Real estate perspective: can subcontractors, illegal subcontractors, and affiliated people claim to pay management fees to actual builders?

Presentation of 1. issues The management fee generally refers to the expenses incurred by the construction unit for the organization of construction production and management. In the general contract of construction project, no matter what kind of pricing model is adopted, the management fee is often included in the total cost of the project, and the contractor shall pay the management fee (enterprise management fee) to the general contractor according to the agreement of the general contract. In valid construction subcontracting contracts (professional subcontracting and labor subcontracting, etc.), there is basically no dispute that the general contractor charges a certain management fee to the subcontractor. On the contrary, in the case of subcontract, illegal subcontract and affiliated construction, the management fee agreed in the contract is often not the management fee in the project cost, but the "subcontract fee", "subcontract fee" or "affiliated fee", which belongs to the consideration paid by the actual construction to the subcontractor, illegal subcontractor or affiliated person (hereinafter referred to as "subcontractor" or "subcontractor") for the purpose of obtaining the project. In this case, how to deal with the subcontractor's claim for management fee to the actual builder? Or, how to deal with the claim of the actual builder's claim for the subcontractor to return the management fee deducted from the project payment? This paper intends to combine the judicial judgment point of view for analysis. 2. view of judicial adjudication On the proposition of whether subcontractors should be supported to collect management fees from actual constructors, there are roughly four views in judicial practice: first, subcontracting, illegal subcontracting and affiliation violate the mandatory provisions of laws and administrative regulations, and the contract is invalid. The management fees agreed in the contract belong to illegal income and do not fall within the scope of civil law adjustment, and should be collected or transferred to the administrative department for handling; Second, in the case of invalid contract, the management fee agreed in the contract has no factual basis. The claim of the subcontractor asking the actual builder to pay the management fee or directly deduct it from the project fund shall not be supported, and the paid or deducted shall be returned as unjust enrichment. Third, when the construction project is completed and accepted, although the contract is invalid, the project price shall still be paid (compensated) according to the contract. The management fee is part of the construction project price, so it shall be handled according to the agreement; fourth, if the subcontractor is involved in the actual construction of the project management, and paid a certain cost, rather than the subcontractor simply subcontracting for profit, should refer to the contract agreement. The specific views of the referee are as follows: The management fees agreed in (I) subcontracting, illegal subcontracting and affiliation contracts are illegal income, do not fall within the scope of adjustment of civil law, and should be collected or transferred to the administrative department for disposal. The early judgment, such as the Supreme Law (2014) Min Shen Zi No. 365, held: "In view of illegal subcontracting and illegal subcontracting in the process of project construction, we should strengthen the investigation and punishment, ensure the special funds for the project funds from the source, eliminate the hidden dangers of project quality caused by the interception of project funds at various levels, and ensure the quality and safety of the project. Therefore, the illegal issue of the South Henan Expressway Company's collection of rebates involved in this case should be dealt with by the relevant departments in accordance with the law." Subsequent judgments such as (2018) Supreme Law Minzhong No. 586 held that Article 4 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes stipulates that the contractor's illegal subcontracting or illegal subcontracting of construction projects or the act of an unqualified actual builder signing a construction contract with others in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with the provisions of Article 134 of the General Principles of the Civil Law, confiscate the illegal gains already obtained by the parties. Although the judgment did not directly collect the management fee agreed in the contract, it rejected the claim to pay the management fee on the grounds of lack of legal and factual basis. Another example is (2020) Supreme Law Civil Final No. 1008 that: the management fee agreed in the invalid contract the people's court should be forced to judge the amount. (2019) Supreme Law Civil Final No. 1752 holds that the management fee agreed in the invalid contract is the consideration exchanged between the two parties based on the qualification of the construction of the project, which does not meet the constituent elements of unjust enrichment. The above judgment point of view can be summarized as follows: the management fee in the invalid contract violates the mandatory provisions of the law, belongs to the illegal income, and does not belong to the scope of adjustment of the civil law. The attitude of the civil law is to let the "illegal expenses stay in place", which should be adjusted by the public law and should be collected or transferred to the administrative department. The claim for payment of management fees or the claim for return after payment is not supported. (II) the contract is invalid, the management fee agreed in the contract has no factual basis and should not be supported; For example, the Supreme Law Minzhong No. 576 held that the relationship between Huang Jianguo and Dongfang Company was a borrowing of qualifications, but the borrowing of qualifications in the field of construction projects violated the mandatory provisions of the law. The management fee agreed upon by both parties is actually the consideration paid by Huang Jianguo for borrowing the qualification. Dongfang Company's request to Huang Jianguo to pay the management fee according to 1.2 of the project price involved in the case lacks legal basis, and the court will not support it. Another example is (2020) Supreme People's Court No. 898: The Supreme People's Court held that Baye Company and Baye Xining Branch are professional construction enterprises, and there is obvious fault in subcontracting the project involved to individuals without corresponding construction qualifications. The Agreement signed by Baye Xining Branch and Li Mouchu is an invalid contract, and it cannot prove that it actually participated in the relevant management of project construction, its appeal request lacks basis and is not supported. When the (III) construction project is completed and accepted, the management fee shall be part of the construction project price, and although the contract is invalid, the project price shall still be paid (compensation) according to the contract agreement. For example, (2020) Supreme People's Court No. 860: The Supreme People's Court held that according to the agreement of the Subcontract signed between the military construction company and the basic company, the basic company is required to pay the management fee to the military construction company in accordance with a certain proportion of the project price, of which 2% is for small and high-rise buildings and 3% is for multi-storey buildings. Although the "subcontract" is invalid, the military construction company cooperates with the basic company in the allocation and settlement of funds and construction materials with the contractor, material suppliers, labor service units and other parties during the construction process, and arranges staff to participate in the on-site management of the project involved in the case. it is not improper to require the basic company to pay the management fee according to the original agreement, and the first instance judgment supports it. (IV), if the subcontractor participates in the project management of the actual construction person and pays a certain cost, instead of the subcontractor simply subcontracting for profit, it can be dealt with according to the contract agreement. For example (2021) Supreme Famin Shen No. 3986: The Supreme People's Court believes that the "Internal Contract Construction Agreement for Single Project" involved in the case stipulates that "Jiangsu Shuanglou Company shall charge 4.6% of the total settlement price of the project completed by Nanjing Jiuhuan Company (including the purchasing materials of the construction unit and Jiangsu Shuanglou Company) as the general contractor management fee". Therefore, Nanjing Jiuhuan Company is aware of the agreement between the two parties on the management fee, based on the invalidity of the "Internal Contract Construction Agreement for Single Project" involved in the case and the fact that Jiangsu Shuanglou Company has carried out corresponding management, the court of second instance decided that it was not obviously inappropriate for Nanjing Jiuhuan Company to bear 50% of the management fee involved in the case. Another example is (2020) Supreme People's Court No. 79: The Supreme People's Court held that regarding whether Jiang Junpeng should charge management fees and the proportion of management fees, Jiang Junpeng provided evidence to prove that he employed management personnel, organized meetings, coordinated up and down, and purchased insurance for the construction of the project involved in the case. Jiang Junpeng fulfilled his management obligations for the project involved in the case, and the court of first instance ruled that Wang Baozhen paid him a certain management fees, which was not inappropriate. Because Jiang Junpeng does not have the qualifications for construction and management of construction projects, the court of first instance held that the standard of 7% of the project cost charged by Jiang Junpeng in the internal contract was too high, and decided to reduce the management rate to 2%, which was not improper, and the court maintained it. 3. Supreme Court Judges Meeting Minutes View The minutes of the 7th Judges Meeting of the Second Circuit Court of the Supreme People's Court in 2020 offer three views on the treatment of agreed management fees after the invalidation of construction contracts (the following views are derived from the Minutes of the Judges Meeting of the Second Circuit Court of the Supreme People's Court (second series), published by the People's Court Press in April 2021): (I) said with reference to the contract When the construction project is completed and accepted, although the construction contract is invalid, the project price should still be paid by reference to the contract, and the "management fee" is an integral part of the construction project price, so it should be dealt with by reference to the agreement. If the subcontractor claims "management fee" to the actual builder, it shall be supported; if the actual builder requests the return of "management fee", it shall not be supported. (II) invalid return said The "management fee" stipulated in the contract under the circumstances of the title is illegal, and the relevant provisions in the contract are invalid, and the treatment of the invalid contract should be referred. If the subcontractor claims that the "management fee" should be deducted from the project price paid, it shall not be supported; if the actual builder claims to return the management fee "or the project price does not deduct the" management fee ", it shall be supported. (III) actual participation in management said In the case of the contract, the "management fee" is part of the price of the construction project, and some is the subcontracting profit of the subcontractor. For the former, if it is found that the subcontractor is actually involved in the construction management service, it can be dealt with by reference to the contract; for the latter, there is no question of returning the input at a discount because the subcontractor has not managed or actually paid. In the distribution of the consequences of the invalidity of the contract, the principle of good faith should be followed, and the parties who are not in good faith should not benefit from the invalidity of the contract. The judge's meeting took the actual participation in the management said: when the construction contract of the construction project is invalid due to illegal subcontracting, illegal subcontracting or affiliation, the treatment of the "management fee" charged by the subcontractor as agreed in the contract shall be judged according to the specific purpose of the contract in the light of the case. If the "management fee" is part of the project price, and the subcontractor also actually participates in the construction organization management coordination, can refer to the contract agreement to deal with; for the subcontractor purely through subcontracting for profit, did not actually participate in the construction organization management coordination, after the contract is invalid to claim "management fee", should not be supported. The parties to the contract shall not support the adjustment of the project price on the ground that the "management fee" as the contract price should be collected. Based on the relativity of the contract, non-contract parties cannot claim to adjust the amount of work to be paid by the agreement between the subcontractor and the subcontractor on the "management fee. 4. legal analysis In accordance with the provisions of laws, administrative regulations and judicial interpretations, the following legal analysis is carried out on whether the subcontractor can claim to pay the management fee to the actual builder, taking into account the rules of adjudication of cases in judicial practice and the opinion of the minutes of the meeting of judges of the Supreme Court: (I) in the case of fact-finding, the management fee agreed in the invalid contract is not an illegal gain. First of all, the meaning of "illegal act" in civil law is only a factual act (corresponding to legal act), "collection" or "transfer to the administrative department to deal with" belongs to the form of responsibility in public law, the fact of civil law can not be concluded in civil litigation to bear the responsibility of public law. The management fee in an invalid contract is an illegal income and should be collected. This view mostly stems from the provisions of Article 4 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of disputes over construction contracts of construction projects (no longer valid): "the people's court may, in accordance with Article 134 of the General principles of the Civil Law, confiscate the illegal gains that the parties have obtained." The (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, which came into effect in 2021, has abolished the above-mentioned provisions, the General Principles of Civil Law have become invalid, and there is no longer any expression in the Civil Code to collect illegal income. "Illegal income", "collection" and "transfer to administrative departments for handling" should fall within the scope of administrative law enforcement and should not be identified and enforced in civil disputes. The tasks of public law and private law are different, and the relationship of rights and obligations between equal subjects to be resolved by civil legal norms, for one of the subjects of civil litigation, the most unfavorable consequence for it is that its claim is not supported, and should not be borne by the way of public law liability. Secondly, subcontracting, illegal subcontracting and affiliation are illegal in public law, which is the need to maintain market order; in the field of private law, as a factual act, the purpose of litigation is to solve the problem of distribution of rights and interests among civil subjects, not to identify illegal gains. Even when the judicial interpretation stipulates that the illegal proceeds should be collected, few courts or administrative organs will collect them. Even if they decide to collect them, there is no enforcement procedure. The reason is that the purpose of legislation is to suppress illegal acts through the form of public law liability of "collection", but it ignores the boundary between public and private law, and finally distributes the management fees agreed in the invalid contract between the two parties to the contract for various reasons. Just as the construction contract for a construction project is invalid, but the actual builder can be compensated at a discount by reference to the contract actually performed on the price of the project. The actual builder has materialized the various costs into the construction project, and in accordance with the law, the treatment of invalid contracts should be "returned separately" in principle, but in the case of no return, compensation can only be made by reference to the contract. The field of construction engineering has its particularity. Even if there are public law violations such as subcontracting, illegal subcontracting, and affiliation, the cost of restoration cannot be restored to the original state or the cost of restoration is high when the project is completed and accepted. The project benefits are distributed among the cost payers, rather than the management fees agreed in the invalid contract as illegal gains. (II), in terms of the application of the law, the amount or proportion of the management fee shall be determined comprehensively according to the degree of participation and cost of the subcontractor in the construction process, with reference to the contract or the actual contractor's benefits. In the event that the contract is invalid, the key to determining whether the subcontractor can take the management fee is whether it actually participates in the management of the project, the degree of participation and the cost input. A combination of the facts of the case should be distinguished to determine whether the claim of management fee should be supported, which can be divided into the following three situations: First, the subcontractor actually participated in the management of the construction process such as project progress, safe and civilized construction, project quality, acceptance, etc., invested human resources, and incurred corresponding management costs. The cost is the "enterprise management fee" stipulated in the "Construction and Installation Project Cost Project Composition", which specifically includes management personnel wages, office expenses, travel and transportation expenses, fixed asset usage fees, tool usage fees, labor insurance and Employee welfare expenses, labor protection expenses, inspection and test expenses, labor union expenses, employee education expenses, property insurance expenses, financial expenses, taxes and others. The above-mentioned expenses together with the expenses such as "human resources machine" constitute the total cost of the construction project. According to the provisions of judicial interpretation, if the quality of the construction project is qualified, it shall be compensated at a discount according to the contract. Reference to the contractual agreement does not mean that the amount or proportion agreed upon in the invalid contract is the standard, but that the value of the results of labor materialized into the project is compared with the amount of the management fee agreed upon in the contract, and the referee adjusts and comprehensively determines the specific amount or proportion of the management fee according to the facts. Second, the subcontractor advocates that the management fee is not the enterprise management fee in the above-mentioned normative sense, but the external cost borne on behalf of the actual construction person. For example, during the construction process, fines due to the violations of the actual construction personnel, compensation for casualties due to safety accidents, and legal liabilities due to external disputes due to infringement. The subcontractor and the actual builder can agree on the sharing of the above-mentioned responsibilities, but there is a subcontractor in the external legal relationship and then unified management.

2022-03-09

The time is just as good as you | Zhongcheng Qingtai Jinan's "encounter fingertip elegance-pearl jewelry DIY" activity was successfully held

March is warm and the time is just right. On the occasion of the Goddess Festival, the Labor Union of Zhongcheng Qingtai Jinan Institute, together with the Women's Working Committee and the office, launched a "Elegance at Fingertips-Pearl Jewelry DIY" activity to go on a trip to create pearl art. The chairman of the labor union, Li Jian, sent holiday wishes to the women lawyers on the spot. Princess Diana once said, "If a woman can only own one piece of jewelry, it must be a pearl". After years of change, sand wash, a grain of ordinary gravel, in the body of the pearl clam into a bright and gorgeous treasure, round and warm, crystal clear, meaning transformation, elegant, pure. This activity specially invites professionals to share pearl jewelry making skills with lawyers participating in the activity. At the activity site, the professional teacher explained in detail the relevant knowledge of pearl jewelry maintenance. Under the teacher's patient guidance and explanation, everyone concentrated on prying mussels, digging beads, cleaning and polishing the pearls taken out by themselves, making unique ornaments and wearing them. The cheerful atmosphere on the site instantly pushed the activity to a climax. In this DIY activity, everyone puts emotion and ingenuity into the production process, shares their unique views on "beauty", relaxes their body and mind after busy work, and further enhances their sense of happiness, gain and ritual. Disperse pearl-like light at work.

2022-03-08

Interpretation of the essence of framing boundaries, Cheng law-abiding lawyers were invited to conduct special training on the general principles of the civil code and judicial interpretation for wave information.

On the morning of March 5, 2022, lawyer Cheng Law-abiding, deputy director and senior partner of Zhongcheng Qingtai (Jinan) Law Firm, was invited to carry out a special lecture on "interpreting the essence of the Civil Code and defining the boundary between work and life" for Inspur Electronic Information Industry Co., Ltd. The lecture was conducted through a combination of online and offline webex conferences. Inspur is one of the eight national safe and reliable computer information system integration key enterprises in the country. The independently developed China's first key application host Inspur K1 makes China the third country to master the core technology of high-end servers after the United States and Japan. Inspur server sales The world 3. the first in China. In the development process, Inspur pays more and more attention to the support and guidance of law in the development of enterprises. Focusing on the general provisions of the civil code and combining with the latest judicial interpretation, lawyer cheng law-abiding introduced the substantive amendments and new contents of the civil code. through a large number of specific and vivid practical case studies, he transformed the legal concepts such as civil subject, meaning expression, guardianship agency, legal person classification and liability into easy-to-understand language, and taught a profound and simple legal course for the participants. At the same time, lawyer Cheng Shou-fu combined with the characteristics of high-tech enterprises of wave information, interacted with the participants and put forward reasonable suggestions on the legal risks in the operation of the enterprise. This lecture enabled the employees of the company to have a deeper understanding and understanding of the Civil Code, and improved the legal literacy of the relevant personnel of Langchao Information. At the same time, it also enabled Zhongcheng Qingtai to establish a closer relationship with Langchao Information, which is the next step for both parties. The cooperation has laid a good foundation.

2022-03-07

Mineral Legal Perspective | Lawyer's Perspective Concerned about the Ecological Restoration of Mines in Shandong Province

In order to standardize the ecological restoration work of mines and improve the ecological restoration capacity of land and space, the Department of natural resources of Shandong Province, the development and Reform Commission of Shandong Province, the Department of finance of Shandong Province, the Department of ecological environment of Shandong Province, the Department of water resources of Shandong Province, the Department of agriculture and rural areas of Shandong Province, the Department of emergency response of Shandong Province and the Energy Bureau of Shandong Province have studied and formulated the implementation management measures for mine ecological restoration, now let us learn about the ecological restoration of mines in Shandong Province, which are worthy of attention: 1. what is mine ecological restoration? Mine ecological restoration refers to the ecological restoration of historical mines and production mines. According to the principle of balanced population, resources and environment, and unified economic, social and ecological benefits, systematic restoration and comprehensive management are implemented on the basis of scientific evaluation, so as to promote the comprehensive utilization and protection of various natural resources, and realize the optimization and improvement of production, life and ecological functions. A mine left over from history is a mine where it is not possible to determine the person responsible for the repair or the person responsible for the loss due to the loss of mining rights or policy closure. Production mines refer to mines in which mining enterprises have obtained mining rights in accordance with the law and are implementing infrastructure construction or organizing production. 2. mine ecological restoration should meet what requirements? Mine ecological restoration activities shall meet the requirements: (1) to conform to the territorial space planning; (2) to comply with the land space ecological restoration planning and related special planning; (3) To meet the requirements of "three lines and one order" ecological environment zoning control; (4) in strict accordance with the green mine construction norms; (5) To comply with the technical requirements and standards for ecological restoration. Principles to be Followed in Ecological Restoration of 3. Mines (I) ecological priority, security. Adhere to the policy of giving priority to ecology, conservation, protection and natural restoration, taking into account ecological, social and economic benefits. In accordance with the order of ensuring safety, restoring ecology, and taking into account the landscape, overall protection, system restoration, and comprehensive management will improve the quality and stability of the ecosystem. (II) highlight the key points and promote as a whole. Coordinate the current situation of mine land space, the suitability of future land space and the needs of industrial development, and simultaneously promote the ecological restoration of historical mines and production mines. Priority should be given to solving the outstanding problems in the ecological restoration of historical mines within the visual scope of the "three districts and two lines", such as many historical debts, large potential safety hazards, poor landscape image, and single source of funds. (III) government-led, market-operated. Give full play to the leading role of the government, strengthen policy guidance and incentives, and stimulate the vitality of market players. According to the principle of "who invests, who benefits" and "who destroys, who repairs", social capital is encouraged to participate in mine ecological restoration and management by means of marketization. According to the "Opinions of the General Office of the State Council on Encouraging and Supporting Social Capital to Participate in Ecological Protection and Restoration" (No. 40 [2021] of the State Council) issued by the General Office of the State Council, it is also to encourage and support social capital to participate in ecological protection and restoration projects. The ways of participation include: 1. independent investment mode. Social capital alone or in the form of consortia, industrial alliances and other forms of funding to carry out ecological protection and restoration. 2. Mode of cooperation with the government. Social capital may set up funds in accordance with the principle of marketization to invest in ecological protection and restoration projects. For projects with stable operating income, models such as government and social capital cooperation (PPP) can be adopted, and local governments can support social capital to obtain reasonable returns through investment subsidies, operating subsidies, and capital injections as required. 3. Public participation model. Encourage public welfare organizations and individuals to cooperate with the government and its departments to participate in ecological protection and restoration and jointly build ecological civilization. (IV) according to local conditions, precise policy. Implement the requirements of land and space planning control and use control, accurately grasp the characteristics of mines and surrounding environment, combine local economic and social development, resource endowment, ecological environment, etc., based on the integrity of the ecosystem, through conservation and protection, natural restoration, auxiliary restoration, and ecological remodeling, Resource development and other methods, adjust and optimize the layout, structure and function of land space, and promote the improvement of natural recovery capabilities. 4. which subjects can participate in mine ecological restoration? (1) Government functional departments All levels of development and reform, public security, finance, natural resources, ecological environment, water conservancy, agriculture and rural areas, emergency management and other departments in accordance with their respective responsibilities, coordinated to promote the ecological restoration of mines. (2) Government financing platforms and social capital Encourage government investment and financing platforms to cooperate with social capital to participate in mine ecological restoration activities. (3) Mining enterprises and social investment entities Support mining enterprises and social investment entities to use market-oriented methods to obtain foreign government low-interest loans, bank green financial loans, government guidance funds and other funds to carry out mine ecological restoration within the scope of laws, regulations and financial policies. What is the investigation of the ecological status of 5. mines? 1. The competent department of natural resources at the county level shall make use of the results of the geological environment survey of mines, combined with the results of the third land survey, the annual land change survey and the registration and certification of land rights, to organize the investigation of the ecological status of mines left over from history and production mines in the area under its jurisdiction. 2. The investigation of mine ecological status mainly includes:(1) the basic situation of the mine. Geographical location, regional area, current land type, land ownership, ore type, remaining resources, residual soil and stone, etc. of the mine. (2) mine ecological situation. The current situation of topography and landscape, the development and utilization of natural resources such as land, minerals, forest and grass, and the damage of resources such as land, forest and grass vegetation. (3) Other contents stipulated by the state and the province. 3. According to the survey results of the mine ecological status, the county-level natural resources department shall establish a background account, incorporate it into the ecological restoration management information system, and update it in real time. What are the responsibilities of 6. mining enterprises for the ecological restoration of production mines? In addition to the overall plan for mine ecological restoration formulated by the competent department of natural resources for mine geological environment investigation, there are relevant regulations for the ecological restoration of historical mines and the ecological restoration of production mines. This paper focuses on the ecological restoration of production mines: 1. Ecological restoration of new mines Mining enterprises in newly-built mines should take into account the ecological conditions around the mine, natural landscape, living environment, village location, industrial layout and other factors, combined with the actual needs of safe production and ecological restoration and landscape reconstruction in the later period of the mine, scientifically and rationally formulate development and utilization plans, mine geological environment protection and land reclamation plans. The preparation of mine geological environment protection and land reclamation plan shall comply with relevant national laws and regulations, the overall mine ecological restoration plan and other relevant requirements. 2. Abandoned mines with mining conditions For the abandoned mines formed in history, which cannot implement ecological restoration measures due to high and steep slopes, deep pits and other reasons, and still have mining conditions, under the premise of conforming to the planning and conducive to the improvement of the ecological environment, it is necessary to re-set mining rights in accordance with relevant regulations. After slope treatment, if it meets the requirements of ecological restoration conditions, in addition to the preparation of mine geological environment protection and land reclamation plans, formulate an annual mining and mine geological environment restoration and governance plan, clarify the annual mining area, mining volume, governance measures, governance scope, governance effect, etc., and report to the county-level natural resources authority for approval. The competent departments of natural resources at the county level should strengthen supervision, and those who fail to implement the plan should be ordered to make rectification within a time limit, and the implementation can continue only after the rectification is in place. 3, mining enterprises should implement the "side mining, side management, side repair" principle. Mining enterprises should strictly implement the mine geological environment protection and land reclamation plan, strictly implement the green mine construction standards, and strictly perform the mine geological environment protection and land reclamation obligations in accordance with the principle of "mining, governance, and restoration" to ensure ecological restoration Work is carried out simultaneously with mineral resources mining activities. During the process of restoration and leveling, dust pollution shall be well controlled to ensure that there is no obvious visible dust in the mining area. If the mining right owner temporarily stops production, he shall take necessary measures to reduce the disturbance to the ecosystem. 4, mining enterprises "closed before the pit" must complete the task of repair The mining right owner shall, in accordance with the overall deployment of the mine geological environment protection and land reclamation plan and the annual mine ecological restoration plan, carry out the mine ecological restoration work, set aside the mine geological environment management and restoration fund, and carry out the mine ecological protection and restoration work year by year. When the mine is closed, the ecological protection and restoration task of the whole mine must be completed. If the mine is closed or closed before the expiration of the mining right transfer period, the mining right owner shall comprehensively carry out the ecological restoration of the mine. Among them, for mines closed due to policy, the people's government at the county level should clarify the main body of responsibility for mine ecological protection and restoration and determine the time limit for governance. If the ecological restoration responsibility is still performed by the original enterprise, the natural resources department at the county level where the mine is located shall supervise the original enterprise to complete the restoration task on schedule and carry out acceptance in accordance with relevant regulations. When providing legal services for mining enterprises, lawyers should focus on the ecological restoration of production mines to prompt mining enterprises to pay attention to avoid legal risks in the ecological restoration of production mines and bear legal responsibilities.

2022-03-07

Viewpoint... The nature of overdue interest in financial lease contracts and the analysis of judicial application rules.

Foreword In a financial lease contract, for the sake of safeguarding the performance of the contract and safeguarding its own interests, the lessor, in addition to establishing a performance bond clause in the contract, usually agrees that the lessee shall bear the obligation to pay overdue interest and/or liquidated damages in the event of a breach of contract, such as late payment of rent. The lessee should pay the corresponding overdue interest when defaulting is not too controversial, but how to determine the nature of the overdue interest, overdue interest and liquidated damages jointly claimed the interest rate ceiling standard, the current theory and judicial practice are controversial. Determination of the Nature of Overdue Interest in 1. Financial Leasing Contracts Regarding the nature of overdue interest in financial lease contracts, there are mainly two theories in academic circles-"the calculation method of damages" and "the theory of liquidated damages". The "theory of calculation method of damages" is based on a clear distinction between agreed damages and agreed liquidated damages, and holds that the two cannot be confused. The theory holds that agreed damages need to be based on the occurrence of losses. In addition, some scholars in this theory believe that if the parties to a financial lease contract agree on overdue interest and overdue payment liquidated damages at the same time, the adjudication body should inform the parties to make a choice. The "liquidated damages" is that the liquidated damages clause and the calculation clause of damages are often difficult to distinguish in practice, and the overdue interest calculation clause can be characterized as the liquidated damages clause to obtain the opportunity of judicial adjustment, which is more conducive to balancing the interests of both parties, so there is no need to distinguish. By searching the relevant cases, it can be found that judicial practice is more inclined to "liquidated damages", that is, the court usually determines the overdue interest clause as the nature of liquidated damages, and according to the actual situation of the case, with reference to a certain interest rate standard to the parties to claim the overdue interest, liquidated damages unified adjustment. Although there are disputes on the nature of overdue interest in financial leasing contracts in academic circles and judicial practice, according to Article 9 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Financial Leasing Contract Disputes (hereinafter referred to as the Judicial Interpretation of Financial Leasing), "The lessee is late in fulfilling the obligation to pay rent or other payment obligations, and the lessor requires the lessee to pay overdue interest and corresponding liquidated damages in accordance with the agreement of the financial leasing contract, the people's court shall support the provision that, regardless of the nature of the overdue interest in the financial lease contract, in the event of a breach of contract such as late payment of rent by the lessee, the lessor shall have the right to claim both overdue interest and liquidated damages in accordance with the contract. The judicial applicable rules of overdue interest in 2. financial lease contracts. As mentioned above, with regard to the application of overdue interest in financial leasing contracts, the judicial interpretation of financial leasing clearly stipulates that overdue interest can be claimed at the same time as liquidated damages, but the upper limit and applicable standards of overdue interest and liquidated damages are not clearly stipulated in the relevant laws and regulations of our country, so there are different understandings in judicial practice, and the court's judgments are also different (take the following three judgments as examples). [Case 1]:(2021) Supreme People's Court No. 458 The court of first instance held that: regarding the delayed interest, according to Article 19.1 of the Financial Lease Contract, if Jiuda Salt Making Company fails to pay the rent and other payables to Wanjiang Leasing Company as agreed in this contract, Jiuda Salt Making Company shall pay the delayed interest to Wanjiang Leasing Company at 5/10000 per day on the overdue amount from the payment date, and the interest agreement does not violate the legal provisions, based on this, Wanjiang Leasing Company argued that Jiu Da Salt Company should pay the delayed interest to be supported by the court of first instance. The court of second instance held that Article 19.1 of the "Financial Leasing Contract" signed by Jiu Da Salt Company and Wanjiang Leasing Company stipulated that from the content, the two parties clearly agreed in this article as "deferred interest". The essence of the delayed interest is the overdue interest that the lessee shall pay to the lessor in respect of the overdue rent if the lessee fails to pay the rent within the prescribed time limit. According to the Interpretation of the Supreme People's Court on the Legal Issues Applicable to the Trial of Financial Lease Contracts (Fa Shi [2014] No. 3), Article 20 stipulates that "if the lessee fails to pay rent or delays in other payment obligations, and the lessor requires the lessee to pay overdue interest and corresponding liquidated damages in accordance with the provisions of the financial lease contract, the people's court shall support it". Overdue interest and liquidated damages are not equivalent, therefore, the claim that the delay interest agreed by the two parties is the liquidated damages cannot be established. Jiu Da Salt Company claims that the two sides agreed to the five-tenths-of-a-day delay interest calculation standard is too high, the delay interest is too high than the actual losses suffered by Wanjiang Leasing Company, but the five-tenths-of-a-day can be converted into an annual interest rate of about 18%, even with reference to the relevant judicial interpretation of private lending, it does not exceed the legal limit. On the other hand, Jiuda Salt Company argued that the delayed interest was excessively higher than the actual loss, but did not submit evidence to prove the amount of the actual loss and how it was "excessively higher", so its claim could not be established. [Case 2]:(2021) Beijing Financial Court, No. 689, Beijing 74 Min Zhong The court of first instance held that with regard to liquidated damages, the contract agreed liquidated damages = 3% of the remaining lease principal, and the current lessee constituted a breach of contract. China Construction Investment Company's request to pay liquidated damages of 72335.99 yuan was in line with the contract and legal provisions, and the court supported it. For overdue interest, considering that China Construction Investment Company has already collected the lease interest during the financing period according to the annual interest rate of 5.7, and then calculated the liquidated damages based on the total rent, that is, compound interest is charged for the interest. The standard is too high, and both liquidated damages and interest are liable for breach of contract in nature. Considering the relevant circumstances, our hospital adjusted the interest item to take the 12th rental principal of 2411199.75 yuan as the base, according to the standard of 5/10000, calculated from January 29, 2021 to the date of actual liquidation. The court of second instance held that: first of all, this case is a dispute over a financial lease contract, not a dispute over private lending, and this case should not be adjusted by the provisions of the Supreme people's Court on several issues concerning the Application of Law in the trial of Private Lending cases, which stipulates that the interest rate agreed in the contract exceeds four times the quoted interest rate in the one-year loan market at the time of the establishment of the contract. Secondly, the existing laws and regulations do not explicitly limit the interest rate ceiling of the financial lease contract. Even if the interest rate ceiling agreed in the financial lease contract should refer to the standard of four times the quoted interest rate of the one-year loan market or 24% of the annual interest rate, the ceiling should be the interest rate of the comprehensive capital cost of the capital user during the period of full capital use. In this case, the overdue interest stipulated in the contract has the nature of liquidated damages, the overdue interest is calculated on the basis of unpaid rent and the period of overdue payment is the calculation period, and the calculation standard of overdue interest is not decisive for measuring whether the interest rate of the comprehensive cost of capital is too high. The court of first instance has lowered the contractual overdue interest calculation base and interest rate, respectively, as appropriate. The Court held that although Hengtong Juice Company believed that the calculation standard of overdue interest was still too high, the legal basis for its claim to continue to adjust overdue interest was insufficient, and the adjustment of the calculation method of overdue interest by the court of first instance had made the amount of overdue interest within a reasonable range and should be maintained. [Case 3]:(2021) Lu 01 Min Zhong No. 8766, Jinan Intermediate People's Court, Shandong Province The court of first instance held that with regard to Huitong Company's request for Pan Zhongren's liquidated damages, according to Article 20 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Disputes over Financial Lease Contracts, the people's court shall support the provision that "if the lessee fails to pay rent or delays in other payment obligations, and the lessor requires the lessee to pay overdue interest and corresponding liquidated damages in accordance with the provisions of the financial lease contract, although Huitong Company may require Pan Zhongren to pay overdue interest and liquidated damages at the same time, the sum of the overdue interest and liquidated damages requested by Huitong Company shall not exceed the overdue interest calculated at the annual interest rate of 24% based on the outstanding rent due. Huitong Company now advocates a liquidated damages calculated at 4 times the quoted market interest rate, which is supported by the court of first instance. The court of second instance held that the question of whether the sum of liquidated damages and delayed performance should be capped should be limited. Financial leasing is a typical financing method with financial attributes. Financial leasing companies are under the supervision of the China Banking and Insurance Regulatory Commission. According to the requirements of my country's financial services to the real economy and reducing the financing costs of the real economy, the lease rate of return should be limited by the upper limit of the financial lending interest rate. Based on the total amount of financing, the total amount of rent, liquidated damages and delayed performance payments cannot exceed 24% of the annual interest rate. Due to the lack of clear legal provisions, the measurement standards of different regional courts are not completely uniform on the issue of the upper limit of the sum of overdue interest and liquidated damages. The Reply of the Supreme People's Court on the Scope of Application of the Judicial Interpretation of New Private Lending specifies that the disputes caused by financial leasing companies engaged in relevant financial businesses are not applicable to the judicial interpretation of new private lending. However, judging from the retrieved cases, in judicial practice, the court tends to take the annual interest rate of 24% as the upper limit to determine whether the sum of overdue interest and liquidated damages is reasonable or to reduce or adjust it at 24%, some other courts determine the interest rate cap by considering the financial lease contract and performance. 3. Summary At present, there are still different views on the nature of overdue interest in judicial practice. Some people think that overdue interest has the nature of "damages", and the "damages" should be based on the occurrence of losses and should not be excessively higher than the actual losses. Tracing the origin of such different views, it is not difficult to find that most of them are due to different understandings of the content of the contract itself, and there is a dispute over whether the overdue interest is "the purpose of punishing the breach of contract" or "the purpose of filling the loss. In view of this, it is suggested that in the agreement of the corresponding provisions of the financial lease contract, the expression of this part should not be simply summarized as "if the loss caused by the breach of contract, the payment of interest...", but should be as detailed as possible the purpose and application of the establishment of the "deferred interest. For example, the statement in Case 1 "If Jiuda Salt Company fails to pay rent and other payables to Wanjiang Leasing Company as agreed in this contract, Jiuda Salt Company shall pay deferred interest to Wanjiang Leasing Company on the overdue amount of 5/10000 per day from the date of payment". In addition, since the existing laws and regulations do not explicitly limit the upper limit of interest rate of financial leasing contracts, the theoretical and practical disputes of "adjustment is not adjusted and how to adjust" have arisen. Whether the principle of discretionary reduction of liquidated damages can be applied when overdue interest and liquidated damages are filed together, and how to make discretionary adjustment, the considerations during adjustment, whether the discretionary adjustment conforms to the original intention of relevant legislation and the principle of fairness, etc, at this stage, it is still a problem that needs to be explored in judicial practice, and it is still necessary to pass legislative provisions or unify the judgment standards to clarify the specific applicable rules.

2022-03-04

Mineral legal perspective | Lawyers focus on the issue of "net ore" transfer in Shandong Province

On May 1, 2020, the Ministry of Natural Resources issued the Opinions on Several Matters Concerning the Reform of Mineral Resources Management (Trial) (Natural Resources Regulation No. 2019) (hereinafter referred to as the "Opinions"). In order to guide the "net ore" transfer of mineral resources in Shandong Province and clarify the working procedures of "net ore" transfer, in accordance with the relevant provisions such as the opinions of the Ministry of Natural Resources on promoting the Reform of Mineral Resources Management (for trial implementation) and the Circular of Shandong Provincial Department of Natural Resources on promoting the Reform of Mineral Resources Management, combined with the actual situation of Shandong Province, Shandong Provincial Department of Natural Resources on December 9, 2021, formulate the "Guiding Opinions on the Transfer of" Net Mines "in Shandong Province (Trial)", now let us understand the situation of the transfer of "net mines" in Shandong Province: What are the conditions for the transfer of "net ore" in Shandong Province in 1? According to the "Guiding Opinions on the Transfer of" Net Mines "in Shandong Province (Trial)" and other relevant policies and regulations, the conditions for the transfer of "net mines" in Shandong Province are: (I) conform to the territorial space planning; (II) in accordance with mineral resources planning; (III) in line with the relevant national and provincial industrial policies and the needs of economic and social development; The scope of (IV) transfer meets the requirements of land use, forest use and sea use; (V) mining rights to transfer the boundaries of the scope of accurate, clear ownership of mineral resources assets, no dispute; (VI) mining minerals meet the requirements of differentiated management of mining rights; The proceeds from the transfer of (VII) mining rights have been assessed; The geological reserves within the scope of (VIII) transfer have been identified, and the technical data required for the preparation of plans for the development and utilization of mineral resources, geological environment protection and land reclamation have been completed; Compensation for the land and its above-ground attachments, power facilities, roads and historical assets within the scope of (IX) transfer has been negotiated and disposed of in place; After the transfer of the (X) mining right, the transferee shall go through the registration of the mining right in accordance with the regulations. If it involves temporary occupation or permanent use of the land, it shall go through the examination and approval procedures in accordance with the law. After the relevant work is completed, it can enter the site to carry out the relevant infrastructure preparation work without affecting the mining activities; (11) Other circumstances that meet the conditions for the transfer of "net ore. What are the steps to 2. the "net mine" transfer? According to the "Guiding Opinions on the Transfer of" Net Mines "in Shandong Province (Trial)" and other relevant policies and regulations, the transfer of "net mines" in Shandong Province generally has the following steps: (I) work plan for assignment According to the transfer conditions, planning blocks and preliminary preparations determined by the mineral resources plan, the county-level natural resources department organizes relevant business departments to study and determine the scope of the mining area to be transferred, and solicit the ecological environment, transportation, water conservancy, forestry, emergency And other departments and the township government (sub-district office) where the transfer scope is located, formulate a "net mine" transfer work plan, and organize the implementation after being approved by the county-level people's government. Among them, the municipal "net ore" transfer work plan shall be studied, determined and implemented by the municipal department in charge of natural resources. Provincial "net mine" transfer work, the implementation of the "Shandong Provincial Department of Natural Resources Mining Rights Transfer Work Flow" provisions. (II) Site Survey In accordance with the "net ore" transfer work plan, the county-level natural resources department organizes relevant departments and the township (street) and villagers' representatives where the mining area is located to inspect the site, issue a survey report, and sign written opinions. The transfer of "net ore" at the provincial and municipal levels shall be carried out in conjunction with the competent departments of natural resources at the county level, and a site survey report shall be prepared. The main contents of the survey report include: 1. The scope of transfer; 2. The status of resources; 3. The setting of mining rights; 4. The status quo of land use, original facilities, roads, etc.; 5. Find out the location, land type, ownership and other conditions of the land and the attachments on the ground; 6. Verify the overlap of various protection areas such as ecological protection red lines, permanent basic farmland, urban development boundaries, nature reserves, drinking water source protection areas, national public welfare forests, and protection areas of immovable cultural relics. 7. Other situations that need to be explained. (III) Disposal Compensation Scheme In accordance with the clear division of responsibilities in the "net mine" transfer work plan, confirm with local rural collective economic organizations, farmers, and property owners of above-ground attachments, draw up a disposal compensation plan, and sign a compensation agreement after the mine location has been publicized without objection. Public transfer of (IV) organizations Through the public resources trading platform at or above the county level to the public transfer. The announcement of the transfer shall comply with the provisions of laws and regulations and shall not set exclusive conditions. (V) sign the contract of assignment The bidder shall sign the confirmation of the transaction as required within 3 working days after the end of the transaction. Within 5 working days after signing the transaction confirmation letter, the transferor shall publicize the transaction result to the public according to the release channel of the transfer announcement, and the publicity period shall not be less than 10 working days. The transfer contract can only be signed after the publicity has no objection. To sum up, Shandong Province clearly requires the improvement of land use procedures in accordance with laws and regulations in the "net mine" transfer work. If the conditions are met, the simultaneous handling of mining rights and construction land use rights can be explored. The transfer of mining rights still emphasizes the promotion of competitive transfer of mining rights, simplifying the approval procedures for mining rights, strengthening supervision and management during and after the event, and ensuring that the management of mineral resources is in place.

2022-03-01

Civil and commercial perspective... Can marriage property be returned?

Marriage Property Overview Marriage property generally refers to both men and women in love during the property. The property involved mainly includes voluntary gifts (including gifts from close relatives) and bride price. Voluntary gifts of property are generally recognized as gifts if they do not exceed the scope of daily interactions. When the relationship is terminated, the donor's request for return is generally not supported. If the parties request the return of the bride price paid in accordance with the custom, whether the return can not be generalized, but should be analyzed according to the specific situation. First of all, the property that one party voluntarily gives (including close relatives) to the other party is generally not returned. For the property that one party voluntarily gives to the other party during the love period and does not exceed the scope of daily communication, in the absence of evidence to the contrary, it will generally be regarded as a gift for the purpose of promoting feelings. According to article 657 of the the People's Republic of China Civil Code, "a gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift. If one party sues to ask the other party to return the donated property, the court will comprehensively consider the love relationship between the two parties, the size of the amount of property, human relations and other factors, presuming whether it is a gift, so as to deal with it in accordance with the relevant laws. If the gift during the love period is for the purpose of promoting the relationship, rather than for the purpose of concluding a marriage, if the party requests to revoke the gift and exercise the right of arbitrary revocation, the court will generally not revoke it if there is no legal right of revocation. Secondly, the question of whether the dowry paid in accordance with custom should be returned. In the case of bride price, which, according to custom, is paid for the purpose of concluding a marriage, is specifically provided for in the judicial interpretation of the the People's Republic of China Civil Code on marriage and family, which is now analyzed in the light of trial practice as follows: 1. If both men and women have not gone through the marriage registration procedures, and one party requests the return of the bride price, the people's court shall support it. 2. If the two parties go through the marriage registration procedures but do not live together, if one party requests the return of the bride price, the people's court shall support it. 3. If one party requests the return of the bride price if the payment before marriage causes difficulties in life, the people's court shall support it. 4. For those who have not gone through the marriage registration formalities but have lived together and given birth to children, it is not necessary to return the bride price. Whether to return the bride price and how much should be returned should be judged according to the specific circumstances of the case. In the trial practice, the common living conditions of both parties should be considered as appropriate, and the return request should be partially supported or not supported. How to identify "living together" should be combined with local customs, the place where the two sides live, whether their daily life is integrated, whether they help each other economically, whether they comfort each other spiritually, and whether they have formed a legal relationship of mutual support. At the same time, the following factors will also be referred to:(1) the length of time the two parties have lived together;(2) the reasons for not registering the marriage;(3) the amount of the bride price;(4) the actual use of the bride price:(5) the woman's pregnancy and childbirth;(6) the impact of the public announcement effect of engagement or living together on the social evaluation of the two parties;(7) local customs;(8) Other common affairs of both parties. The author thinks When dealing with such disputes between men and women and their relatives, it is important to distinguish whether it is a gift of general property or a bride price. For the property paid for the promotion of feelings, if it does not exceed the scope of daily human relations, in the absence of evidence to the contrary, the donor shall generally not ask the other party to return it. For the bride price, it is necessary to determine whether to return it and the specific amount to be returned, taking into account the provisions of Article 5 of the Judicial Interpretation of the the People's Republic of China Civil Code on Marriage and Family and the actual local situation. Relevant Articles 1. Article 157 of the the People's Republic of China Civil Code stipulates: "After a civil legal act is invalid, revoked or determined not to be effective, the property acquired by the perpetrator as a result of the act shall be returned. The party at fault shall compensate the other party for the losses suffered as a result; if all parties are at fault, they shall bear the corresponding responsibility. Where the law provides otherwise, it shall be in accordance with its provisions." Article 158 of the the People's Republic of China Civil Code states: "Civil juristic acts may be subject to conditions, except where, by their nature, they may not be. A civil law act with conditions for entry into force shall take effect when the conditions are fulfilled. A civil juristic act with a condition of discharge shall cease to be valid when the condition is fulfilled. 2. Article 5 of the Interpretation I of Marriage and Family stipulates: "If the parties request the return of the dowry paid in accordance with the custom, the people's court shall support it if it is found that it belongs to the following circumstances: (1) the two parties have not gone through the marriage registration formalities; the (II) parties have gone through the marriage registration procedures but have not lived together; (III) pre-marital payment and causing difficulties for the payer.

2022-03-01

Lawyers Ning Lei and Duan Shuwen were invited to attend the legal compliance exchange meeting of China Everbright Bank Jinan Branch.

On February 25, 2022, lawyers Ning Lei, Duan Shuwen and Zang Fuyu of Zhongcheng Qingtai (Jinan) Law Firm were invited to attend the legal compliance exchange meeting held by Jinan Branch of China Everbright Bank. More than 70 people including the main leaders of China Everbright Bank Jinan Branch and various regional branches and sub-branches, heads of various departments, and account managers participated in this exchange meeting through on-site and video connections. At the exchange meeting, lawyer Duan Shuwen took the four aspects of the company's guarantee rules, the rules of the bank's common guarantee system, the pledge of accounts receivable and the illegal granting of loans in financial business as the meeting point, combined with the "Minutes of the Nine People's Conference" and the "Supreme People's Court on the application of<中华人民共和国民法典>The "Explanation of the Guarantee System" and the relevant practical experience of the bank, interacted with the trainees on the guarantee system in banking practice by means of cases and illustrations, and put forward reasonable legal suggestions. This exchange also carried out the theme activity of "Party Branch of Shandong Zhongcheng Qingtai Law Firm-Party Branch of Legal Compliance Department of Jinan Branch of Everbright Bank". Lawyer Ning Lei conducted in-depth exchanges and detailed plans around the integration mechanism and work integration mechanism of Party building business of both parties and the head of Legal Compliance Department of Everbright Bank. This exchange activity made the bank staff have a deeper understanding and understanding of the guarantee system, and promoted the improvement of the legal literacy of the bank staff. At the same time, it also established a closer relationship between Zhongcheng Qingtai and Jinan Branch of China Everbright Bank. </中华人民共和国民法典>

2022-02-28

Gao Dehai, deputy director of Jinan Municipal Bureau of Commerce, and his party went to Zhongcheng Qingtai Jinan Institute to carry out the theme party day activity of "optimizing the business environment and rule of law publicity month"

On February 25, 2022, Gao Dehai, member of the party group and deputy director of Jinan Municipal Bureau of Commerce, Li Xiulin, deputy director of the Policy and Regulations Department, Wang Xiaowen, second-level researcher Niu Zhancai, fourth-level chief clerk Zuo Xinyao, and office worker Zhang Yu and his party went to Zhongcheng Qingtai Jinan Institute to investigate and study and carry out the "Theme Party Day" activity of optimizing the business environment. Director Geng Guoyu accompanied Deputy Director Gao Dehai and his party to visit the office environment of Zhongcheng Qingtai Jinan and introduced Zhongcheng Qingtai's performance honor, business scope and party building work. At the subsequent symposium, the two parties discussed issues such as expanding business cooperation, carrying out personnel training, implementing the policy of introducing business security and business stability, enhancing the sense of acquisition of market entities, and strengthening policy presentations. In the next step, Zhongcheng Qingtai lawyers will make use of their professional advantages to strengthen exchanges and interaction with the Bureau of Commerce, jointly explore the highlights of cooperation, and contribute to the optimization of the business environment.

2022-02-25

Civil and commercial perspective. Is it valid for the divorce agreement to give the house to the children?

Brief description of the case Zhang Ting and Li Jun want to divorce by agreement, and both parties want to agree in the divorce agreement to give the real estate jointly owned by the husband and wife to Li Zhe, the legitimate child. Because the property is a loan to buy, Zhang Ting voluntarily continue to repay the loan on a monthly basis. Zhang Ting Consulting: Is the agreement valid? Can it be revoked? If Li Jun does not cooperate with the transfer, how to remedy it? Lawyer Analysis The divorce agreement stipulates that the gift of the property to the children is valid. Since the property is the joint property of the husband and wife during the marriage, both parties have the right to agree in the divorce agreement to give the house to the legitimate child Li Zhe. In view of the fact that the house is a mortgage house, the mortgage loan will continue to be paid by Zhang Ting voluntarily on a monthly basis. When the house meets the transfer procedures, it is also feasible for both parties to assist Li Zhe in handling the registration procedures for the change of property rights of the house within a reasonable period of time. The content of the divorce agreement was written by one party in the marriage registration authority. Both parties have signed and agreed, and both parties did not coerce or cheat when signing the divorce agreement. The civil affairs authority reviewed the true meaning of the divorce agreement and filed it, and handled the divorce registration procedures for both parties. Therefore, the divorce agreement signed by both parties in the marriage registration authority regarding the gift of real estate to the legitimate child Li Zhe is legal and valid, and both parties shall perform according to the agreement. The couple cannot revoke the gift. First of all, the gift clause in the divorce agreement did not reach an agreement between the donor (Zhang Ting, Li Jun) and the donee (Li Zhe), and Li Zhe did not sign for confirmation, which is different from the gift in the traditional sense. Therefore, Zhang Ting and Li Jun do not enjoy the right of revocation. Secondly, the gift of real estate in the divorce agreement is not to the other party, but to the third party. It also includes the special relationship of dissolution of marriage. Therefore, it cannot be revoked. How to realize their rights if one or both parties fail to perform this agreement If one or both parties do not perform the agreement, Li Zhe can sue to the court to request both parties to assist in the transfer of the house involved in the case. The court usually supports the claim. Supreme Court Judicial Views In practice, sometimes after the signing of the divorce agreement, one party goes back on his word and refuses to deliver the gift house agreed in the divorce agreement. In this regard, the donor's reason is often to claim that the gift can be unconditionally revoked. This view of the donor is incorrect. The reason is that the agreement on the house gift in the divorce agreement does not constitute a gift contract in the general sense. The premise of the contract of gift is that the donor gives his property to the donee free of charge without requiring the donee to pay for it or assume any obligation. In practice, it is rare for the recipient to confirm the acceptance of the gift in the divorce agreement. In other words, the so-called gift in the divorce agreement does not reach an agreement between the donor and the donee and does not constitute a gift contract. Since it does not constitute a contract of gift, there is generally no possibility of the donor being revoked under the Civil Code. At the same time, the gift is an obligation that the giver promises to perform in exchange for the other party's consent to the divorce by agreement. The special feature of this obligation is that the donor's obligation to pay the house is not performed to the opposite party of the divorce agreement, but to the third party outside the contract as agreed. Since the prerequisite for divorce registration by the marriage registration authority is that both parties agree on the maintenance of children and the division of property, the party eager to divorce may make certain concessions on the division of property in the divorce agreement. The main obligation of both parties in this type of divorce agreement is that the opposite party cooperates with the divorcing party to handle the divorce by agreement, and both parties deliver the house to the third party as the giver. In the case where the opposite party has agreed to dissolve the marriage relationship with the requesting divorce party, the requesting divorce party as the donor shall also perform the obligation to pay the house as agreed. If the donor does not perform this obligation, the donee has the right to request the court to order him to perform the obligation to deliver the house. China is moving towards the rule of law, the signing and implementation of divorce agreements should implement the principle of good faith. For those parties who did not intend to implement the agreement when signing the agreement, especially those who used substantial concessions on the division of property in exchange for the other party to quickly agree to divorce, but went back on their word after achieving the purpose of divorce, and did not intend to seriously implement the agreement when the divorce agreement was signed, they must not be supported. Relevant Articles 1. Article 10176 of the the People's Republic of China Civil Code stipulates that if both husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration authority in person. The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt handling. 2. Paragraph 2 of Article 69 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code: The provisions on property and debt handling in the divorce agreement signed by the parties in accordance with Article 1076 of the Civil Code are legally binding on both men and women. If a lawsuit is brought by a party due to a dispute over the performance of the above-mentioned agreement after the divorce is registered, the people's court shall accept it. 3. Article 657 of the the People's Republic of China Civil Code: "A gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift".

2022-02-24