, Qingdao High-tech Industrial Development Zone Management Committee contract dispute case won the second prize of excellent construction real estate cases Guo Litian and Li Wenlong (Qingdao Institute): The Case of Zhang's Dissolution of Labor Contract Dispute Due to Major Damage to the Company Won the Second Prize of Excellent Cases in Labor Law Category Gao Rongrong (Qingdao Institute) "Li Mou, Yang Mouxia damage the interests of the company's creditors liability dispute case" won the second prize of the company's outstanding cases. Yang Shaobin (Liaocheng Institute) "Zhang's Intentional Injury Case" Won the Second Prize of Excellent Criminal Cases Third Prize Che Xiaoyang (Jinan Institute) "Zou Moumou Suspected of usury Loan Crime Can't afford to sue" won the third prize of excellent criminal cases Yao Li and Shen Fucheng (Dezhou Institute) "Guo's Subrogation and Confirmation of Creditor's Rights" won the third prize for outstanding cases in the company category. Ai Xiansong and Cheng Liangliang (Dezhou Institute) "Evaluation of Administrative Punishment Cases by Dezhou Emergency Management Bureau" won the third prize for outstanding non-litigation cases. Duan Chao, Yu Wei, Zheng Jinliang and Ning Hancheng (Qingdao Institute) "Dispute over the Implementation of Relocation House on 15th Street, Shibei District, Qingdao" won the third prize for excellent cases in construction and real estate. Li Jingxin and Yin Zhixiang (Qingdao Institute) "A Real Estate Cooperative Development and Liquidation Case" Won the Third Prize of Outstanding Non-litigation Cases Guo Changman (Taian Institute) "Dispute over Investment Agreement between a Company and Township Government" won the third prize of excellent cases in the company category Excellence Award Shao Yan and Zhang Shujie (Dezhou Institute) "The Case of Qin Moumou and XXX Real Estate Co., Ltd. Holding Forged Invoices" Won the Excellent Award for Outstanding Criminal Cases Cheng Liangliang (Dezhou Institute) "Dispute over Equity Transfer between Sun and a Company" won the Excellent Award for Outstanding Cases in the Company Category ★ excellent monograph ★ First Prize Li Heng and Ma Fengling (Jinan Institute) "Legal System and Practical Skills of Construction Engineering Law (Third Edition)" won the first prize Second prize Li Jingxin (Qingdao Institute) editor-in-chief, Qingdao Lawyers Association editor: "Law said the charter: the tailor-made articles of association and corporate governance" won the second prize. ★ Excellent legal instruments ★ First Prize Meng Fanhu and Cui Shouxu (Jinan Institute) won the first prize for the first instance defense of Yan's fraud and loan fraud case. Second prize Meng Fanhu and Cai Benjie (Jinan Institute) "Zhang Moumou's Defense on Suspected Bribery" won the second prize in the category of excellent legal documents for lawyers. Meng Fanhu and Li Jun (Jinan Institute) "Zhang Moumou Suspected of Extortion and Extortion and Other Evil Forces Group Crimes" Won the Second Prize of Lawyers' Excellent Legal Documents Gong Lixin, Wang Lanxu, Jin Guanglong, Ning Hancheng (Qingdao Institute): "Legal Opinion" won the second prize in the non-litigation category. Third Prize Li Hui (Jinan Institute) "Legal Opinion on Equity Investment Project of Shandong Changxin Chemical Technology Co., Ltd." won the third prize in the category of excellent legal documents for lawyers. Zhongcheng Qingtai Law Firm has always encouraged and supported lawyers to actively participate in various theoretical seminars, in-depth theoretical research, and strengthen professional business capabilities. It has won the Outstanding Organization Award and Outstanding Paper Award in the selection of outstanding papers for lawyers in Shandong Province for many years., Fully demonstrated the excellent professional level and superb professional ability of Zhongcheng Qingtai lawyers. In the future, Zhongcheng Qingtai will continue to maintain a good research style, continue to cultivate various legal professional fields, and cultivate a group of lawyers with excellent professional quality, diligent thinking, and good research.

2023-05-05

Dynamic | Zhongcheng Qingtai Jinan Institute Held "Youth to the Party May 4th Youth Tour"-South Yellow Cliff Red Education Activity

May 4th Youth Festival Songs for Youth On the occasion of the 104 anniversary of the May 4th Movement, in order to further carry forward the May 4th spirit of "patriotism, progress, democracy and science" and show the spirit of young lawyers who are fearless to move forward and work hard first, the Youth Working Committee and Youth League branch of the trade union of Zhongcheng Qingtai (Jinan) law firm held the activity of "youth to the party · May 4th youth line", Organize young lawyers to visit the red education base in Nanhuangya. South Huangya Village, known as "Red Ten Miles Small Yan'an, Bronze Wall and Iron Wall South Huangya", is located in Xiaoli Town, Changqing District, Jinan City. From the war of resistance to liberation, here is the Dafengshan revolutionary base command center and one of the armed forces stationed center. Because the masses supported the leadership of the party and advanced ideological awareness, every family in Nanhuangya Village made important contributions to the founding of New China. At the beginning of the activity, Zhongcheng Qingtai youth party members collectively reviewed the oath of joining the party and solemnly swore under the party flag. Subsequently, under the guidance of the tour guide, the young lawyer visited the South Yellow Cliff Village Red Revolution History Exhibition Hall. The firmness of the fortress comes from "belief is like a mountain"; the firmness of belief is "not afraid of sacrifice", and this spirit has been rooted in the hearts of the people of Nanhuangya from the very beginning, and the turbulent Nanhuangya is marked with blood and fire., Witness suffering and glory. The revolutionary situation was surging, and the South Yellow Cliff was carrying out an arduous, heroic and tenacious struggle. It is not easy to observe the heroic deeds of the revolutionary ancestors and cherish the good life at present. We should encourage self-improvement. After the visit, the young lawyers held a tug-of-war competition. On the field, everyone had high morale and fought bravely to be the first. They showed a good competitive demeanor and showed the indomitable fighting spirit of Zhongcheng Qingtai people to be enterprising, tenacious and enterprising. History is silent, years have words, Zhongcheng Qingtai young lawyers in the red south yellow cliff to review the red classics, feel the vicissitudes of life, build a spiritual home. This activity has strengthened the ideological cultivation of young lawyers and enhanced the understanding and exchange among young lawyers. I hope that the young people of our generation will sing the main theme of the times of "never forget the original ideal and ambition and bear in mind the mission!

2023-05-04

Viewpoint | Common situations of changing and adding the executed person during execution

1. changes and additions to the person subject to execution must follow statutory principles. In judicial practice, obtaining an effective judgment does not necessarily mean that the creditor's rights can be paid off. The situation that the person subject to execution does not have the ability to perform or even maliciously evades execution often leads to "execution failure. When there is a situation that hinders the execution, changing and adding the person to be executed can effectively alleviate the difficulty of execution and accelerate the realization of the legitimate rights and interests of the parties. However, changing or adding the person subject to execution means increasing the entity liability of the third party. If the person subject to execution is changed or added at will, the third party not related to the case may bear the debts unrelated to the third party and infringe the legitimate rights and interests of the third party. Therefore, in judicial practice, the judgments and rulings of courts at all levels make it clear that the change and addition of the person subject to execution must follow the principle of legalism. The "Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement" clearly stipulates the statutory circumstances under which the person subject to enforcement can be added in the enforcement procedure. Related cases] The 28th batch of guiding cases of the Supreme People's Procuratorate: Wei Dongping, Zhang Yi and He Xiaomin's loan contract dispute (2018) Hei 07 Jian No. 3 Guidance: The division of labor between trial and enforcement procedures is different, the rights and obligations of the parties should be determined by the trial procedure, and the enforcement procedure should not normally directly determine the rights and obligations of the parties, but can only be enforced on the basis of enforcement. The change or addition of the person subject to execution shall follow the legal principle, and shall not be changed or added except for the circumstances stipulated by the law or judicial interpretation, otherwise it will essentially deprive the parties of their litigation rights, which is a procedural violation. Although the specific provisions of "without trial procedure, the husband and wife who have not raised debts shall not be required to bear civil liability" were clearly stated by the Supreme People's Court in February 2017 in the notice on issues related to the proper trial of cases involving marital debts in accordance with the law, the basic principles and procedures for the people's court to add the person subject to execution in the execution procedure have always been determined, this provision is only a reaffirmation of the existing rules for determining the joint debt of the husband and wife. Liu Jingyan, Kaiyuanxin Space Real Estate Development Co., Ltd. and other loan contract dispute implementation supervision (2021) Supreme Law Enforcement Supervision No. 387 The main purpose of the judgment: the addition of the person subject to execution in the enforcement procedure means that the third party other than the obligor determined by the effective legal document shall bear the substantive responsibility directly through the enforcement procedure, which will have a great impact on the substantive and procedural rights of the third party. Therefore, the additional person subject to execution should strictly follow the legal principle, that is, it must comply with the provisions of the additional provisions on changes. Article 17 of the Additional Provisions on Changes. In this case, according to the facts that have been ascertained, the civil judgment of kaiyuan city court (2017) Liao 1282 Min Chu No. 661 confirmed that Jin Penglong Real Estate Company's zero equity price was transferred to 100 of Xin Space Company, which was an equity transfer. Xin Space Company's creditor's rights and debts were borne by itself, and Jin Penglong Real Estate Company did not bear the creditor's rights and debts of Xin Space Company. Liu Jingyan claimed that the merger between Jin Penglong Real Estate Company and Xin Space Company was an enterprise merger. Jin Penglong Real Estate Company did not make full capital contribution, which was inconsistent with the facts determined by the effective judgment and Articles 17 and 22 of the "Additional Provisions on Changes. Based on this, Liu Jingyan claimed to add Jin Penglong Real Estate Company as the person subject to execution, which did not comply with the legal provisions, so the court did not support his claim. The theoretical basis for 2. changes and additions to the executed person. Justice is the last line of defense to safeguard social fairness and justice, and enforcement is the last link on this last line of defense. In order to effectively solve the implementation problems, we must not only solve the "difficult implementation" problem, but also rectify the "implementation chaos" phenomenon. Why is the (I) allowed to change or add the executed person during execution? The function of the right of execution is to realize the relationship of rights and obligations established by the effective legal instrument through the enforcement procedure. Trial provides the basis for enforcement, but in judicial practice, the probability of effective judgments and rulings being actively performed is very low, and it is often necessary to rely on enforcement procedures as the ultimate guarantee for the realization of the rights of the parties. The debtor, in order to avoid the debt or delay the performance of the debt as much as possible, often reduces its own liability property in various ways, and if it is required to go through an entity trial in order to change or add an executor, it will increase the cost of realizing the creditor's claim and exacerbate the difficulty of enforcement. And because of the long trial cycle, the entity trial process may have a new need to hear the matter, so that the court trial work pressure increased at the same time, the relationship between creditor's rights and debts in a long-term uncertain situation, the creditor's rights are difficult to achieve. Therefore, in the implementation of the change, additional enforcement can effectively save judicial resources, improve the efficiency of enforcement, more conducive to the debtor to avoid debt or hinder the implementation of the cause, fully safeguard the legitimate rights and interests of creditors. (II) principle of separation of trial and execution Fundamentally, the change and addition of the person subject to execution must follow the principle of legalism, which is actually the embodiment of the principle of "separation of trial and execution. The right of enforcement is the power of the enforcement department of the court, at the application of the right holder, to use the coercive force of the state and in accordance with legal procedures to force the obligor to perform the obligations determined by the effective legal instrument. Different from the judicial power, the executive power has the administrative power color of one-way, compulsory and initiative. Like other public powers, it may be abused and infringe on the rights of the parties. The addition of the executed person at the execution stage involves substantive judgment, which depends on the trial procedure, and the determination of the executed person in the execution procedure actually implements part of the judicial power and expands the authority. In addition, the change and addition of the person subject to execution in the execution procedure means that the third party other than the obligor determined by the effective legal document is directly determined to bear the substantive responsibility through the execution procedure, which will lead to the substantial deprivation of the party's right of action, which will have a great impact on the substantive and procedural rights of the third party. Therefore, the additional person subject to execution must strictly follow the legal principles, and there is no clear provision in law, only the debtor who has been given an effective judgment by the court can become the person to be executed in an enforcement case. The Opinions of the Supreme People's Court on Further Improving the Mechanism for Restricting Enforcement Power and Strengthening Enforcement Supervision (Law [2021] No. 322) emphasizes that major substantive disputes in enforcement shall be resolved through corresponding litigation procedures in strict accordance with the provisions of the Civil Procedure Law and judicial interpretations, so as to avoid violations of regulations and the use of enforcement on behalf of trial. At the same time, the "opinions" also further clarify how to further deepen the separation of trial and execution, and how to make up for the losses of the parties after the implementation error. "Justice and efficiency are the eternal pursuit of judicial power", and the introduction of "Change and Additional Provisions" is the product of the balance between justice and efficiency. On the one hand, the "change and additional provisions" stipulates 20 kinds of situations in which the person subject to execution can be directly changed or added in the course of execution, which provides a basis for the efficient execution of relevant cases; on the other hand, the change and addition of the person subject to execution must strictly follow the principle of legalism in accordance with the "change and additional provisions", so as to avoid the infringement of judicial justice in the execution procedure. Judicial Determination of Common Circumstances of 3. Change and Addition of Persons Subject to Enforcement The "Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement" (2020 amendments, hereinafter referred to as "Changes and Additions") have passed 16 articles to clarify that the law can be changed or added in civil enforcement. Twenty situations in which the person to be executed. For the specific identification of common situations in judicial practice, the key points are as follows: (I) the person subject to execution is a natural person In the "Modification and Addition Provisions", for the case where the person subject to execution is a natural person, only Article 10 stipulates that when the person subject to execution is declared missing, dead or declared dead, the person subject to execution may be changed or added. In judicial practice, it is common for applicants to apply for the addition of the spouse of the person subject to execution as the person subject to execution, or to request the addition of their relatives as the person subject to execution on the grounds that the property under the name of the person subject to execution is transferred to the name of their parents or children. However, neither of the above two situations is a statutory situation in which the person to be executed is added to the execution. Even if the heirs of the estate are added in accordance with the provisions of Article 10 of the "Changes and Additions", they can only be added to the heirs who have inherited the estate within the scope of their inheritance. Related cases] Tang Jie, Yin Minghui Private Loan Dispute (2019) Gan Zhi Fu No. 130 The main purpose of the judgment: At present, there is no evidence to prove that the person subject to execution transferred or transferred the property to his daughter free of charge after the civil judgment executed in this case became legally effective, which made the people's court unable to enforce it. Even if there is evidence to prove the existence of this fact, the person subject to execution should bear the legal consequences of judicial sanctions or criminal responsibility in accordance with the law. The applicant for reconsideration applies for adding a third person as the person subject to execution in this case on this ground, which is inconsistent with the law. The form of "mixing" of property between the respondent and his daughter as claimed by the applicant for reconsideration is not the property mixing between corporate legal persons, partnerships or partnerships and other organizations and shareholders, partners and other natural persons who should bear debts as stipulated by law. In fact, it claims that the property is transferred maliciously between parents and children in the form of common property, and the circumstances under which the person to be executed should be added are not applicable to the above-mentioned laws. And even if the malicious transfer of property between parents and children in the form of joint property, it does not belong to the "change, additional provisions" should be added as the circumstances of the person subject to execution. The person applying for enforcement may claim rights in separate litigation in accordance with the law. Li Guofu and Ai Yuping's Contract Dispute (2020) Ganzhi Fu No. 118 The main purpose of the judgment: the additional person subject to execution must have the corresponding legal conditions and must be clearly stipulated in the law and judicial interpretation. There is no legal basis for adding a spouse as the person subject to execution in the execution procedure. And according to Article 2 of the "Notice of the Supreme People's Court on Issues Concerning the Proper Trial of Cases Involving Marital Debts in accordance with the Law", without trial procedures, one of the spouses who has not raised debts shall not be required to bear civil liability. Therefore, if the applicant for execution applies for the execution of the property of the opponent, it must go through the trial procedure, and the court has no right to directly add the spouse as the person subject to execution and execute his legal property. Liu Chuanjun, Chen Ruisheng and Other Disputes over the Implementation of Lease Contract Disputes (2022) Lu 0103 Zhiyi No. 210 The main purpose of the judgment: according to Article 10 of the provisions of the Supreme People's Court on several issues concerning the change and addition of parties in civil execution, "if the natural person who is the person subject to execution dies or is declared dead, the administrator, heir, legatee or other subjects who have obtained the estate due to the death or declaration of death of the natural person are the person subject to execution and bear the responsibility within the scope of the estate, the people's court should support it." The key point is that the additional person must be the subject of the estate of the person being executed and be liable only within the scope of the estate. In this case, Chen Ruisheng, who is the person subject to execution, has died, and the person applying for execution can change the heir of the person subject to execution to the person subject to execution in this case in accordance with these provisions. The third person Chen Zhongwei, Chen Zhonghua, Chen Zhongman, Chen Shuang and Chen Zhongye all issued a statement to give up inheriting Chen Ruisheng's estate, so they do not meet the additional legal conditions for change. (II) the executor is a sole proprietorship or individual industrial and commercial household. A sole proprietorship enterprise is a business entity established in China in accordance with the Law on Sole Proprietorship Enterprises, invested by a natural person, the property is owned by the investor, and the investor bears unlimited liability for the debts of the enterprise with his personal property. Because a sole proprietorship enterprise is an unincorporated organization, has no legal personality and does not have the ability to bear civil liability independently, the investors of a sole proprietorship enterprise bear unlimited liability for the debts of the enterprise. Based on this, when a sole proprietorship enterprise is unable to pay off the debts determined by the effective legal instrument, the people's court may, upon application, add its contributor as the person to be executed. In judicial practice, there is no dispute over the direct execution of the property of the operator when the person subject to execution is an individual industrial and commercial household, but most courts tend not to approve the reverse application of this provision when the operator of an individual industrial and commercial household is the person subject to execution. However, the Guangdong Higher People's Court mentioned in the "Letter of the Guangdong Higher People's Court on the Reply to the Proposal of the Representative No. 1624 of the Fourth Session of the 13th People's Congress of Guangdong Province" (Yue Gao Fa Han [2021] No. 32) that "considering the individual business in practice For individual industrial and commercial households, there is often no difference between their name property and the property of the operator. Therefore, when the operator of an individual industrial and commercial household (individual business) acts as the person subject to execution, he can directly execute the property of the name", and said that he will further understand the specific application of this article by the courts at all levels, unify the judgment standard, and clarify that "if the operator of an individual industrial and commercial household is the person subject to execution, the people's court will find out that the operator is consistent with the person subject to execution on the business license, and its organization form is personal operation, the property of the name can be directly executed to pay off the debts of the operator." Related cases] Shen Jian, Shao Liguo and Other Disputes over the Implementation of Sales Contract Disputes (2022) Shan 0111 Zhiyi No. 141 The purpose of the judgment: According to the relevant laws and regulations of our country, if the name of an individual industrial and commercial household is the person subject to execution, the people's court can directly execute the property of the person subject to execution. In this case, the person subject to execution is a natural person, and the objector requests to add the individual industrial and commercial household under his name. There is no legal basis. (III) executed is a partnership Based on the difference between a partner and a limited partner, the conditions for additional partners and limited partners are not the same when the partnership is unable to pay off the debts determined by the legal instrument in force. The former may be added when the partnership is unable to pay off the debts established by the legal instrument in force, but the latter is liable only to the extent that it has not paid its contribution in full and on time. (IV) the person to be executed is a legal person branch In applying Article 15 of the Alteration and Addition Provisions to add a legal person or other legal person branch of that legal person, it is often necessary to determine that the legal person branch is indeed unable to pay off the debts determined by the legal instrument in force. If the applicant fails to provide relevant proof and the court does not hear it, the ruling may be revoked. Related cases] Chongqing Construction Seventh Construction Engineering Co., Ltd., Dulan County Water Conservancy Bureau and other civil enforcement reconsideration (2021) Supreme Law Enforcement No. 17 The main purpose of the judgment: As a legal person branch of the person subject to execution, it cannot pay off the debts determined by the effective legal document. If the person applying for execution applies to change or add the legal person as the person subject to execution, the people's court shall support it. If the liability property directly managed by a legal person is still unable to pay off the debts, the people's court may directly enforce the property of other branches of the legal person. According to the aforementioned provisions, there are two prerequisites for adding a legal person to the person subject to execution. One is that the branch of the legal person cannot pay off the debts determined by the effective legal document. The other is that the people's court should only respond to changes if the two conditions are met at the same time., Additional applications are supported. As far as this case is concerned, the Dulan County Water Conservancy Bureau listed Chongqing Qijian Qinghai Company as the person to be executed on the grounds that Chongqing Qijian Qinghai Company is a branch that does not have independent civil liability. At this time, the Qinghai High Court should first examine whether Chongqing Qijian Qinghai Company is indeed unable to pay off the debts determined by the effective legal documents, while neither the Qinghai High Court's reversal execution ruling nor the objection ruling have been ascertained. The Qinghai High Court directly listed Chongqing Seven Construction Company as the person to be executed in the execution of the revolving ruling. The basic facts were not clear and the procedures were improper. (V) additional shareholders subject to execution When the for-profit law

2023-04-29