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2022-04
Brief description of case Zhang Qingshan and Li Jing got married in 2010 and gave birth to a man and a woman together after marriage. At about 19:00 on April 27, 2021, Zhang Qingshan drank and drove a two-wheeled motorcycle without a license plate. The victims Jiang Moumou (female, 63 years old) and Chen Moumou (male, 42 years old) who were walking in the same direction on a certain road were injured by two mother and son. Jiang Moumou died after rescue. The public security organs determined that Zhang Qingshan bear full responsibility for the accident. The procuratorate believes that Zhang Qingshan's traffic accident caused by driving a vehicle in violation of traffic laws and regulations, resulting in one death and one injury, should be investigated for criminal responsibility for the crime of causing traffic accidents. The court was asked to sentence Zhang Qingshan to two years and six months in prison in accordance with the provisions of Article 133 and the third paragraph of Article 67 of the the People's Republic of China Criminal Law. The plaintiffs of the incidental civil action, Chen Mouwen and Chen Moumou, filed an incidental civil action with the court, requesting Zhang Qingshan to compensate Jiang Moumou for death compensation, funeral expenses, medical expenses and other economic losses totaling 970387.58 yuan. Chen Moumou filed an incidental civil lawsuit to the court, petitioning Zhang Qingshan to compensate for medical expenses, food subsidies, nursing expenses, lost work expenses, and transportation expenses, totaling 12193.75 yuan. The court held that Zhang Qingshan constituted a traffic accident crime and should be punished in accordance with the law and sentenced Zhang Qingshan to 2 years in prison. Zhang Qingshan was also sentenced to compensate the plaintiffs of the incidental civil action Chen Mouwen and Chen Moumou for medical expenses, death compensation, and funeral expenses, totaling 970387.58 yuan; Zhang Qingshan was sentenced to compensate the plaintiff of the incidental civil action Chen Moumou for medical expenses, food subsidies, Nursing expenses, lost work expenses, transportation expenses, a total of 12193.75 yuan. For this reason, Li Jing, Zhang Qingshan's spouse, wanted to keep more property and applied to the court for the division of the couple's common property. Can the consultation be supported? Lawyer's opinion First of all, according to the provisions of the the People's Republic of China Civil Code, the request for the division of the joint property of husband and wife should be a legal fact of divorce, or there are major reasons. Secondly, the material reason cannot be extended. The major reason is: one party has hidden, transferred, sold, destroyed, squandered the joint property of the husband and wife, or forged the joint debt of the husband and wife, etc., which seriously damages the interests of the joint property of the husband and wife, or when the person with the legal maintenance obligation suffers from a major illness and needs medical treatment, If he does not agree to pay the relevant medical expenses, he may propose to divide the joint property of the husband and wife within marriage. In other circumstances, the joint property of the husband and wife shall not be divided. Third, because in this case Li Jing is due to the spouse Zhang Qingshan crime need to pay compensation in the incidental civil action, Li Jing in order to retain more property, the application for the division of the joint property of the husband and wife, the application is not a major reason for the division of the joint property of the husband and wife within the marriage. Finally, when the people's court executes the judgment of incidental civil action, it will refer to the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" to leave property for the family members of the person subject to execution that meets their basic living needs. Judicial Viewpoint of the Supreme People's Court If there is no agreed property system between husband and wife, the system of joint income after marriage is implemented, the most typical form of which is the common ownership of husband and wife. The request for division of the joint property of the husband and wife shall be "the loss of the common basis or there is a significant reason". For the husband and wife, the loss of the common basis should be the legal fact that divorce has occurred, and the reason for dividing the common property of the husband and wife without divorce is not valid. From the technical point of view of "legislation", after listing the above two "major reasons", the judicial interpretation does not have a general clause or adopt the word "etc", so as to give the applicable person flexibility according to the specific circumstances of the case. However, legislators mainly consider that the common property of husband and wife is the main economic basis for maintaining the family life of the marriage parties. Easily shaking this foundation will have a negative impact on the marriage and family life of the parties and the relationship between husband and wife. Therefore, in the case of no divorce, the division of the joint property of husband and wife through litigation is a very special case, and the scope of application shall not be expanded without authorization. When one of the spouses commits an intentional crime and needs to pay a huge amount of compensation in a criminal incidental civil action, the people's court shall not support the application for the division of the joint property of the husband and wife for the purpose of keeping more property for themselves, including their minor children. When executing a judgment in an incidental civil action, the people's court will not take the personal property of other family members of the person subject to execution as the subject of execution; if the joint property of husband and wife is executed, it will also leave property to the family members of the person subject to execution that meets their basic living needs. Legal provisions 1. Article 203 of the Civil Code stipulates that if the co-owners agree not to divide the shared real or movable property in order to maintain the common relationship, they shall follow the agreement, but if the co-owners have major reasons to need to divide, they may request division. If there is no agreement or the agreement is unclear, the co-owners may request division at any time, and the co-owners may request division when the basis of sharing is lost or there are major reasons for division. If the division causes damage to other co-owners, compensation shall be paid. 2. Article 1062 of China's Civil Code stipulates that the following property acquired by husband and wife during the marriage relationship shall be the joint property of husband and wife and shall be jointly owned by husband and wife: (I) wages, bonuses and remuneration for labor services; Income from (II) production, operation and investment; Proceeds from the (III) of intellectual property rights; Property inherited or donated by the (IV), except as provided in Item 3 of Article 1063 of this Law; (V) other property which shall be owned jointly. Husband and wife have equal rights to dispose of common property. 3. Article 1066 of the Civil Code stipulates that during the existence of the marriage relationship, under any of the following circumstances, one of the spouses may request the people's court to divide the common property: One of the (I) parties has concealed, transferred, sold off, destroyed or squandered the joint property of the husband and wife, or forged the joint debts of the husband and wife, which seriously damages the interests of the joint property of the husband and wife; (II) a person with a legal maintenance obligation suffers from a major illness and needs medical treatment, the other party does not agree to pay the relevant medical expenses. 4. Article 9 of the Supreme People's Court's "Several Provisions on the Partial Execution of Criminal Judgments Involving Property" stipulates that if a sentence of confiscation of property is imposed, the property legally owned by the person subject to execution shall be executed when the criminal judgment takes effect. In the execution of the penalty of confiscation of property or fine, the living expenses of the person subject to execution and his dependent family members shall be retained with reference to the minimum living expenses of the local residents of the previous year announced by the government of the place where the dependants live.
2022-04-30
30
2022-04
1. Introduction According to the the People's Republic of China Company Law and the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the qualified subject to exercise the shareholders' right to know is the shareholders of the company. However, in judicial practice, it is often controversial whether the plaintiff has the status of a shareholder who enjoys the right to know. This paper will combine the current law, the provisions of judicial interpretation and the judicial cases of disputes over shareholders' right to know to analyze the determination of the subject of the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law of the People's Republic of (II) (as amended in 2020) Article 7 Where a shareholder, in accordance with the provisions of Articles 33 and 97 of the Company Law or the Articles of Association of the Company, sues for the inspection or copying of specific documents and materials of the Company, the people's court shall accept them in accordance with the law. If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a shareholder of the company at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that its legitimate rights and interests have been damaged during the shareholding period, and requests to consult or copy the company's specific documents and materials during the shareholding period in accordance with the law. Sorting out 3. referee rules The general principle of the determination of the subject of the exercise of the right to know of (I) shareholders. The general principle of the determination of the subject of the exercise of the shareholders' right to know is to qualify as a shareholder of the company. The court will often determine whether the plaintiff has the qualification of a shareholder based on the external registration information of the company, the articles of association, the register of shareholders, the certificate of capital contribution and other documents that can reflect the identity of the shareholder. Therefore, shareholders should submit shareholder qualification documents when filing a shareholder's right to know lawsuit. [Case 1] Dispute over Shareholders' Right to Know between Applicant Yangzhou Xicheng Real Estate Development Co., Ltd. and Respondent Rongwei International Development Co., Ltd. (Case No.:(2019) Supreme Law Minshen No. 5859, Trial Court: Supreme People's Court) The court held that the industrial and commercial registration information showed that Rongwei Company held the equity of Xicheng Company. Although Xicheng Company advocates that there is a "Supplementary Agreement" that can prove that Roewe Company has transferred its equity, it has not gone through the corresponding industrial and commercial change registration, nor has it gone through the procedures for foreign investment approval. Rongwei company in the case of the first instance cross-examination of the "supplementary agreement" is not recognized. Combined with the foregoing analysis, Xicheng did not provide sufficient evidence to overturn the contents of the industrial and commercial registration data. According to the second paragraph of Article 32 of the the People's Republic of China Company Law, the original trial court ruled that Roewe Company, as a shareholder of Xicheng Company recorded in the register of shareholders, has the right to exercise the shareholders' right to know to Xicheng Company. [Case 2] Retrial Dispute between Applicant Lanzhou Huamei Trading Co., Ltd. and Respondent Zhou Wanyin's Shareholders' Right to Know (Case No.:(2019) Gan Minshen No. 82, Trial Court: Gansu Higher People's Court) The court held that the certificate of capital contribution is in nature a certificate of real rights, a certificate of proof that the shareholders hold shares or capital contributions. In this case, on July 15, 2014, the "Certificate of Shareholder's Capital Contribution" sealed by Huamei Trading Company and signed by the legal representative Jiao Huaizhou stated: "The company's shareholder Zhou Wanyin paid the company on January 15, 2013. The capital contribution is 400,000 yuan (the above invested capital is my own capital, and the capital can be used to bear the civil liability of the enterprise during its use). Such shareholder shall, from the date of issuance of this capital contribution certificate, enjoy the rights of shareholders as stipulated in the Articles of Association of the Company." On January 5, 2015, the industrial and commercial change registration was made, so it was not improper for Zhou Wanyin to enjoy the shareholders' right to know according to the original judgment. Huamei Trading Company's claim that Zhou Wanyin's transfer of shares did not comply with the provisions of the law and the Articles of Association of the Company and Zhou Wanyin's fraudulent registration of industrial and commercial changes cannot be countered against Zhou Wanyin's "Certificate of Shareholder Capital Contribution" and industrial and commercial registration. (II) whether the withdrawing shareholder/transferring shareholder can exercise the shareholder's right to know Prior to the implementation of the (IV) of the Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Company Law, most courts would rule to dismiss the action of the withdrawing/transferring shareholder on the grounds that the withdrawing/transferring shareholder was not qualified as a shareholder. Article 7 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law adds the limited right to know of the shareholders who have withdrawn shares/transferred shares, that is, "if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualification of a company shareholder at the time of prosecution, the people's court shall reject the prosecution, but the plaintiff has preliminary evidence to prove that his legitimate rights and interests have been damaged during the period of shareholding, except for requesting legal access to or copying of company-specific documents during the period of its shareholding". In other words, in order to exercise the shareholders' right to know, the withdrawing shareholders/transferring shareholders need to have preliminary evidence that their legitimate rights and interests have been damaged during the holding period. In judicial practice, most courts have held that the "legitimate rights and interests" here do not refer to arbitrary shareholders' rights, but mainly to property rights and interests that affect the distribution of profits or the distribution of surplus property, and that if only non-property rights and interests are harmed, it may still be impossible to exercise the right to know. [Case 1] Dispute between Appellant Shanghai Zhongshan Car Rental Company and Appellee Xue Hong Shareholders' Right to Know (Case No.:(2019) Hu 02 Min Zhong No. 1660, Trial Court: Shanghai No.2 Intermediate People's Court) The court held that the question of whether the original shareholders of the joint-stock cooperative enterprise have a limited right to know. The articles of association of Zhongshan Automobile Company do not stipulate the content of shareholders' right to know. Considering the commercial organizational nature of the shareholder cooperative enterprise, which has a certain degree of similarity with the limited liability company, and Zhongshan Automobile Company also agreed to apply the Company Law and its judicial interpretation in the appeal, the provisions of the Company Law and the relevant judicial interpretation can be referred to in this case. The second paragraph of Article 7 of the "Interpretation IV of the Company Law" stipulates: "If the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court shall reject the lawsuit, but the plaintiff has preliminary evidence to prove that during the shareholding period Its legitimate rights and interests have been damaged, except for requesting to consult or copy the company's specific documents during the shareholding period in accordance with the law." According to this article, although Xue Hong has lost the shareholder qualification of Zhongshan Automobile Company, because Zhongshan Automobile Company has never distributed profits during Xue Hong's shareholding period and has not yet settled the refund of Xue Hong's withdrawal amount, it meets the condition that "the plaintiff has preliminary evidence to prove that its legitimate rights and interests were damaged during the shareholding period". Therefore, the court believes that Xue Hong, as the original shareholder of Zhongshan Automobile Company, enjoys limited shareholders' right to know. [Case 2] Dispute over Shareholders' Right to Know between Applicant Shandong Rongsheng Investment Co., Ltd. and Respondent Qingdao Shenhua Real Estate Co., Ltd. (Case No.:(2019) Lu Minshen No. 3159, Trial Court: Shandong Higher People's Court) The court held that: Article 7, paragraph 2, of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that if the company has evidence to prove that the plaintiff specified in the preceding paragraph does not have the qualifications of a company shareholder at the time of the lawsuit, the people's court The lawsuit shall be rejected, but the plaintiff has preliminary evidence to prove that his legal rights and interests were damaged during the shareholding period, except for requesting to consult or copy the company's specific documents during the shareholding period. In accordance with the above provisions, Rongsheng Company shall provide preliminary evidence to prove that Shenhua Company harms its interests during the period of its shareholding. According to the facts ascertained in the original trial, both parties agreed that Beijing Yuanzhong Real Estate Development Co., Ltd., the shareholder of Shenhua Company, was responsible for the operation of Shenhua Company. Therefore, the loan purpose and house operation mode of Shenhua Company advocated by Rongsheng Company belong to the company autonomy category of daily operation of Shenhua Company. And in the resolution of the shareholders' meeting held by Shenhua Company on February 28, 2018, the follow-up operation of the house developed by Shenhua Company and the company's capital status were also resolved as the topics of the meeting. It is also reflected in the letter of intent for equity transfer on June 27, 2013. Rongsheng Company did not provide preliminary evidence to prove the fact that its legitimate rights and interests were damaged during the period of its shareholding, and the original ruling rejected the facts and applied the law. (III) whether the successor shareholder can exercise the shareholder's right to know about the information before it becomes a shareholder. A successor shareholder is a shareholder who acquires the qualification of a shareholder by way of transfer of equity, acceptance of gifts, inheritance of equity, etc. Based on the lack of trust of the original shareholders in the successor shareholders, the continuing shareholders to obtain shareholder qualification before the operating level may have defects and other reasons, the refusal of the successor shareholders to access the information before they become shareholders of the company often occurs, which leads to the shareholders' right to know litigation. In this regard, there are mainly two different views in judicial practice: the first is that the successor shareholder cannot exercise the shareholder's right to know about the information before he becomes a shareholder; the second is that the successor shareholder enjoys the shareholder's right to know about the information before he becomes a shareholder, and the current mainstream judicial view is the second, mainly for the following reasons: 1. Existing laws and judicial interpretations do not prohibit shareholders from accessing the company information before they became shareholders. Once you become a shareholder of the company, you have exactly the same rights as other shareholders and should not be treated differently or limited by the time you become a shareholder of the company. 2. The operation of the company is a whole, dynamic and continuous process. The business decisions made by the company are closely related to the transactions and decisions that have taken place before. When shareholders exercise their voting rights on the company, they also take the understanding of the overall situation of the company as a prerequisite. 3. Shareholders shall be liable for the debts of the Company to the extent of their capital contributions, including the debts incurred by the Company prior to their accession, and from the point of view of the consistency of rights and obligations, shareholders shall also have the right to consult and copy the relevant documents of the Company prior to their accession. [Case 1] Dispute between Appellant Beijing Forty People Forum Consulting Co., Ltd. and Appellee Zhang Jialin Shareholders' Right to Know (Case No.:(2022) Beijing 02 Minzong No. 1675, Trial Court: Beijing No.2 Intermediate People's Court) The court held that: First of all, Article 33 of the Company Law clearly stipulates that the shareholders of a limited liability company have the right to consult and copy the articles of association, the minutes of the shareholders' meeting and other documents and to request access to the company's accounting books, and does not prohibit shareholders from consulting the relevant documents before they become shareholders. Secondly, the legislation of shareholders' right to know is intended to allow shareholders to fully grasp the company's information, management activities and risk status, so as to supervise the company's management and protect the legitimate rights and interests of shareholders. The company's operation is a whole, dynamic and continuous process, the company's business decisions are closely related to the previous transactions and decisions, shareholders in the exercise of voting rights in the company is also based on the understanding of the overall situation of the company. In addition, the shareholders shall be liable for the debts of the company to the extent of their capital contribution, including the debts incurred by the company before the shareholders joined, so from the point of view of the consistency of rights and obligations, the shareholders shall also have the right to consult and copy the relevant documents of the company before their accession. Therefore, it is not improper for the court of first instance to support Zhang Jialin to consult and copy the relevant documents of the company before he became a shareholder. The Forty-Person Forum's claim that Zhang Jialin's exercise of the shareholders' right to know should be limited to his appeal after he became a shareholder has no factual and legal basis, and the Court does not support it. [Case 2] Plaintiff Wang Yanfeng and Defendant Changzhou Sanli Precision Machinery Co., Ltd. Shareholder's Right to Know Dispute (Case No.:(2012) Zhong Shang Chu Zi No. 555, Trial Court: Zhonglou District People's Court of Changzhou City, Jiangsu Province) The court held that: regarding the defendant's argument that the plaintiff only obtained the shareholder qualification in 2008, it can only consult the accounting books after 2008, the court held that the shareholders' right to know is an inherent legal right of the shareholders of the company. once they become shareholders of the company, they enjoy exactly the same rights as other shareholders and should not be treated differently or restricted according to the time they become shareholders of the company. therefore, the defendant's argument has no legal basis and will not be accepted. As to whether the plaintiff's request for access to the accounting books two years ago from the date of prosecution has exceeded the statute of limitations, in this case, the statute of limitations is essentially a question of the scope of access. The court held that the company's operation is a process of overall continuity, the company's situation today may be the result of previous operations, if the absolute identity of the right, shareholders may not access to the relevant information before the acquisition of shareholder identity, will inevitably lead to incomplete protection of shareholders' rights and interests. After a shareholder joins the company and becomes a shareholder, the understanding and mastery of the company's operating conditions and financial information before he becomes a shareholder should fall within the scope of his proper exercise of the shareholder's right to know, so in this case the plaintiff has the right to request access to the company's accounting books before he joined the company. (IV) whether dormant shareholders can exercise shareholders' right to know Existing laws and judicial interpretations do not recognize that anonymous shareholders have direct shareholder rights over the company. In principle, the hidden shareholder cannot directly exercise the shareholder's right to know, its rights need to be exercised indirectly through the prominent shareholder, most courts will rule to dismiss the anonymous shareholder's lawsuit on the grounds that the anonymous shareholder is not qualified to bring the shareholder's right to know before the name is revealed. However, in conjunction with judicial cases, the court may also support its right to know request if the anonymous shareholder can prove that the company and other shareholders recognize its status as an anonymous shareholder, that the anonymous shareholder has exercised the rights of shareholders, and that the exercise of the rights of the anonymous shareholder is legitimate. [Case 1] Dispute between Plaintiff Liu Kewei and Defendant Shanxi Fengneng Refractory Co., Ltd., Third Party Wu Zhaowei and Huo Kaiyang Shareholders' Right to Know (Case No.:(2021) Jin 0781 Minchu No. 1827, Trial Court: Jiexiu Municipal People's Court of Shanxi Province) The court held that Article 32, paragraph 2, of the the People's Republic of China Company Law stipulates: "Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders." The Supreme People's Court on the application<中华人民共和国公司法>若干问题的规定（三）》第二十四条第三款规定：“实际出资人未经公司其他股东半数以上同意，请求公司变更股东、签发出资证明书、记载于股东名册、记载于公司章程并办理公司登记机关登记的，人民法院不予支持”。本案中，各方当事人对刘克维系山西丰能公司实际出资人的身份以及霍凯洋系山西丰能公司名义出资人的身份均无异议。根据前述法律规定可知，股东知情权是法律赋</中华人民共和国公司法>
2022-04-30
28
2022-04
On April 27, Zhongcheng Qingtai set up the "Anti-Epidemic Volunteer Lawyers Service Group" (hereinafter referred to as the "Service Group") to organize lawyers to actively participate in the prevention and control of the epidemic in Jinan City. The service group is divided into four legal service groups: government, small and medium-sized enterprises, community and medical care. The member lawyers will provide the city with legal publicity and free legal advice related to the epidemic through telephone, email and WeChat, and support the prevention and control of the epidemic in the lawyers' communities according to actual needs. Since April 26, lawyers Zhongcheng Qingtai Shumengjiao, He Zefeng, Zhou Jiakui, Tong Yang, Yan Pingping and Che Xiaoyang have participated in the epidemic prevention and control work of China Construction Eighth Bureau dormitory at No. 11 Yaojia South Road, Huixiangyuan Community, Yanshan Street Community and Yaojia Street Lantianyuan Community respectively, serving as nucleic acid testing volunteers in the above communities. On April 27, following the donation of 20,000 yuan of anti-epidemic materials to the sub-district office of Zhijin City on March 31, Zhongcheng Qingtai and the New Era Civilized Practice Volunteer Service Corps of Lixia District jointly set up the "Zhongcheng Qingtai Uniting for Epidemic Prevention and Control" volunteer service project, and donated 30000 yuan to the project. The project upholds the dedication concept of "everyone = everyone, you and I love = volunteer", gives full play to the positive role of voluntary service in epidemic prevention and control, and further enriches the grassroots epidemic prevention force. All project volunteers will sink to the front line of community epidemic prevention, assist the community in providing voluntary services such as follow-up of key personnel, maintenance of nucleic acid testing order and route guidance, epidemic prevention and control publicity, environmental elimination, "two-yard" verification, handling of epidemic prevention materials and care for frontline medical personnel. Zhongcheng Qingtai has always been brave to assume social responsibility and enthusiastic about social welfare undertakings. In the prevention and control of previous epidemics, Zhongcheng Qingtai lawyers are concerned about the front line of the epidemic, donating money and materials, based on their posts, exerting their expertise, actively popularizing the law, taking responsibility, and continuing to contribute to the fight against the epidemic. Introduction to Public Welfare Column Since its establishment, Zhongcheng Qingtai has the courage to assume social responsibilities and is enthusiastic about social welfare undertakings. Many lawyers have served as members of the CPPCC at the provincial, municipal, and district levels, actively participated in politics, and held important positions in many social institutions. Zhongcheng Qingtai has served the Women's Federation, the Disabled Persons' Federation, the Red Cross and other social welfare organizations all the year round. It has set up "education scholarships" and "scientific research project funds" in many colleges and universities in the province, donating millions of yuan to build a "teaching practice base" with colleges and universities; actively participate in the construction of the Hope Project, donate lawyers Hope Primary School, and spare no effort to donate money and materials to poor and disaster-stricken areas. Zhongcheng Qingtai lawyers actively participate in the work of "one village (community) one legal adviser" and carry out counterpart assistance. Actively undertake legal aid obligations, whether it is the "11 legal aid" organized by the Ministry of Justice or the "legal aid activities in counties without lawyers", Zhongcheng Qingtai lawyers always shoulder heavy responsibilities bravely. In 2022, Zhongcheng Qingtai set up a public welfare executive committee. In order to facilitate the general public to obtain public welfare legal services in a timely manner and further strengthen the work of public welfare legal services, Zhongcheng Qingtai will set up a public welfare column on WeChat Public Number to publicly deliver various public welfare legal service activities carried out by Zhongcheng Qingtai to the whole society.
2022-04-28
26
2022-04
April 26 is World Intellectual Property Day. It was established by the World Intellectual Property Organization (World Intellectual Property Organization, abbreviated WIPO). The purpose is to promote all sectors of society to establish the awareness of respecting knowledge, advocating science, protecting intellectual property rights, and creating encouragement of knowledge innovation and protection. Legal environment for intellectual property rights. China Construction Eighth Engineering Bureau Co., Ltd. has always attached great importance to the acquisition, protection and operation of intellectual property rights. On the 22nd World Intellectual Property Day, China Construction Eighth Engineering Bureau organized subsidiaries and branches across the country to conduct the 2022 "4.26" intellectual property law popularization training. In view of the epidemic situation, the training set up 23 online sub-venues nationwide and nearly 700 people attended the meeting. Zhongcheng Qingtai (Jinan) Law Firm was invited to participate in this meeting, and the deputy director Cheng Shoufa made a sharing exchange entitled "The Way of Intellectual Property Attack and Defense". Lawyer Cheng met the specific business lines and project management requirements of construction enterprises, and introduced the legal risks and compliance management suggestions in intellectual property management and operation in detail and vividly, helping the participants to improve the awareness and level of enterprise intellectual property management and operation. Zhongcheng Qingtai Law firm has long attached importance to the enterprise intellectual property strategy and the construction of intellectual property system, formed the enterprise intellectual property construction system and other legal service products, and will devote long-term efforts to strategic planning, human resources, financial management, marketing, product research and development, the whole life cycle of intellectual property rights, the internal mechanism structure of enterprises and other aspects, for enterprises to tailor the intellectual property protection and operation scheme suitable for their own characteristics, promote the steady improvement and development of enterprises with high efficiency and high quality.
2022-04-26
25
2022-04
The Sub-district Office (hereinafter referred to as the "Sub-district Office") is the management agency of the township-level administrative district in my country. It is an agency dispatched by the district government and belongs to the township-level administrative district management agency with the town people's government (hereinafter referred to as the "town government"). Construction, public services, urban management, social governance, etc. exercise comprehensive management functions, are fully responsible for the coordination of regional, social, and mass work in the jurisdiction, and create a good development environment. One end of the street office and the town government is connected with the grass-roots level of society, which is the "nerve endings" closest to the people; the other end is connected with the government, which is the foothold of government power, implements the political intention and administrative concept of the higher government, and widely contacts the residents in the jurisdiction, It plays an important role in promoting regional economic development, serving and improving people's livelihood, and comprehensive management of social security. The street office and the town government are powerful assistants to the policy of governing the country according to law. The "Jinan City Property Management Regulations", which will be implemented on May 1, 2022, clarifies the organization, coordination, guidance and supervision of "people" and "things" in the property management area by the street office and the town government. Regarding the responsibilities of the street office and the town government in property management, Article 5 of the Jinan City Property Management Regulations makes inductive provisions on the responsibilities of the street office and the town government. The relevant content of the regulations also shows many bright spots. The specific content is analyzed and summarized as follows: The 1. is responsible for organizing and guiding the establishment of the owners' assembly and the election and change of the owners' committee in its jurisdiction. 1. Set up the preparatory group for the owners' meeting The construction unit or the preliminary property service person shall report the number, area and proportion of owners to the subdistrict office and the town government within 10 days from the date of delivery. If the conditions for holding the first owners' meeting are met, the subdistrict office and the town government shall form a preparatory group for the owners' meeting within 60 days. The construction unit or the preliminary property service person shall submit a written report in accordance with the requirements of the subdistrict office and the town government, the subdistrict office and the town government shall have the right to inquire the name of the owner, the location of the house and the floor area of the exclusive part of the real estate registration institution. 2, send personnel to serve as the leader of the preparatory group The preparatory group consists of an odd number of more than 7 people, and the group leader is appointed by the neighborhood office and the town government, who is responsible for presiding over and convening the preparatory group. The preparatory group shall announce the list of its members and their duties within 10 days after its establishment. 3. Extension of consent and re-establishment of the preparatory group The preparatory group shall organize the first meeting of the owners' assembly within 90 days from the date of its establishment. If there are special circumstances, with the consent of the street office and the town government, it can be extended for 30 days and announced in the property management area. If the task of organizing the first meeting of the owners' assembly is not completed, the preparatory group shall be dissolved on its own. Within 90 days from the date of dissolution of the preparatory group, the subdistrict office and the town government shall re-establish the preparatory group. 4. Determine the list of candidates for the members of the owners' committee The candidates for the members of the owners' committee shall be selected by the owners' self-recommendation or joint recommend. The list shall be determined by the street office and the town government, and the basic information of the candidates shall be publicized by the preparatory group in the property management area. 5. Receive the filing information of the owners' committee The district housing and urban-rural construction authorities will push the filing information of the eligible owners' committee to the street office and the town government. 6. Urge the owners' committee to prepare for the general election 90 days before the expiration of the term of office of the owners' committee, it shall report in writing to the street office and the town government, and start the preparatory work for the general election; if the owners' committee fails to report within the time limit or start the preparatory work for the general election, the street office and the town government shall urge it to perform its duties. 7. Establishment of temporary property management committee If the conditions for the establishment of the owners' meeting are met, the owners' meeting has been organized twice but the owners' committee has not been elected, or the owners' committee needs to be re elected due to the expiration of its term of office or the vacancy of its members or being removed. However, a new owners' committee cannot be elected after being organized and guided by the street office and the town government twice, The street office and town government shall form a temporary property management committee. The director and deputy director of the temporary property management committee are selected by the neighborhood office and the town government from the representatives of the residents committee and the owners. The street office and the town government shall publicize the list of members of the temporary property management committee in the property management area before the establishment of the temporary property management committee, and the publicity time shall not be less than 7 days; if the owner has any objection, he may submit it to the street office or the town government with his real name. 2. supervise the owners' assembly and owners' committee to perform their duties according to law 1. Supervise the transfer of relevant matters of the original owners' committee Supervise the original owners' committee to transfer the seals, funds, office space, articles and materials kept and used by the original owners' committee to the new owners' committee within 3 days from the date of expiration of the term of office. 2. Supervise the legal compliance of the decisions of the owners' assembly and the owners' committee The decisions of the owners' assembly and the owners' committee shall not violate the provisions of laws, regulations, management regulations and rules of procedure of the owners' assembly. In case of violation of laws, regulations and other provisions, the street office or the town government shall order it to make corrections within a time limit or revoke its decision, and make an announcement to all owners. 3. Supervise the owners' committee to perform its duties in accordance with the law and regulations, and not damage the owners' rights and interests The owners' committee has exceeded its authority to exercise the powers of the owners' assembly or fails to implement the decisions of the owners' assembly, fails to organize and convene the owners' assembly meeting in accordance with the rules of procedure, misappropriates or embezzles residential special maintenance funds, owners' public income, makes decisions that violate laws and regulations, fails to publicize property management information such as the use and management of residential special maintenance funds, the use and management of owners' public income, and the use of property service houses, forgery and other acts that infringe upon the legitimate rights and interests of the owners, the street office and the town government shall order them to make corrections within a time limit, and if they refuse to make corrections within the time limit and cause serious consequences, the street office and the town government shall organize a meeting of the owners' meeting, propose to terminate the qualifications of all members of the owners' committee and initiate the procedure of re-election in advance; suspected illegal acts, Should report to relevant departments. 4. Supervise and guide the temporary property management committee the term of office of the provisional estate management committee shall not exceed two years. During the term of office, at least one meeting of the owners' assembly shall be organized every year to promote the establishment of the owners' assembly and elect the owners' committee. If the establishment of the owners' assembly or the election of the owners' committee is not promoted at the expiration of the period, the street office and the town government shall re-establish the temporary property management committee. The temporary property management committee shall disclose the relevant information of property management to the owners in a timely manner, and accept the guidance and supervision of the street office and the town government. If the decision made by the temporary property management committee violates laws and regulations, the street office or town government shall order it to make corrections within a time limit or revoke its decision in accordance with the law, and notify all owners. 3. the establishment of a joint meeting system for property management in the jurisdiction The property management joint meeting is convened by the neighborhood office and the township government, and is attended by community residents committees, public security police stations, property service providers, owners' committees or owners' representatives, professional business units, comprehensive law enforcement, property management and other departments. The main coordination of the joint meeting: 1. The owners' committee and relevant departments fail to perform their duties in accordance with the law; 2. Problems in the performance of exit procedures and handover work by property service personnel; 3. Emergencies in the property service area; 4. The connection and cooperation between property management and community management; 5. Other property management matters that need to be coordinated. 4. coordinate the handling of important issues and issues in property management 1. Disclosure of information to the owners in accordance with the provisions of these Regulations If the street office, the town government and the residents' committee are obliged to disclose information to the owners in accordance with the provisions of these regulations, they shall publish it in writing at the main entrances and exits of the property management area, the bulletin board, the property service room and other prominent locations, and the disclosure period shall not be less than seven days, and fill in the municipal property management service information system at the same time. 2. Property management area delineation Before the delimitation of the property management area, the opinions of the street office and the town government shall be solicited; after the delimitation, the information shall be pushed to the street office and the town government. 3. Supervise the voting results of the owners' meeting The owners' committee will report the voting results to the neighborhood office and the town government during the publicity period; if the publicity is not made within the time limit or the publicity does not meet the conditions, the neighborhood office and the town government shall order it to make corrections within a time limit, and if it fails to make corrections within the time limit, it shall be announced. 4, invited to participate in the property to undertake inspection work The construction unit shall carry out the property undertaking inspection work with the selected early-stage property service personnel after the completion and acceptance of the construction project, and shall invite a certain number of owner representatives and the street office, town government, and town government where the property is located to participate, and may hire relevant professionals when necessary Institutional assistance. 5. Supervise and guide the handover of the construction unit Supervise and guide the construction unit to hand over the copy of the property service room and relevant property management information to the property service person. 6, access to property services to establish and preserve the files and information 7. Coordinate property service personnel to take emergency measures When major hidden dangers of accidents or safety accidents and other emergencies are discovered, the property service person shall take emergency measures in a timely manner, notify the relevant owners, and report to the residents committee, sub-district office, town government, professional unit and safety supervision of the property in accordance with regulations. The department responsible for management reports to assist in related work. 8. Supervise and coordinate the handover of property service personnel The street office, town government, district and county housing and urban-rural construction departments where the property is located shall strengthen the supervision and coordination of the handover of property service personnel. If the property service person refuses to hand over the relevant materials, funds and articles, or refuses to withdraw from the property service area, the owners' committee or the owner may report to the street office, the town government, the district and county housing and urban-rural construction departments. 9. Organize and provide emergency services to maintain the basic living services of the owners When the property service provider terminates the property service without authorization in violation of the contract, resulting in a sudden loss of management, the street office and the town government shall organize and determine the emergency property service provider to provide emergency services such as garbage removal and elevator operation to maintain the basic living services of the owners. The street office and the town government shall publicize the service items, service standards and property fees for emergency services provided during the emergency service period in the property management area, and the property fees during the emergency service period shall be borne by all owners. During this period, the street office and the town government shall organize the owners to jointly decide on the selection of new property service personnel and coordinate the handover between the newly selected property service personnel and emergency property service personnel. 10, Mediation of Conflicts and Disputes in Property Management If there is a dispute between the owner, the owners' assembly, the owners' committee, the property service person, the professional business unit, and the construction unit due to the property management, it shall first negotiate and resolve it by itself; if the negotiation fails, it may apply to the street office, the town government or the residents committee for mediation. 11, the establishment of emergency response work system and materials and self-built security mechanism. The municipal, district and county people's governments, sub-district offices, and town governments shall include owners' committees and property service providers in the emergency response work system for epidemics and other related emergencies, and establish a material and financial guarantee mechanism. During the period of responding to public emergencies, the sub-district office and the town government are responsible for implementing various emergency measures taken by the municipal, district and county people's governments in accordance with the law, guiding property service providers to carry out corresponding levels of response work, and providing corresponding material and financial support. The street office and the town government shall perform their duties in strict accordance with the regulations, otherwise the higher-level competent authority or procuratorial organ will order them to correct violations of laws and regulations, and impose sanctions on the directly responsible persons in charge and other directly responsible persons in accordance with the law.
2022-04-25
24
2022-04
Basic case Zhang is an individual business operator, and Li is a husband and wife relationship. In September 2017, Zhang borrowed money from Tai one after another. On May 8, 2018, after Zhang and Tai audited the accounts, together with the interest, Tai issued an IOU with an amount of 400000 yuan. The IOU did not stipulate interest, and it was agreed that this amount would be from April 10 to April 2019. One-time return on the 20th, if overdue, the interest will be settled in accordance with relevant laws and regulations. On October 9, 2019, Tai asked Li for money but failed to sue to the court, demanding that the loan principal be returned to 400000 yuan, and from May 8, 2018 to the date when the loan was repaid, the annual interest rate was 6%. Pay interest; litigation costs are borne by Zhang and Li. Zhang replied that there was beheading interest in 400000 yuan's IOU, and the actual loan principal was 370000 yuan. There is no objection to the authenticity of the 400000 yuan transfer record provided by Tai, because there are frequent business transactions between the two sides, of which 30000 yuan's transaction record is the payment for goods from individual industrial and commercial households paid by Tai. Li argued that although he was a husband and wife relationship with Zhang, the two were emotionally discordant. He did not rule out a false lawsuit between Zhang and Tai, and had objections to the authenticity of the IOU. He did not know or sign the loan, and the loan was not used. Family life and business, so it is not a joint debt of husband and wife. The court of first instance held that Zhang borrowed money from Tai, and the facts were clear and the evidence was indeed sufficient. According to the Supreme People's Court on the application<中华人民共和国婚姻法>Article 24 of the (II) for Interpretation of Certain Issues states that creditors who claim rights over the debts incurred by one of the spouses in their own name during the marriage relationship shall be treated as the joint debts of the husband and wife. Li mou argued that he did not know about the loan, the receipt was not signed by Zhang mou, did not submit relevant evidence, did not provide evidence to prove that the debt belonged to Zhang mou's personal debt, and his defense was not accepted. The judgment supports Tai's claim. Both Zhang and Li refused to accept the judgment and appealed to the court of second instance, saying that Zhang had frequent business contacts between the two sides, of which the transaction record of 30000 yuan was the payment for goods from individual industrial and commercial households paid by Tai, and the second instance submitted the details of sales records of individual industrial and commercial households. First of all, Li Mou appealed that Zhang's signature in the IOU provided by Tai Mou was not his own, and now Li Mou requires handwriting identification. Secondly, Li Mou thinks that Tai Mou stated in the original trial that the 400000 yuan loan was formed by three loans. The first loan was formed in September 2017. Now Li Mou finds out the receipt issued by Tai Mou to Zhang on December 31, 2018 at home, it is proved that the loan has been paid off in September 2017, so Tai's statement in court is not true and the IOU is false. Thirdly, according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of cases involving marital debt disputes, Li did not know or sign the loan, and there was no evidence to prove that it was used for family life and business, so it was not a joint debt of husband and wife. Tai argued that the 400000 yuan IOU issued by Zhang to Tai was issued by Zhang after the final settlement of multiple loans in Tai. According to Articles 24 and 26 of the Judicial Interpretation of the the People's Republic of China Marriage Law, Li should bear Repayment responsibility. In the second instance, upon Li's application, whether Zhang's signature in the 400000 yuan IOU on May 8, 2018 was written by himself was verified by handwriting. The appraisal opinion was: Zhang's signature was written by the borrower in the IOU, and the handwriting was written by Zhang himself. The court of second instance ruled that the appeal was rejected and the original judgment was upheld. Zhang and Li both refused to accept the second instance judgment and applied for a retrial. In the light of this case, how does the civil retrial application list the status of the parties? In practice, after the court accepts the application for retrial, how does it list the status of the parties? First, Zhang and Li, as defendants in the first instance and appellants in the second instance, can apply for a retrial if they refuse to accept the judgment of the second instance. Zhang and Li can jointly write a retrial application. Both parties are retrial applicants. Tai is the respondent. Zhang and Li specify the specific facts and reasons in the application. If Zhang and Li apply for retrial respectively, the court will also combine the review. Second, in practice, if both parties are not satisfied with the effective judgment and apply for retrial, within the statutory time limit, the court accepts and examines the retrial application of one party, and if the other party also applies for retrial, the court will review it together, listing both parties as the retrial applicant, and the review period shall be recalculated. If both parties apply for a retrial, one or both parties are established and the retrial is ruled. If neither party is established, the retrial shall be rejected. Third, how to list the status of the parties in the application for retrial. If (I) parties or outsiders apply for retrial, they shall be listed as "retrial applicants"; if all parties apply for retrial, they shall be listed as "retrial applicants"; the respondent specified in the retrial application shall be listed as "respondent"; other parties in the original trial who have not filed an application for retrial or have not been listed as the respondent shall be listed according to their status in the first instance, the second instance and the appellant in the second instance "; in the case of a retrial application for a ruling of inadmissibility, only the applicant for retrial shall be listed. (II) the brackets after "retrial applicant" and "respondent" specify the litigation status of the parties in the first, second and retrial according to "plaintiff of first instance, counterclaim defendant (or defendant of first instance, counterclaim plaintiff), appellant of second instance (or appellee of second instance), original retrial applicant (or original respondent)"; If a civil application for retrial has been retried more than twice, the retrial litigation status in brackets is listed according to the litigation status of the parties in the last retrial. The retrial procedure is initiated by the people's procuratorate's protest or the people's court ex officio, and the retrial litigation status in brackets is listed according to "original complainant (or original respondent)"; If an outsider applies for a retrial, the "outsider" shall be listed in brackets ". If the name of the (III) party changes, the original name shall be indicated in brackets after the name. If the (IV) party is a natural person, the name, gender, nationality, date of birth, occupation, and address shall be listed; if the natural person's occupation is not clear, it may not be stated; if the party is a legal person or other organization, the name, residence, and legal representative or The name and position of the main person in charge. (V) the party is a natural person, the address is written as "residence: specific address". If the address stated in the application for retrial is inconsistent with the address stated in the effective referee or ID card, the address is written as "residence: address stated in the ID card, current residence: address stated in the application for retrial". If the party concerned is a legal person or other organization, the domicile shall be written as "domicile: the domicile stated in the business license". If the party's address or residence is located in the municipal district, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× city ×× district (specific address)"; if the party's address or residence is in a county under the jurisdiction of the city or a county-level city under the jurisdiction of the city, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× county (city) (specific address)", not prefecture-level city (city); if two or more parties have the same address, they should be stated separately and cannot be replaced by "the same address as above. The legal representative or principal person in charge of a (VI) legal person or other organization is written as "legal representative (or person in charge):×××, chairman (or factory director, director, etc.) of the company (or factory, village committee, etc.)". To sum up, there are strict requirements for the status of the parties applying for retrial. I hope you will pay more attention when writing the application for retrial, so as not to cause unnecessary trouble. </中华人民共和国婚姻法>
2022-04-24
24
2022-04
On the morning of April 24, 2022, Zhongcheng Qingtai Law Research Institute invited Professor Zhang Haiyan, doctoral supervisor of Shandong University Law School, as the first lecture expert of "Zhongcheng Qingtai Law Lecture Hall", to teach the basic principles and lawyer practice of the Civil Code-General Provisions. The lecture was conducted online and offline, and thousands of people watched the live broadcast of the lecture online. The lecture was presided over by lawyer Li Heng, president of Zhongcheng Qingtai Law Research Institute, and Geng Guoyu, director of Zhongcheng Qingtai (Jinan) Law Firm, delivered a speech first. Han Honggang, director of Zhongcheng Qingtai Law Firm, presented Professor Zhang Haiyan with the appointment letter of expert consultant of Zhongcheng Qingtai Law Research Institute. Lawyer Li Heng, Dean of Zhongcheng Qingtai Law Research Institute, donated books by Zhongcheng Qingtai lawyers such as "Being a Lawyer in This Life Without Regrets", "Construction Engineering Law-Legal System and Practical Skills (Third Edition)", "China Construction Engineering Construction Contract Law Complete Book (Second Edition)" and "Criminal Case Handling Manual (Second Series). Professor Zhang Haiyan takes the basic law and lawyer's practice of the Civil Code-General Provisions as the theme, and carefully interprets the General Provisions of the Civil Code and its judicial interpretation in three parts: panoramic sketch, basic concept and key content, and analyzes the case with case analysis theory and theory. Professor Zhang's lecture was well received by the participants, and everyone said that they benefited a lot and had a strong guiding role in the practice of lawyers. In order to improve the quality of public business training in Zhongcheng Qingtai Law Firm, Zhongcheng Qingtai Law Research Institute has launched a series of activities of "Zhongcheng Qingtai Law Lecture Hall" and will continuously and irregularly invite well-known professors and experts as keynote speakers to share the frontiers of law, expand legal horizons and answer difficult practical questions for all lawyers.
2022-04-24
23
2022-04
Brief description of the case Ms. Zhang and Mr. Li registered their marriage in 2008. Soon after the marriage, the two had a son. After marriage, Ms. Zhang assumed the responsibility of husband and son. Mr. Li was full of confidence when he saw the lovely child. He worked hard to start a business for his family and set up a company. Later, she could not resist the temptation to have feelings with the company's female accountant and maintained an improper relationship between men and women for a long time. After that, the female accountant gave birth to a son for her. Mr. Li is very happy to pay 1.88 million yuan twice (July 12, 2018, July 26, 2018) to buy a real estate for the female accountant. Now Ms. Zhang wants to sue Mr. Li for giving the joint property of husband and wife to others without his own consent during the marriage relationship, which is invalid, and claims that the female accountant should return the grant of 1.88 million yuan. Can Ms. Zhang's claim be supported by the court? Advice from counsel When the husband or wife makes an important decision on the disposal of the common property of the husband and wife not due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. The donation of common property by one of the spouses to another is a disposition of common property, which shall be null and void without the consent of the spouse. In this case, although the 1.88 million yuan disposed of by Mr. Li was paid from his personal bank account, the payment period was during the existence of the relationship with Ms. Zhang, and the 1.88 million yuan should be regarded as the joint property of Ms. Zhang and Mr. Li. If Ms. Zhang requests the court to confirm that the gift is invalid and requests the return of 1.88 million yuan, the court shall support it according to law. Judicial Viewpoint of the Supreme People's Court Although there are two different views of partial invalidity and total invalidity in reality, the act of giving the joint property to others without authorization by one of the spouses should be completely invalid. Partially invalid said One of the spouses gives a large amount of the joint property of the husband and wife to another without authorization, which obviously infringes the property rights and interests of the other party. The act of the gift should be found to be partially invalid, not completely invalid. Reason: The common property of the husband and wife includes both the husband's share and the wife's share, half of the property given to others is the share of one of the spouses, and the intention of one of the spouses to dispose of their own share should be true, and the other person can obtain half of the property rights. According to the general principle of common ownership stipulated in article 299 of the the People's Republic of China Civil Code, during the existence of the marriage relationship, the common property of the husband and wife shall be regarded as an indivisible whole, and the husband and wife shall have joint ownership of all the common property without any share, and the two parties cannot divide their personal shares in the common property. The equal right of husband and wife to dispose of the common property does not mean that each husband and wife has a half share of the common property. Only at the end of their joint relationship can the common property be divided and their respective shares determined. Therefore, the view that "half of the property given to others is the share of one of the spouses" cannot be established. All invalid said During the existence of the marital relationship, both husband and wife have equal rights to the common property, and either party has the right to decide whether to dispose of the common property due to the needs of daily life. If an important decision is made on the disposition of the joint property of the husband and wife not due to the needs of daily life, the husband and wife shall consult on an equal footing and reach a consensus. According to the second paragraph of Article 1062 of the the People's Republic of China Civil Code, one of the spouses gives the common property to another person free of charge for the sake of daily life, which seriously damages the property rights and interests of the other party, which violates the principle of fairness in civil law, and such a gift shall be invalid. To sum up: the joint property of husband and wife is based on the provisions of the law, due to the existence of the relationship between husband and wife. In cases where the spouses do not choose another property system, the spouses share the common property in common, rather than in shares. It can be seen that, under a common relationship, the disposition of common property without the consent of all co-owners shall be null and void. Risk Alert In marriage and family, neither of the husband and wife should easily give the joint property of the husband and wife to the third party, and the third party should not accept the donated property at will. Because there is a risk that such a gift will be ineffective, as a recipient, it is likely that it will end up being just an empty joy. Article Link 1. Article 501 of the Civil Code of the people's Republic of China stipulates that the disposal of shared real or movable property and the major repair, change of nature or use of shared real or movable property shall be subject to the consent of the co-owners or all co-owners who account for more than 2/3 of the shares, unless otherwise agreed between the co-owners. 2. Article 299 of the Civil Code of the People's Republic of China stipulates that the co-owners have joint ownership of the real or movable property in common. The second paragraph of Article 1062 of the the People's Republic of China Civil Code stipulates that husband and wife have equal rights to deal with common property.
2022-04-23
22
2022-04
As one of the most common economic contracts, the contract of sale was affected in many ways during the new crown epidemic. Especially for production and processing enterprises, in terms of raw material procurement, they may face the problems of not being able to purchase sufficient production necessities in time, the price of raw materials has risen sharply, and the production cost has increased significantly, which will cause profits to be compressed or even losses; in terms of sales, Because of the epidemic prevention and control measures in different regions, some product sales, overstock, and price drops, there may also be delays in delivery, failure to do so, or rejection of the other enterprise in breach of contract. This paper only analyzes the determination of force majeure involved in the purchase and sale of production and processing enterprises and makes suggestions on the operation of the legal level. The determination of the force majeure clause under the new crown outbreak in 1.. Since the New Crown epidemic in 2020, discussions have continued about the impact of the New Crown epidemic and force majeure on contract performance. The author believes that the epidemic is not necessarily equivalent to force majeure, the contract under the epidemic, whether it should be performed normally, or the application of the principle of change of circumstances to be changed, or belong to force majeure to be exempted or lifted, need to be defined in the light of the specific circumstances. Here, the author through the positive and negative two cases to briefly explain: Case one In general, unless expressly agreed in the contract, a shortage of raw materials is usually not a case of force majeure claimed by the seller because the seller should have other channels to ensure an adequate supply of raw materials. However, in the context of the new crown epidemic, the cause of the shortage of raw materials may be considered force majeure if the seller has no access to raw materials for reasons other than its own. However, it can also be seen from this case that the impact of the epidemic on the supply of raw materials is claimed to be force majeure, and it needs to be proved that the supply of raw materials is single and indeed affected by the epidemic and there are difficulties in the supply of raw materials. The court will make a comprehensive judgment based on the seller's performance of the contract and the communication between the two parties. It is worth noting that when force majeure is used as a cause of termination, the contract can often be terminated only when the force majeure causes the contract to be completely unfulfilled and the purpose of the contract cannot be achieved. If the contract cannot be performed for a while, the contract can still be performed once the cause of force majeure disappears. At this time, unless one of the parties has evidence to prove that the time factor has an important influence on the realization of the purpose of the contract, the delay in performance will cause the purpose of the contract to be unable to be realized, otherwise it can only produce the effect of deferred performance, but cannot terminate the contract. Case II As can be seen from the above cases, force majeure as an exemption has the legal effect only of exempting matters and liability within the scope of force majeure. If force majeure and the debtor's conduct together constitute the cause of the damage, the liability for the loss shall be divided according to the principle of proportionality in the proportion of the effect of the two on the occurrence of the damage, and the defense of force majeure shall not be supported if it is based on the subjective reasons of the debtor and not affected by force majeure. In addition, there is a situation in which the contract of sale can continue to be performed, but because of the epidemic factors, resulting in the performance of the contract is obviously unfair, the seller can also claim a change of circumstances to request the court or arbitral tribunal to adjust the rights and obligations of the contract. In this regard, the Supreme People's Court issued<关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>The notice has clear provisions, the author will not repeat here. 2. legal operation suggestions (I) Clause Design The new crown epidemic has highlighted the importance of the formulation of force majeure clauses in contracts, and it is recommended that enterprises summarize and revise the force majeure clauses in contracts in a timely manner. The scope and consequences of force majeure can be agreed in the contract, and the risks that may be encountered can be considered and excluded in the force majeure clause, depending on the characteristics of the industry, the business model and the market involved. (II) timely notification When the new crown epidemic affects the performance of the contract, the enterprise shall promptly notify the other party, the content of the notice may include the claim of force majeure, the time, scope and extent of the impact of the epidemic, and what mitigation measures have been taken. It should be noted that the notification is not once and for all. The company should continue to notify the other party of the relevant situation at the corresponding time node, so that the other party can obtain the necessary time to take measures to reduce the loss, otherwise it will expand part of the loss and may still be liable. (III) fixed evidence Enterprises affected by the epidemic shall provide proof within a reasonable period of time, and even if the proof cannot be provided in a timely manner due to force majeure, they shall fix the evidence and provide proof as soon as possible within a reasonable time after the effect of force majeure has been reduced or disappeared. The scope of the form of proof is relatively broad, and the obligation to provide proof is not absolute in law, such as the closure of the city measures and the initiation of a local response and other important events, can be inquired through the relevant channels. It is recommended that enterprises pay attention to the retention of proof documents of force majeure (such as government notices, announcements, etc.), the sending records of notices, the other party's approval of force majeure and measures taken to reduce the impact of force majeure, the enterprise itself due to the impact of the epidemic and its prevention and control measures to stop production and sales or the sharp increase in operating costs and other evidence materials, in a dispute between the two parties in a timely manner to obtain lawyers, legal counsel and other professionals. (IV) positive impairment Enterprises should take timely mitigation measures after the epidemic situation leads to failure to perform or knows that the contract is affected by the epidemic situation, such as timely notifying the other party and related parties to suspend investment in people, money and materials, negotiating to change the delivery method, extending the delivery period, timely handling of vulnerable and consumable subject matter, etc., so as to prevent the loss of the other party and other related parties from expanding and avoid increasing their own responsibilities. (V) classification assessment 1. Comprehensively review the various types of contract documents that are being performed and comprehensively assess the impact of the epidemic, especially on its own ability to perform and the ability of the counterparty to perform. Assess whether to continue to perform, change or terminate the contract in the light of your own business needs and actual conditions, and avoid a one-size-fits-all approach. 2. For contracts to be signed in the near future, full consideration should be given to the performance of the contract by the epidemic and the control of the epidemic, including but not limited to the time of performance, the policy requirements of local governments, the development trend of the epidemic, the nature of the commodity, the purpose of the transaction, and the possible impact. 3. Taking into account the recurrence of the new crown epidemic, it is recommended that the contract signed after the new crown epidemic should clearly agree on the new crown epidemic and its prevention and control measures as force majeure and assess its impact and consequences, and if it is really impossible to assess, a reasonable exemption clause and a relatively flexible agreement change and termination clause should be set. Attachment: Excerpts from Legal Provisions and Guiding Opinions of the Supreme Court the People's Republic of China Civil Code Article 590: "If one of the parties is unable to perform the contract due to force majeure, it shall be exempted from liability in part or in whole according to the effect of force majeure, unless otherwise provided by law." Article 563: "The parties may terminate the contract under any of the following circumstances: (1) the purpose of the contract cannot be achieved due to force majeure". (I) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic 3. properly hear contract dispute cases in accordance with the law. Unless otherwise agreed by the parties, when applying the law, the impact of the epidemic on different regions, different industries and different cases shall be comprehensively considered to accurately grasp the causal relationship between the epidemic or the epidemic prevention and control measures and the failure to perform the contract, and the following rules shall be followed for handling the cases of contract disputes arising from the direct impact of the epidemic or the epidemic prevention and control measures: If the contract cannot be performed as a direct result of the (I) of an epidemic or epidemic prevention and control measures, the provisions of force majeure shall be applied in accordance with the law, and the liability shall be partially or fully exempted according to the extent of the impact of the epidemic or epidemic prevention and control measures. If the parties are responsible for the failure to perform the contract or the expansion of the loss, they shall bear the corresponding liability in accordance with the law. If the parties claim that they have fulfilled their obligation of timely notification due to the epidemic situation or the epidemic prevention and control measures cannot fulfill their contractual obligations, they shall bear the corresponding burden of proof. If the (II) epidemic or epidemic prevention and control measures only lead to difficulties in the performance of the contract, the parties may renegotiate; if they can continue to perform, the people's court shall effectively strengthen the mediation work and actively guide the parties to continue to perform. If the parties request to terminate the contract on the grounds that it is difficult to perform the contract, the people's court shall not support it. If the continued performance of the contract is obviously unfair to a party, and its request to change the period of performance of the contract, the method of performance, the amount of the price, etc., the people's court shall decide whether to support it in the light of the actual circumstances of the case. If, after the contract is changed in accordance with the law, the parties still claim partial or total exemption from liability, the people's court shall not support it. If the purpose of the contract cannot be achieved due to the epidemic or the epidemic prevention and control measures, the people's court shall support the request of the parties to terminate the contract. (II) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic Trial of (I) contract cases 1. If the epidemic or epidemic prevention and control measures cause the parties to fail to perform the contract of sale and purchase in accordance with the agreed time limit or the cost of performance increases, the continued performance does not affect the realization of the purpose of the contract, and the parties request the termination of the contract, the people's court shall not support it. If the epidemic situation or epidemic prevention and control measures cause the seller to fail to complete the order or deliver the goods within the agreed time limit, and the buyer's contract purpose cannot be realized by continuing to perform, and the buyer requests to terminate the contract and return the advance payment or deposit that has been paid, the people's court shall support it; if the buyer requests the seller to bear the liability for breach of contract, the people's court shall not support it. 2. If the sales contract can continue to be performed, but the epidemic situation or epidemic prevention and control measures lead to a significant increase in labor, raw materials, logistics and other performance costs, or lead to a substantial price reduction of products, and it is obviously unfair to one party to continue to perform the contract. If the adversely affected party requests to adjust the price, the people's court shall adjust the price according to the actual situation of the case and in accordance with the principle of fairness. If the epidemic or epidemic prevention and control measures cause the seller to fail to deliver in accordance with the agreed time limit, or cause the buyer to fail to pay in accordance with the agreed time limit, and the parties request to change the time limit for performance, the people's court shall, in the light of the actual situation of the case, change the time limit for performance in accordance with the principle of fairness. If the contract has been changed by adjusting the price, changing the time limit for performance, etc., and the parties request the other party to bear the liability for breach of contract, the people's court shall not support it.</关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>
2022-04-22
22
2022-04
The Status Quo and Negative Effects of 1. Impersonation Registration In recent years, in order to optimize the business environment in the market, the company registration authority has continued to promote the reform of the commercial system. The company registration mostly adopts a formal review system, allowing the shareholders of the company to not sign on the spot, but the entrusted agent to submit the materials on their behalf. The company registration authority will register when the submitted materials are complete and conform to the legal form. The simplification of the company registration system, coupled with the low cost of illegality and other reasons, has led to many cases of being falsely registered as company shareholders, legal representatives and senior executives, and the number of falsely registered cases is on the rise. In this regard, the impersonated person is prone to the following risks: (I) conflict with their real career If the impostor or his close relatives are public officials or engaged in other similar occupations, such personnel are often not allowed to work part-time in other companies. After they are falsely registered as shareholders, legal representatives, or senior executives of other companies, it will directly affect Appointment and removal of their positions. In view of the fact that most of the companies involved in the impostor registration are leather bag companies, if the company fails to make tax declaration according to law, the tax department will list the relevant personnel as abnormal personnel, which will directly lead to the restriction of the impostor's normal operation of the company or tax formalities. (II) creditors claim that shareholders are responsible for making up their capital contributions. Article 22 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "When the company's property is insufficient to pay off the debts, the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the establishment of the company If the company is jointly and severally liable for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law". (III) creditors claim liability for shareholder liquidation obligations Article 18 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "Shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in The company's property is devalued, lost, damaged or lost, and the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused. The people's court shall support according to law". Analysis on the Difficulties of 2. Solving the Impersonation Registration by Lawsuit In view of the problem of being falsely registered as shareholders, legal representatives and senior executives of the company, some of the impostors choose to take litigation to protect their rights, that is, 1. file a civil lawsuit and request the people's court to confirm that they do not have the qualification of shareholders, or 2. file an administrative lawsuit and request the people's court to cancel the registration administrative act of the company registration authority. If an impostor brings a civil lawsuit, that is, a lawsuit for confirmation of shareholder qualification is filed on the grounds that the intention is not true. Although the defendant cannot provide effective counter-evidence in this case, if the registered company is involved in external debts or other responsibilities, such lawsuits often involve the protection of the reasonable trust interests of bona fide third parties, and the impostor may still bear the corresponding responsibilities of shareholders or senior executives. In addition, even if the court decides that the impersonated person does not have the qualification of shareholder, the company registration authority can only make a change of registration, rather than cancel the registration, which also means that the impersonated person still has the legal qualification of shareholder before, and should still bear the corresponding legal consequences. If an administrative lawsuit is filed by an impostor, the administrative organ claims to cancel the registration on the grounds that the administrative organ has not fulfilled its duty of careful examination when handling the registration. When responding to a lawsuit, the company registration department often submits that it only conducts a formal review of the application materials, and the applicant has promised in writing that the application materials are true and valid. Therefore, unless there are extreme typical situations such as the company registration authority and its staff knowing that the identity of the applicant for registration is not true and submitting false identity information materials, the people's court usually finds that the company registration authority has fulfilled its duty of careful examination, and it is difficult to find the violation of the law and thus revoke the corresponding registration. 3. the way of non-litigation settlement of false registration. In order to solve such problems, the State Administration of Market Supervision and Administration issued the "Guiding Opinions on Revoking the Fraudulent Use of Other People's Identity Information to Obtain Company Registration" (Guo Shi Jian Xin [2019] No. 128) in June 2019. Since then, the Regulations on the Administration of Registration of the People's Republic of China Market Entities and its Implementation Rules, which came into effect on March 1, 2022, have made detailed provisions. (I) legal provisions Article 40 of the Regulations on the Registration of the People's Republic of China Market Entities Where the registration of market entities is obtained by submitting false materials or concealing important facts by other fraudulent means, natural persons, legal persons and other organizations affected by the registration of false market entities may apply to the registration authority for cancellation of the registration of market entities. After accepting the application, the registration authority shall promptly conduct an investigation. If the investigation determines that there is a false market subject registration, the registration authority shall cancel the market subject registration. If the relevant market subjects and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time and registration items of the relevant market subjects to the public through the national enterprise credit information publicity system, and the publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. The person directly responsible for the market subject whose registration has been canceled due to the false market subject registration shall not apply for the market subject registration again within 3 years from the date of cancellation of the market subject registration. The registration authority shall publicize it through the national enterprise credit information publicity system. Detailed Rules for the Implementation of the Regulations on the Administration of Registration of the People's Republic of China Market Entities Article 50 the registration authority may, on the basis of the application of the parties concerned or on its own initiative, investigate the acts suspected of submitting false materials or concealing important facts by other fraudulent means to obtain the registration of market entities. Article 51 Natural persons, legal persons and other organizations affected by false registration may apply to the registration authority for cancellation of the registration of market entities. For false registration suspected of fraudulent use of the identity of a natural person, the fraudulent user shall cooperate with the registration authority to verify the identity information through online or offline channels. If the registration authority of the market subject suspected of false registration is changed, the current registration authority shall be responsible for handling the cancellation of registration, and the original registration authority shall assist in the investigation. Article 52 After receiving the application, the registration authority shall make a decision on whether to accept the application within 3 working days and notify the applicant in writing. Under any of the following circumstances, the registration authority may reject the case: (I) false registration of suspected fraudulent use of the identity of a natural person, and the fraudulent use fails to pass the verification of identity information; (II) the market entity suspected of false registration has been canceled, except for the application for cancellation of registration; (III) other cases of inadmissibility according to law. Article 53 After accepting the application, the registration authority shall complete the investigation within three months and make a timely decision to revoke or not to revoke the registration of market entities. If the situation is complicated, it may be extended for 3 months with the approval of the person in charge of the registration authority. During the investigation period, if the relevant market entities and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time, registration items, and contact information of the registration authority of the suspected false registration market entity to the public through the national enterprise credit information publicity system. The publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. Article 56 After the registration authority has made a decision to cancel the registration, it shall publicize it to the public through the national enterprise credit information publicity system. (II) specific recommendations To sum up, the author suggests that after the relevant personnel are found to be falsely registered as shareholders, legal representatives and senior executives of the company, they should give priority to non-litigation to solve the relevant problems. According to the relevant laws and regulations, the author has sorted out the relevant operating procedures: 1. After discovering the fact of being falsely registered, the relevant personnel shall promptly report to the police and submit an application for revocation to the registration authority; 2. The registration authority shall verify the identity information of the impostor, and the impostor shall cooperate with the submission of handwriting identification report, alarm record and other evidence; 3. The registration authority conducts an investigation of the person under investigation, the relevant personnel of the company, the registration agent or the interested party; 4. The registration authority solicits opinions from relevant departments such as public security, taxation, finance, human resources and social security; 5. After 45 days of investigation and identification of relevant facts or publicity, the registration authority may revoke the registration of market entities.
2022-04-22
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
