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2021-12
Zhongcheng Qingtai Lawyers Participate in Community Activities to Prevent Internet Financial Fraud
On the morning of December 12, 2021, in order to raise the legal awareness of the masses and effectively prevent the risks of financial and various types of online fraud, under the leadership of the United Front Work Department of the Central District Committee of Jinan City and the Shandong Provincial Committee of the Peasants and Workers Party, Zhongcheng Qingtai (Jinan) Law Firm, together with medical experts from Shandong Financial Assets Trading Center Co., Ltd., Shandong Hemei Psychological Counseling Service Co., Ltd. and Shandong Provincial Hospital in Shunhua Community, caring for the mental health of the masses "into the community activities. Yu Cuilan, director of the Financial Investment Department of Zhongcheng Qingtai (Jinan) Law Firm, Zhao Zhigang, deputy director, lawyers Zhang Shugang, Liu Baoxi, Zhang Hao and Ge Xiaowei, legal assistants Ni Xiaojie, Chen Xiuyu and Han Xiexi participated in the activity. In the course of the activity, the lawyers deeply answered various legal questions raised by the community, combined with practical experience and vivid cases, publicized to everyone the concealment and harmfulness of network and financial fraud in the current society, and put forward effective prevention suggestions, which were unanimously praised by the community.
2021-12-14
14
2021-12
On December 14, a training course for directors of county law firms in Shandong Province organized by the Party Committee of Shandong Lawyers Industry visited Zhongcheng Qingtai Jinan Institute for exchange. Directors of more than 50 county law firms from all over Shandong Province participated in the activity. Lawyer Shi Guangbo, deputy director of Zhongcheng Qingtai Jinan Institute, warmly received the guests. Director Shi Guangbo accompanied the trainees of the training class to visit the office environment of the law firm, introduced the basic situation of the law firm's functional areas, performance honors, party building work, etc., and highlighted Zhongcheng Qingtai's innovative measures to promote party building in the party member activity room. At the symposium, Director Shi Guangbo elaborated on the development history, law firm culture, market layout, social responsibility and other contents of Zhongcheng Qingtai, and conducted in-depth discussions on improving the enthusiasm of lawyers to participate in public welfare services, law firm business development, risk prevention and control, etc., providing new development ideas for the construction of county law firms in Shandong Province.
2021-12-14
13
2021-12
Abstract: China's law adopts the "three-point method" for company resolutions, including non-establishment, invalid and revocable. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. The invalidity of a company resolution is statutory from the beginning and does not apply the statute of limitations. Keywords: company resolution invalid content serious defects The act of corporate resolution is a civil legal act of a certain procedural nature made by the legal person of the company in accordance with the method of discussion and voting procedures stipulated by the law or the articles of association. As a kind of civil legal act, the company resolution must meet the establishment requirements of civil legal act, that is, the resolution must be made by the shareholders' meeting or the board of directors, and the final voting result represents the true intention of the corresponding proportion of shareholders or directors. As the company's intention, the company's resolution can only have legal effect if the procedure and content of the resolution are legal and fair. Our law adopts the "trichotomy" for corporate resolutions, which includes three categories: non-establishment, invalidity and revocability. The company's resolution is invalid because the content of the resolution is seriously flawed, that is, its content violates laws and administrative regulations. 1. relevant mandatory legal provisions Article 4 of the Company Law "Inherent Rights of Shareholders of a Company (Income from Assets, Participation in Major Decisions, Selection of Managers)." Article 16 "The provisions of the company's guarantee (the guarantee for others shall be resolved by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association, and the guarantee for shareholders or the actual controller shall be avoided by the resolution of the shareholders' meeting or the general meeting of shareholders, and the voting of the shareholders controlled by the above-mentioned shareholders and the actual controller shall be passed by more than half of the voting rights of other shareholders present at the meeting)." Article 20 "The shareholders of the company shall not abuse the provisions of the rights of shareholders. (The rights of shareholders shall not be abused to the detriment of the interests of the company, other shareholders and creditors)", Article 21 "The related relationship to the detriment of the interests of the company." Article 34 "The provisions on the distribution of dividends and the subscription of capital contributions. (Shareholders shall share dividends and subscribe for additional capital contributions in proportion to their actual contributions, unless otherwise agreed by all shareholders.)" Article 16 of the (III) for Judicial Interpretation of the Company Law "Provisions on Reasonable Limitation of Shareholders' Rights. (Failure to fulfill or fully fulfill the obligation of capital contribution or withdrawal of capital contribution, the right to request profit distribution, the right to subscribe for new shares, the right to distribute surplus property, etc. may be restricted in accordance with the Articles of Association or the resolution of the shareholders' meeting)", Article 17 "The provision of disqualification of shareholders. (Failure to fulfill the obligation to contribute or to withdraw all the capital contribution, and failure to make up for it within a reasonable period of time after being urged may disqualify the shareholder.)" Article 59 of the "Civil Servants Law" stipulates that "civil servants shall not take shares and hold posts concurrently." The statute of limitations is not applicable to the lawsuit that the 2. confirms the invalidity of the company's resolution. It is generally believed that the statute of limitations applies to claims and primarily to claims, I .e., the statute of limitations may apply only if the right holder requests a particular act or not for a particular act. The exorcism period applies to the right of formation, the application of the exorcism period is usually expressly provided by law, the law only provides for the application of the exorcism period for the revocation of the resolution, and for the invalidity of the company's resolution. The invalidity of the company's resolution is invalid from the beginning and is not subject to the limitation period. In the second instance of Dong Fangdi v. Zhu Hong Company's resolution dispute ((2018) Hu 01 Min Zhong No. 6946), the court held that the original application of Zhu Hong, Sha Yan and Chen Xiaoying confirmed that the resolution of the shareholders' meeting was invalid, and the object of the application was not the right to claim creditor's rights. Therefore, the limitation of action was not applicable to the original application of Zhu Hong, Sha Yan and Chen Xiaoying. In the second instance of the dispute over the resolution of Yin Yongqiang and Gu Yalin Company ((2020) Ji 01 Min Zhong No. 626), the court held that Gu Yalin's lawsuit in this case was to confirm that the company's resolution was invalid. The court of first instance held that the claim was a right of formation, and the statute of limitations was not applicable and there was nothing improper. Determination of the Eligible Plaintiff 3. to Initiate the Invalidation of the Confirmation Resolution Company resolutions, as internal resolutions, have internal effect only, not external effect. The creditors of the company, as outsiders of the company, are generally not bound by internal resolutions of the company. Under normal circumstances, the company's resolution does not have a direct legal relationship with the creditor, unless the creditor and the company signed a contract with the relevant express agreement, otherwise, the creditor has no practical legal interest in intervening in the dispute over the validity of the company's resolution. A shareholder in the legal sense refers to a shareholder recorded in the company's register of shareholders and registered by the company's registration authority, and an anonymous shareholder is not a shareholder in the sense of the company law, and generally has no right to independently claim that the company's resolution is invalid until the company confirms its shareholder status. In the civil ruling case of the second instance of the dispute over the confirmation of the validity of the resolution of Anhui Longzhi Construction Investment Co., Ltd. and Anhui Outlets Investment Co., Ltd. ((2020) Wan 01 Min Zhong No. 3867), the court held that although Longzhi Construction Company was no longer a shareholder of Outlets Company in terms of industrial and commercial registration when the resolution of the shareholders' meeting involved in the case was made, Longzhi Construction Company was an industrial and commercial registered shareholder of Outlets Company, and the resolution of the shareholders' meeting also contains the opinions on the transfer of equity of Longzhi Construction Company and the corresponding changes in the equity structure of the company. As a shareholder at the time of the formation of the resolution of the shareholders' meeting, Longzhi Construction Company is an internal member of the company, and its interest in the resolution of the shareholders' meeting is not only in the maintenance of individual rights and interests, but also in the supervision of the legality of the company's actions. Therefore, there is no need to determine the relationship between the resolution of the shareholders' meeting involved in the case and the result of the equity transfer. Even if the existence of the resolution of the shareholders' meeting is not the fundamental reason why the equity of Outlets Company enjoyed by Longzhi Construction Company was transferred to Nikpu Company, which is an outsider, it cannot be used to push Longzhi Construction Company not to have any litigation interest in confirming the invalidity of the resolution of the shareholders' meeting. In the first instance of the dispute over the validity confirmation of the resolution between you zhuofan and Shenzhen huate city construction and development co., ltd. ((2018) yue 0303 min Chu no 12310), the court held that: except shareholders, directors and supervisors, other personnel need to prove that they have a direct interest in the content of the company's resolution before they can be qualified plaintiffs. In this case, the plaintiff was only a general creditor of the defendant, not an insider of the company, nor a bondholder or creditor who may have a voting arrangement, and there was no direct interest between it and the defendant's corporate resolution, but only a contract of debt and debt type with the company as the subject. The contract between the plaintiff and the defendant belongs to the contract between two independent subjects, and the protection can be realized by applying the existing legal system such as contract law or the right of avoidance. The company resolution made by the defendant is only the internal behavior of the defendant, which belongs to the formation process of the will and even the expression of the will of the unilateral subject of the company, and the plaintiff, as a creditor, has no right of action to negate the effectiveness of the defendant's internal behavior. The determination of the qualified plaintiff in the case of the 4. to confirm the validity of the resolution. According to the provisions of relevant laws and judicial interpretations, the litigation of the validity of corporate resolutions in China only includes three types of litigation: the invalidity of the resolution, the revocation of the resolution and the non-establishment of the resolution, and does not include the confirmation of the validity of the resolution. The three kinds of corporate resolution validity litigation stipulated in relevant laws and judicial interpretations are designed to give shareholders who may be harmed by defective resolutions to exercise statutory shareholder relief rights to protect their legitimate interests. However, if the shareholder does not take the initiative to bring a lawsuit in accordance with the above-mentioned provisions of the company law and judicial interpretation, the court shall not directly intervene in the affairs of the company's autonomy through the coercive force of the state. The trial of a lawsuit confirming the validity of a company's resolution requires both formal and substantive examination. When conducting a substantive review, it is necessary to make an empirical judgment from the perspective of the commercial subject, and the result is likely to deviate from the spirit of corporate autonomy. The company law and judicial interpretation do not provide for the confirmation of the validity of the company's resolution, which reflects the careful measurement of the relationship between corporate autonomy and judicial intervention. A court that confirms the validity of a resolution is generally inadmissible. The plaintiff who confirms the validity of the resolution should generally take the interest of the lawsuit as the prerequisite, and the determination of whether the interest of the lawsuit is not only based on the existence of a dispute in the legal relationship of the civil entity, but also on whether the legal relationship in dispute constitutes a dispute or the core legal relationship of the lawsuit. In other words, a contested legal relationship cannot be a prerequisite for other disputes or litigation, but only in this way can it have a confirmed interest and can be sued for confirmation. In the second instance of the civil dispute over the resolution of Guangdong Xinhui Bioenergy Co., Ltd., Beijing Xinhui Bioenergy Technology Co., Ltd., Beijing Qing 'an Hongda Bioengineering Technology Co., Ltd., Dongguan Zhongchang Environmental Protection Investment Co., Ltd., and Guangdong Qingda Venture Capital Co., Ltd. ((2020) Yue 19 Min Zhong No. 2622), the court held that the company law and its judicial interpretation did not explicitly exclude the lawsuit confirming the validity of the relevant agreement. Therefore, whether the parties exercise the right of action has the interest of litigation, it should be distinguished according to the specific objective circumstances of different cases, that is, if the validity of the resolution involved in the case is not confirmed, it will affect the legitimate interests of the parties to the lawsuit to confirm the validity of the agreement, resulting in the unstable relationship between the rights and obligations of the parties. In this case, it has the interest of litigation. In this case, the content of the resolution of the board of directors involved in the case involves the change of the legal representative, which is different from the general business and management resolutions of the company. Because the legal representative is in the special status of the company, if the validity of the resolution involved is not confirmed in time, it may cause confusion or obstacles to the operation of the company. Therefore, the two directors in this case filed a lawsuit to confirm the validity of the agreement involved, which has the interest of litigation and falls within the scope of the people's court. In the civil second instance case ((2020) Yue 19 Min Zhong No. 3269) of the dispute over the validity of the resolution of Dongguan Jiahong Education Technology Co., Ltd. and Huang Dongnan and He Zhipeng Company, the court held that: having the interest of litigation should meet the following requirements at the same time: 1. There is sufficient evidence to prove that the validity of the resolution of the shareholders' meeting is not clear, so there are disputes among shareholders; 2. The right or legal status of the shareholder who brought the lawsuit is in real danger or anxiety due to the unclear effect of the resolution of the shareholders' meeting; 3. The interest of the shareholder's lawsuit for confirmation cannot be covered by other claims for payment. In this case, Huang Dongnan claimed that the resolution of the shareholders' meeting formed by the interim shareholders' meeting on March 1, 2019 was valid, while Jiahong Company and He Zhipeng claimed that the resolution was not valid, and there was a dispute between the two parties over the validity of the resolution. Due to the unclear validity of the resolution of the shareholders' meeting, Huang Dongnan was unable to change to the executive director, supervisor and legal representative of Jiahong Company, and went through the corresponding company change registration, which objectively led to Jiahong Company's chaotic operation and management. Therefore, the Court considers that Huang Dongnan has an interest in litigation for the request to confirm the validity of the resolution, and his lawsuit for the validity of the resolution of the shareholders' meeting falls within the scope of the court's case. The resolution on the removal of 5. shareholders shall meet the requirements of procedural and substantive elements. According to the provisions of Article 17 of the Judicial Interpretation (III) of the Company Law, the company may disqualify a shareholder by resolution of the shareholders' meeting, but the following conditions must be met: 1. The shareholder fails to fulfill the obligation of capital contribution or withdraw all capital contribution; 2. The company has fulfilled the pre-procedure of reminder and given shareholders a reasonable time limit to make up for it; 3. The company made a resolution to delist in the form of a resolution of a shareholders' meeting. In addition, the provisions of this article grant the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions, and on the basis that the actions of the defaulting party have seriously harmed the interests of the company and the rights and interests of shareholders, the defaulting party should not be granted the right of delisting of shareholders who fail to fulfill their capital contribution obligations or withdraw all their capital contributions. In the second instance of the dispute over the validity confirmation of the resolution of Guanling lingnan driving school co., ltd. and Lu rongzhi company ((2017) Qian 04 min zong no 750), the court held that Lu rongzhi, Lu rongtao, tan chenglin, Luo xingju and Wang kaixian should urge Wang changmei to pay and pay the capital within a certain reasonable period of time even if they believed that Wang changmei had failed to fulfill his capital contribution obligation. However, the appellant has no evidence to prove that he has fulfilled the above-mentioned reminder obligation, and Wang Changmei can prove that he has fulfilled the obligation of capital contribution, which does not meet the substantive elements of the shareholder's removal. In the second instance of the dispute over the validity confirmation of the resolution between Huai 'an Ye Chen Real Estate Co., Ltd. and He Bing Company ((2019) Su 08 Min Zhong No. 1434), the court held that in this case, Ye Chen Company made a shareholders' meeting resolution to disqualify He Bing as a shareholder on the grounds that He Bing had withdrawn more than its capital contribution of 20 million yuan and was not returned by the company. Now both parties agree that the dispute in this case is whether the appellee He Bing constitutes withdrawal of all, if the entire list is not withdrawn, the resolution of the shareholders' meeting to remove the list shall be invalid for violating the above-mentioned legal provisions. The evidence available to the appellant is not sufficient to prove that the appellee He Bing has withdrawn all the capital contributions of Ye Chen Company, so his resolution of the shareholders' meeting to remove He Bing is invalid due to violation of the provisions of the above-mentioned company law. In the second instance of the dispute over the confirmation of the validity of the resolution between Yu Hanying, Wu Wenbiao and Guangdong Yuehui Environmental Protection Co., Ltd. ((2020) Yue 19 Min Zhong No. 11525), the court held that in this case, Wu Mou 1 also had the situation of withdrawing all capital contributions. According to the legal principles of consistency of rights and obligations, fairness and integrity, that is, Wu Mou 1 had no right to hold a shareholders' meeting, the resolution disqualified Yu Hanying as a shareholder, so the resolution of the shareholders' meeting made by Guangdong Hui Company on May 25, 2020 was invalid, and the trial court made an error in this handling, which was corrected by this court. The resolution of the 6. shareholders' meeting to impose a fine on a shareholder shall be based on the standard and range of the fine clearly stated in the articles of association of the company. After the shareholders fulfill the obligation of capital contribution, they and the company are equal civil subjects, have independent personality between each other, there is no relationship between management and management, the company's shareholders' meeting in principle has no right to impose any punishment on the shareholders. The provisions of the articles of association on the imposition of fines on shareholders at the shareholders' meeting are a sanction measure preset by all shareholders of the company for violating the articles of association, which is in line with the overall interests of the company, reflects the human characteristics of the limited company, does not violate the prohibitions of the company law, and should be legal and effective. However, when the articles of association give the shareholders' meeting the power to impose fines on shareholders, the standard and range of fines shall be clearly defined. In the case of Nanjing AXA Financial Consulting Co., Ltd. v. Zhu Juan's shareholders' meeting resolution fine dispute (Bulletin of the Supreme People's Court, No. 10 (General No. 192), 2012), the court held that in this case, when AXA revised its articles of association, although it stipulated that the shareholders' meeting had the right to impose a fine on the shareholders in the eight circumstances of the first paragraph of Article 36, however, the standard and range of the fine are not clearly recorded in the articles of association of the company, so that Zhu Wei can not make a prior prediction of the consequences of the violation of the articles of association of the company, so the resolution of the interim shareholders' meeting of AXA Company to impose a fine on Zhu Wei is obviously insufficient legal basis and should be considered invalid. Invalidity of 7. violation of voting recusal Voting rights avoidance system refers to the system in which a shareholder or agent may not exercise voting rights in respect of the shares held by him or her when he or she has a special interest in the resolution discussed at the general meeting of shareholders. The "Company Law" only provides for three types of voting rights avoidance situations. Article 16 stipulates that if a company provides guarantees for shareholders or actual controllers, shareholders controlled by the guaranteed shareholders or actual controllers shall not participate in voting; Article 17 The shareholder delisting rules established are only applicable to two types of shareholders who have completely failed to fulfill their capital contribution obligations or evaded all capital contributions; article 124 stipulates that if the directors of a listed company are related to the enterprise involved in the resolution of the board of directors, they shall not participate in the voting.
2021-12-13
11
2021-12
In order to improve the arbitration system to serve the country's major strategic level and create a high-end forum brand for regional development, the "Second Yellow River Arbitration Development High-end Forum" was held in Jinan on December 9. This forum was hosted by Shandong Arbitration Development Promotion Association and Jinan Arbitration Commission, and co-organized by Shandong Internet Media Group and Zhongcheng Qingtai Law Firm. Well-known experts and scholars in the field of arbitration discussed and exchanged the theme of "arbitration reform and development and foreign-related arbitration. Wu Desheng, vice mayor of Jinan Municipal people's Government, Meng Fuqiang, member of the standing Committee of the Shandong Provincial Committee of the Chinese people's political Consultative Conference, director of the Social and legal Committee, and chairman of the Shandong Arbitration Development Promotion Association, and other leaders and guests attended the forum. During the round table forum, Geng Guoyu, president of Jinan Bar Association and director of Zhongcheng Qingtai (Jinan) Law firm, shared and exchanged views with experts and scholars on the spot on issues such as building a high-quality arbitration ecosystem in the Yellow River Basin, building an arbitration mechanism with an international perspective, and enhancing the credibility of arbitration. Lawyers of Zhongcheng Qingtai have been actively participating in the development of arbitration, taking the implementation of arbitration law as the main line, constantly enriching the service mode of arbitration, improving the quality of arbitration service, and providing strong arbitration guarantee for effectively resolving contradictions and improving the level of social governance. This forum fully demonstrates the vision of specialization and internationalization, brings the latest trends in international arbitration and successful reform experience, and will also effectively promote the high-quality development of diversified dispute resolution methods such as arbitration and mediation, enhance the development, attractiveness, competitiveness and influence of arbitration, and speed up the construction of specialization, intelligence, marketization and internationalization of arbitration, so as to provide strong arbitration energy for the healthy development of regional economy and social harmony and stability.
2021-12-11
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2021-12
On December 9, 2021, under the new situation of comprehensively strengthening the rule of law, promoting enterprise reform and innovation, and high-quality economic development, in order to further strengthen the cooperation between enterprises and legal service institutions and better serve the reform and development of enterprises, Zhongcheng Qingtai Law firm signed a strategic cooperation agreement with the Tai'an Enterprise and Entrepreneur Federation and held legal lectures. Yan Xinjian, former vice mayor of Tai'an City, Zhang Ping, former secretary general of the municipal government, Wei Ping, deputy county leader of the Municipal Market Supervision Administration, Liu Xianjie, director of the Municipal Industrial Economic Development Service Center, Wei Yunqin, deputy director of the Municipal Private Economic Development Service Center, Chu Hu, head of the Capital Market Section of the Municipal Local Financial Supervision Bureau, Wang Xinlin, former director of the municipal government's overseas office, and Zhao Shixin, secretary general of the Federation of enterprises and entrepreneurs attended the signing ceremony, han Honggang, Director of Zhongcheng Qingtai Law Firm, Geng Guoyu, Director of Zhongcheng Qingtai (Jinan) Law Firm, Li Zhenzhong, Deputy Director of Zhongcheng Qingtai Law Firm, Si Jialin, Honorary President of Taian Lawyers Association, Yu Xuedong, Director of Shandong Hualin Law Firm, Zhao Xuan, Deputy Director of Zhongcheng Qingtai (Taian) Law Firm, and heads of enterprises associations of counties and cities and high-tech zones, more than 100 people including vice president, director, chairman of member units, Zhongcheng Qingtai Taian Institute, and some lawyers from Hualin Institute participated in the event. The activity is divided into three parts, the first part is the signing ceremony. Director Han Honggang signed a strategic cooperation agreement with Tai'an Enterprise and Entrepreneur Association on behalf of Zhongcheng Qingtai Law Firm. Subsequently, Geng Guoyu, director of Zhongcheng Qingtai (Jinan) Law Firm, delivered a speech. Director Geng said: In order to respond to the integrated development strategy of Jitai, promote the high-quality development of Jitai, help build the provincial capital economic circle, and give full play to the role of legal services in the integrated development of Jitai, Zhongcheng Qingtai Law Firm set up Taian Branch. In accordance with the integrated management model, Zhongcheng Qingtai General Office will strengthen the standardized management of the Tai'an branch, jointly build an integrated professional team, ensure and improve the professional level of the branch, and give full play to the advantages of the headquarters in terms of scale, professionalism, business, and resources. we will promote the integrated development of the legal service market in the two places and actively serve the integrated development strategy of Jitai. Zhongcheng Qingtai and Tai'an Enterprise and Entrepreneur Federation signed a strategic agreement to establish a strategic cooperative relationship, which is a useful exploration of the integration of legal services in Jitai and Thailand. Zhongcheng Qingtai will take this opportunity to actively serve the economic and social development of Tai'an, relying on the brand, scale and specialty of Zhongcheng Qingtai, and give full play to the platform advantages of large, strong and professional institutions. to provide high-quality and efficient legal services for the vast number of enterprises and entrepreneurs in Tai'an, share high-quality resources, strengthen cooperation and common development. In the following lecture activities, lawyer Li Zhenzhong, deputy director, director of the capital market department and senior partner of Zhongcheng Qingtai Law Firm, accurately explained the impact of the establishment of the Beijing Stock Exchange on corporate financing and listing, as well as the listing procedures of the Beijing Stock Exchange. Zhao Xuan, deputy director of Zhongcheng Qingtai (Taian) Law Firm, explained how enterprises and entrepreneurs identify and prevent legal risks in the context of the implementation of the Civil Code. At the end of the event, Secretary-General Zhang Ping made a concluding speech. Secretary-General Zhang said: This event signed a strategic cooperation agreement between the Tai'an Enterprise and Entrepreneur Association and Zhongcheng Qingtai Law Firm. Director Geng Guoyu made an important speech and listened to Li Zhenzhong. The counseling reports made by lawyers and Zhao Xuan on the listing of enterprises on the Beijing Stock Exchange and the study of the Civil Code, which made everyone greatly inspired and educated, I hope everyone will deepen their study and understanding and guide their work practice. It is necessary to fully understand the significance of the establishment of the Beijing Stock Exchange, seize the opportunity of the state to encourage the expansion of the listing of small and medium-sized enterprises, standardize management in accordance with the law, promote scientific and technological innovation, improve business efficiency, and speed up the pace of enterprise listing; in particular, it is necessary to strengthen cooperation with legal institutions such as Zhongcheng Qingtai Law Firm, so as to manage enterprises according to law, operate according to law, handle affairs according to law, and safeguard rights according to law, so as to jointly create a good legal environment for the stable development of enterprises, and make new contributions to promoting enterprise reform, innovation and high-quality development, and building a strong socialist modern city in an all-round way!
2021-12-11
11
2021-12
Abstract: The crime of producing and selling toxic and harmful food is an important crime of food safety. The key to the identification of this crime lies in the subjective and objective determination of "toxic and harmful. The objective level requires that the non-food raw materials must be able to cause harm after human consumption in quality, and must reach a certain degree of impact on human health in quantity. The subjective level requires that the perpetrator be aware of the toxicity. Keywords: toxic and harmful knowingly identified The "Criminal Law Amendment (VIII)" has revised and improved the crime of producing and selling toxic and harmful food, increased the penalty, and strengthened the protection of food safety. However, there are still many uncertainties in how to determine "toxic and harmful" in judicial practice. The place. Based on the actual experience of handling cases, this paper makes a detailed analysis of the criteria of "toxic and harmful" from the perspective of criminal law hermeneutics, with a view to benefiting the application of this crime. Objective Level of 1. -- Definition of Toxic and Harmful The key to the identification of the crime of producing and selling toxic and harmful food is "toxic and harmful". If the mixed non-food raw materials are non-toxic and harmless, then it does not constitute a crime. If the mixed non-food raw materials do not meet the safety standards, then it constitutes the crime of producing and selling food that does not meet the safety standards. In the provisions of the crime of producing and selling toxic and harmful food stipulated in Article 144 of the Criminal Law, there is no clear definition of the toxic and harmful nature of food, so it is necessary to carefully interpret "toxic and harmful". So as to correctly delineate the boundaries between crime and non-crime, this crime and the other crime. According to the provisions of the Food Safety Law, food safety means that food is non-toxic and harmless, meets the due nutritional requirements, and does not cause any acute, subacute or chronic harm to human health. From this article, we can conclude that toxic and harmful means that it does not meet the nutritional requirements and causes any acute, subacute or chronic harm to human health. Some scholars also pointed out that "food safety refers to the situation that will not cause any damage to consumers when used by consumers in accordance with the intended use." Therefore, toxic and harmful should be understood as food that causes harm to human health and does not meet the standards for human consumption or drinking. Does this mean that as long as non-food raw materials contain toxic and harmful ingredients can be identified as a crime? In real life, food contains certain toxic and harmful substances is completely normal. At present, there are about three thousand kinds of food additives, and most of them are toxic and harmful, but the country has not banned the addition of additives to food because of these toxicities, because appropriate additives can make food more delicious and more beautiful., The preservation time is longer. Obviously, we cannot think that as long as there are toxic and harmful ingredients in food, we must be recognized as a crime, and we must also clarify the degree of toxicity and harm required. (I) toxic and harmful judgment data Non-food raw materials themselves are toxic and harmful, and they also bring harm to the human body after eating. For those non-food raw materials that are toxic and harmful and will cause harm to the human body after eating, they should naturally be regarded as toxic and harmful. This is not controversial. Non-food raw materials themselves are toxic and harmful, but they will not cause harm to the human body after eating. Do non-food ingredients that are inherently toxic but do not cause harm to the human body after consumption fall within the scope of this crime? The author believes that although this crime is a crime, it does not mean that it does not require any degree of requirement. In this case, because it will not produce results that harm the society, it does not have social harm, and it does not meet the toxic and harmful standards in the crime of producing and selling toxic and harmful food. 3, non-food raw materials itself non-toxic, harmless, but after eating to bring harm to the human body This situation needs to be discussed on a case-by-case. The first is to eat or drink food caused by their own reasons. There are two kinds of situations, one is that consumers eat or drink too large a dose and lead to poisoning. The second is that for those who have a special constitution, their consumption of food containing certain non-food raw materials has caused damage to health, and ordinary people will not cause harmful results after eating. We believe that the above two cases of non-food raw materials do not meet the toxic and harmful standards. The reasons are as follows: first of all, the health problems of the eaters who do not eat or drink food according to the dose are caused by their personal reasons, not by the behavior of the perpetrator. According to the responsibility doctrine, this harmful result can not be attributed to the perpetrator, so it can not be regarded as a crime. Secondly, everyone's physical condition is different. If the eaters have health problems due to their own physical fitness, we naturally cannot pursue the criminal responsibility of the perpetrator. The second is that the non-food raw materials themselves are not toxic but react after compounding, resulting in the production of toxic and harmful substances. This situation needs to be based on the premise that the perpetrator knows that chemical changes will occur and produce toxic and harmful elements. If the perpetrator does not know that it will react to generate toxic substances, it should be regarded as an accident and should not be regarded as a crime. Contrary to this situation, non-food raw materials are inherently toxic, but when non-food raw materials are mixed into food, chemical changes occur between non-food raw materials and food or in the case of compound addition, making food non-toxic. This situation also requires the perpetrator to know that non-food raw materials will produce chemical changes after the addition of food non-toxic, otherwise it is purely accidental coincidence and lead to non-toxic, but the perpetrator's understanding of the error, still constitute the crime, but in this case may be established is the attempted form of this crime. Defining Standard of (II) Toxic and Harmful Through the above discussion of toxic and harmful judgment data, we think that we should grasp the standard of toxic and harmful identification from the two levels of quality and quantity. Qualitative requirements. The non-food material must be capable of causing harm after human consumption. Here to exclude the consumption of personal reasons for the harm caused by the situation. In addition, this crime is a crime does not require the actual harm results, but requires toxic, harmful to be highly closely related to the harm to human health, for those who are toxic but will not cause any harm can not be identified as this crime. amount of requirements. Poisonous ingredients must reach a certain degree of impact on human health. Food should not contain factors that cause harm to human health, but this does not mean that food cannot contain any harmful ingredients, but that the content of harmful ingredients cannot reach the level that can cause harm to human health. Some non-food raw materials themselves are indeed harmful, but their quantity is not enough to cause damage or threat to human health, so this non-food raw material does not meet the requirements of toxicity and harm, and cannot be used as a prerequisite for conviction. 2. the subjective level-the actor should know that it is toxic and harmful. Is toxic and harmful a knowingly content? Some scholars believe that in determining the subjective aspect of the crime of producing and selling toxic and harmful food, the perpetrator can only be required to have knowledge of the incorporation of non-food raw materials, not knowledge of the toxic and harmful nature. If the producers and sellers are required to know the toxicity, it will undoubtedly put forward extremely high requirements for the subjective cognition of the criminal subject, which will bring great difficulties to the identification of the crime. The nature of raw materials, on the other hand, is the basis of the rationality and cognitive rationality of the behavior of producers and sellers. Some scholars have even pointed out that when judging the subjective aspect of the perpetrator, the perpetrator only needs to have a general understanding of the harmful consequences of his own behavior, and does not require the perpetrator to have a detailed understanding of the chemical properties and toxicity of the added substances. According to the general theory of criminal law, whether directly or indirectly intentionally, its "knowingly" is the understanding of the harmful result. Knowing should contain two levels of content: the factual level and the value level. The so-called factual level is that the behavior has an understanding of the facts of its own behavior, including the understanding of the nature of the behavior, the way of behavior, the object of the behavior, the time and place of the behavior, the result of the behavior, etc. Specific to this crime, on the factual level, the actor realizes that he is mixing toxic and harmful non-food raw materials into food or selling toxic and harmful non-food raw materials. On the value level, the actor realizes that the behavior of mixing or selling toxic and harmful non-food raw materials will harm the society. In fact, at the factual level, it can be subdivided into the knowledge of "non-food raw materials" and the knowledge of "toxic and harmful", and it is based on the knowledge of "toxic and harmful" that can identify the actor's knowledge at the value level, that is, the actor can come to the conclusion that it may cause harm to the health of others when he recognizes the toxicity, however, the mere understanding of "non-food raw materials" cannot be established as a result of the harm. This crime, as a criminal act, does not require the reality of the harmful results, as long as the perpetrator has carried out the constituent elements of the act can be identified as a crime, and the criminal law can be separated from the harmful results of the actor's behavior to evaluate, it is precisely because of the high degree of closeness of the act and the harmful results and early intervention. Only the behavior can reflect and harm the results of the close correlation can be identified as a crime. If it is only recognized that the incorporation of "non-food raw materials" does not reflect the high correlation between behavior and harmful results, only by recognizing that the incorporation of non-food raw materials is "toxic and harmful" can the behavior and results be demonstrated. High degree of tightness. It should be noted here that the fact that the elements of the act do not contain the harmful result does not mean that the perpetrator is unaware of the result of his act and the nature of the result. If the crime of invading a house is a typical behavior offender, as long as the perpetrator implements the act of invading another person's house, it should be considered a crime, without asking whether the reality has caused damage to the right of tranquility of another person's house, but the perpetrator has obviously realized that what he implements is the act of invading another person's house and this act will affect the tranquility of another person's house. If it does not include knowing the result of the harm, the perpetrator should also be considered a crime if he only visits the owner's home. The main reason why some people question whether "toxic and harmful" should be known as the content of this crime is that if the perpetrator is required to have an understanding of the harmfulness of the result, he will often use this as an excuse to defend himself. I did not realize that my actions would cause consequences harmful to society, which caused difficulties in intentional identification. The author believes that it is difficult to identify in judicial practice as a reason to deny that "toxic and harmful" is not the known content of this crime. First of all, there are many difficulties in the identification of criminal law. For example, what is a dangerous state is still a question of wisdom, and practice and theory cannot be confused. Secondly, intentional identification is a process of unity of subjectivity and objectivity. It is necessary to listen to the perpetrator's justification, but also to judge objectively. The perpetrator's one-sided statement should not be considered to be subjectively intentional, but also to grasp his subjective guilt through the objective aspect. Secondly, it has been discussed in the previous article that only knowing that "non-food raw materials" does not reflect people's understanding of the harmful results of their behavior. Only when they have an understanding of "toxic and harmful" can they be considered to have recognized the social harmfulness of their behavior. Finally, only by recognizing the "toxic harmfulness" can it reflect the greater subjective malignancy of human beings. Knowing that "non-food raw materials" and knowing that "toxic and harmful" is actually a layered relationship. Only when the perpetrator has a second knowing, can his subjective malignancy reach the level of conviction. As for the view put forward by some people, only the actor needs to have a general understanding of the harmful consequences of his own behavior, and does not require the actor to have a detailed understanding of the chemical properties and toxicity of the added substances. If the perpetrator has already been aware of the harmful consequences of his actions, how can he not be aware of the "toxic and harmful" nature of the non-food ingredients he is mixed with? Since it is admitted that the perpetrator should be aware of the harmful results, it is necessary to admit that he knows "toxic and harmful".
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Presentation of 1. issues In practice, the developer and the buyer signed the "commercial housing sales contract", in the agreed housing delivery period at the same time, in order to avoid the late delivery of the liability for breach of contract, agreed on a fixed period of extension, the developer does not bear the responsibility for late delivery of breach of contract. Before the implementation of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code), the Intermediate People's Court of Jinan City and the courts under its jurisdiction mostly cited the relevant provisions of the the People's Republic of China Contract Law (abolished, hereinafter referred to as the Contract Law), and tended to think that the agreement on "late delivery of extended period" was legal and effective. The terms on extended period were the agreement of both parties and did not obviously infringe the interests of the buyer, it also does not violate the mandatory provisions of laws and administrative regulations. Both parties shall perform in accordance with the agreement. The starting time for the developer to bear the liquidated damages for overdue house delivery shall be calculated after the expiration of the grace period. However, the Civil Code has made more stringent provisions on the format clause, and will there be a change in the determination of the validity of the late delivery extension period? New Rules on Form Clauses in the Civil Code of 2. Article 496, paragraphs 1 and 2, of the Civil Code Contract Code, respectively, states: "A format clause is a clause that the parties have prepared in advance for reuse and has not negotiated with the other party at the time of the conclusion of the contract." "Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to the terms that have a significant interest in the other party, such as the exemption or reduction of its responsibilities, and explain the terms in accordance with the requirements of the other party. If the party providing the form clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." This provision provides for the format clause and the obligation of the party providing the format clause. Compared with Article 39 of the original Contract Law, the following major amendments have been made: 1. After "taking reasonable measures to remind the other party to pay attention to exemption or reduction of its responsibilities", the content of "clauses with significant interests with the other party" is added. This means that the clauses that exempt or reduce the responsibilities of the party providing standard clauses are not the only clauses that need to be reminded of the other party, and other clauses that have significant interests with the other party also need to be reminded. This obviously expands the scope of drawing the attention of the other party, and all clauses that have a major interest in the other party are within the scope of prompting attention. 2, increase the consequences of not fulfilling the duty of care to remind the other party. Article 39 of the original "Contract Law" does not provide for the legal consequences of not fulfilling the obligation to prompt the other party to pay attention, so it is called "soft obligation". This article supplements this by providing the legal consequences of "if the party providing the standard clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. To advocate that "clauses that have a significant interest relationship with the other party" do not become an integral part of the contract is tantamount to declaring that it does not exist and has no effect. Such legal consequences are sufficient to warn the party providing the standard clauses to exercise utmost care and protect the other party's rights and interests., Also protect your own rights and interests. 3. This article also adds the "unreasonably" restriction language, increasing the circumstances of mitigation of liability, in other words, must achieve unreasonable exemption or reduction of its liability, increase the other party's liability, in order to make the format clause invalid. On the other hand, "excluding the main rights of the other party" is revised to "restricting the main rights of the other party", and the qualification of "unreasonable" is added. In this way, the limitation of the other party's rights and the exemption or reduction of its liability, increase the other party's liability side by side, constitute the same exemption, that is, any unreasonable exemption or reduction of its liability, increase the other party's liability, limit the other party's main rights, will lead to the invalidity of the format clause. In addition, the Civil Code has also adjusted the reasons for the invalidity of the format clause, mainly reflected in: the party providing the format clause unreasonably exempts or reduces its liability, increases the liability of the other party, and restricts the other party's main rights. These circumstances are not expected by the parties to the contract when they conclude the contract, are contrary to the purpose of the parties to conclude the contract, seriously damage the legitimate rights and interests of the other party, and obviously violate the basic principles of civil law, such as the principle of fairness. Therefore, they are all legal causes that lead to the invalidity of the standard clause. As long as one of the circumstances occurs, the standard clause is invalid. 3. related cases (I) 2021 Lu Minshen 974 Commercial Housing Sales Contract Dispute Judgment of Shandong Higher People's Court: After review, this court believes that the "Qingdao Commercial Housing presale Contract" signed by the buyer and the seller is legal and valid, and both parties should perform their contractual obligations. The "Qingdao Commercial Housing presale Contract" clearly stipulates that the delivery date is before March 31, 2019. The supplementary terms of the contract stipulate that the seller fails to deliver the house to the buyer within the time limit stipulated in this contract due to its own reasons, the buyer shall give the seller A 30-day extension period, during which the contract continues to be performed, and the seller does not need to bear the liability for breach of contract to the buyer. The buyer shall exercise prudent care over the contents of the supplementary clause, and the buyer, as a person with full civil capacity, shall be aware of the legal consequences of its signature on the contract, and the buyer shall not support the claim that the clause is a standard clause and that the seller has not fulfilled its obligation of clear notification and presentation. (II) 2021 Lu 01 Min Zhong 6181 Commercial Housing presale Contract Dispute The judgment of Jinan Intermediate People's Court: The commercial housing sales contract and supplementary agreement signed by the original and the defendant are the true intentions of the parties, and do not violate the mandatory provisions of laws and regulations, and are legal and effective. Both parties should fully perform the contract. In this case, the first item of Article 3, paragraph 8, of Annex 5 to the contract signed by the plaintiff and the defendant stipulated a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period. (III) 2021 Lu 0102 Minchu 1295 Commercial Housing presale Contract Dispute The People's Court of Lixia District of Jinan City ruled: The "Jinan City Commercial Housing Sales Contract", "Supplementary Agreement", and "Compensation Confirmation Form" signed by the buyer and the seller are the true intentions of both parties and do not violate the effectiveness of laws and administrative regulations. The mandatory provisions do not violate public order and good customs, and are legal and effective. As a person with full capacity for civil conduct, the buyer is punishing his own rights, and he has not submitted evidence to prove that the seller is in a situation of coercion or taking advantage of the danger of others, so the buyer requires the seller to pay another 90-day penalty, which has no factual and legal basis, and this court does not support it. 4. Lawyer's View The author is inclined to believe that, on the premise that the developer fulfills the obligation to prompt or explain the grace period, the "late delivery extension period" should be considered valid for the following reasons: First of all, before the entry into force of the Civil Code, the Contract Law and its related judicial interpretations contained relevant provisions on standard clauses. Combined with the search of cases before the entry into force of the Civil Code, the determination of "standard clauses" in judicial practice was still With a cautious and conservative attitude, it is determined that the agreement of "late delivery extension period" is legal and valid. The current Civil Code retains some of the provisions of the original Contract Law and related judicial interpretations on "format clauses", and the cases before the entry into force of the Civil Code have certain reference value. For example, in (2021) Lu 01 min zong No. 6177 civil judgment, Jinan intermediate people's court, following the principle of the same case and the same judgment, directly quoted the contents of the judgment of the same court: "regarding the liquidated damages for overdue house delivery, the effect of article 3, paragraph 8, of the supplementary agreement, the civil judgments (2020) Lu 01 min zong No. 9658 and No. 9661 made by Jinan intermediate people's court are as follows: the Supplementary Agreement signed by both parties stipulates a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period." Secondly, on the one hand, the Civil Code makes stricter provisions on the standard clauses, but on the other hand, the provisions also add expressions such as "significant interests" and "unreasonable exemption or mitigation". There is no relevant judicial interpretation to clarify how to define "significant" and "unreasonable", which belongs to the discretion of judges in the process of hearing cases. The author believes that the "significant", "unreasonable" and other qualifiers, to a certain extent, can avoid the risk of "exemption is the format clause. Although the "Supplementary Agreement on Commercial Housing Sales Contract" will exempt the developer from the responsibility for breach of contract for overdue delivery of the house to a certain extent, it should not constitute a situation of "unreasonably exempting or reducing its responsibility and increasing the responsibility of the other party. Finally, as far as both parties are concerned, the main contractual obligation of the buyer is to pay the purchase price on time, and the main contractual right is to accept the house according to the contract; as a developer, its main contractual obligation is to deliver the commercial housing that meets the conditions stipulated by laws and regulations according to the contract. The agreement on the leniency period does not invalidate the contract or clause in Chapter 6, Section 3 and Article 506 of Title I of the Civil Code, nor does it increase the buyer's contractual obligations. It only conditionally exempts the developer from part of the responsibility as the seller, rather than completely or indefinitely exempting the developer from the responsibility of handing over the house. At the same time, the clause still stipulates that if the developer fails to hand over the house within the leniency period, the buyer may still be held liable for breach of contract in accordance with the contract and does not exclude the buyer's contractual rights. Therefore, the agreement of the late delivery grace period should not be recognized as the category of the buyer's "main rights", let alone the buyer's "main rights are restricted or excluded". To sum up, the terms of the extension period are the agreement of both parties, which does not obviously infringe on the interests of the buyers. The agreement of the extension period only delays the time for the developer to assume the responsibility of overdue delivery or exempts the developer from the responsibility of overdue delivery. Part of the responsibility, it does not fall under any of the circumstances of "unreasonably exempting or reducing its liability, increasing the liability of the other party, limiting or excluding the main rights of the other party" as stipulated in article 496 of the Civil Code.
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[brief case]] Zhu Moujia and other three people are the first legal heirs of the deceased in a traffic accident, the insured and driver of an accident vehicle, and the Shanghai branch of a property insurance company is the insurer of the accident vehicle. The traffic police department issued the ''Road Traffic Accident Recognition Letter'', which determined that a vehicle with a certain driving braking performance that did not meet the safety technical conditions and had a safety hazard encountered a pedestrian passing the crosswalk and did not stop to give way; Hou Mouyi did not follow the traffic signal lights. Passing (running a red light), both parties in the accident violated the Road Traffic Safety Law. According to the cause of the accident, it, it, it is determined that both parties bear the equal responsibility for the accident. The plaintiff Zhu Moujia and three others sued to the court, demanding that the Shanghai branch of a certain property insurance company bear the corresponding compensation liability. During the trial, the parties had no objection to the accident and the determination of the responsibility for the accident. The Shanghai branch of a property insurance company argued that it had already delivered the insurance clause to a certain company, and had given this clause a bold and black prompt, and informed the specific content of the exemption clause of a commercial three-way insurance by telephone. According to the aforementioned exemption clause, this case of traffic accident belongs to the situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified". The so-called unqualified inspection includes the unqualified annual inspection of the vehicle and the unqualified inspection after the accident. Therefore, the insurer refuses to bear the commercial insurance limit. Liability. Yu argued that although he had received the insurance clause, the accident vehicle had been inspected annually in accordance with the regulations and passed the annual inspection. There was no problem with the braking of the vehicle before the accident, which was not a case of exemption from insurance liability. He was willing to bear the compensation liability beyond the insurance limit. focus of controversy] Whether this traffic accident is an applicable situation of the commercial three-party insurance exemption clause. The court considered] After hearing, the court held that according to the legal nature of the exemption clause, following the meaning and spirit of Article 15 of the regulations on the implementation of the road traffic safety law, and comprehensively considering other factors such as the legitimate expectation of the insured, the degree of fault of the driver, and the general cognition of the public, the accident in this case does not belong to the case of exemption from insurance liability. The court ruled that the Shanghai branch of a property insurance company should pay the plaintiff 299522.8 yuan for compulsory insurance and commercial insurance. For the insurer's refusal to claim based on the exemption clause of the insurance contract, the trial idea of "from form to reality" and "combination of form and reality" should generally be followed. First of all, in form, it is necessary to examine whether the insurer has fulfilled the obligation of service, prompt and notification of the insurance terms. In this case, the Shanghai branch of a property insurance company has served the insurance terms to the policyholder, in which the exemption clause is also bolded and blackened, and the terms are read out to the policyholder in the form of telephone recording. Therefore, in terms of form, the insurer has fulfilled the corresponding legal obligations. Secondly, in terms of content, the meaning of the contract needs to be interpreted in a manner consistent with the nature of the exemption clause and the legislative intent. According to the insurance clause involved in the case: "When the insured motor vehicle driving license or number plate is canceled in the event of an insurance accident, or fails to inspect or fail to pass the inspection as required" is one of the items exempted from insurance liability. First, as far as the nature of the insurance clause is concerned, it is a form clause provided by the insurer to exempt the insurer from its own obligations, and the understanding of this clause is disputed between the insurer and the policyholder. According to the provisions of the the People's Republic of China Civil Code: if there is a dispute over the understanding of the format clause, it shall be interpreted in accordance with the usual understanding. If there are two or more interpretations of the form clause, an interpretation that is not conducive to the party providing the form clause shall be made. The exemption clause should be interpreted against the insurer. Secondly, in terms of legislative intent, Article 15 of the regulations on the implementation of the Road Traffic Safety Law clearly stipulates that motor vehicle safety technical inspection shall be carried out by motor vehicle safety technical inspection institutions. Based on the meaning of this administrative regulation, the exemption clause refers to "failure to inspect or fail to pass the inspection in accordance with the regulations", which is generally understood to mean that the vehicle is not inspected regularly and in accordance with the regulations to the motor vehicle safety technical inspection institution or the vehicle is inspected by the motor vehicle safety technical inspection institution. The insurer should not make an expansive interpretation of this exemption from its liability after the accident. Third, the insurer should make a substantive and specific detailed description of the content of the insurance exemption clause. Although the insurer orally read out the exemption clause to the policyholder, it did not clearly explain to the policyholder the specific content of the category, subject, method, and time limit of the "inspection according to regulations" referred to in the exemption clause. The insurer shall bear the adverse legal consequences arising from the unclear notification. Finally, in the result, the application of the exemption clause should be consistent with the legitimate expectations of the policyholder and the degree of fault of the actor. In this case, Yu has submitted the accident vehicle for inspection according to regulations and schedule, and passed the inspection. When the accident occurred, it also took the necessary braking measures to actively prevent the occurrence of the accident involved. Although it is recorded in the "Road Traffic Accident Identification Letter" that the braking performance of the accident vehicle does not meet the safety technical conditions and has potential safety hazards, the accident occurred suddenly. It is difficult for a certain vehicle to make accurate self-inspection, evaluation and complete elimination of potential safety hazards in advance. The psychological expectation of taking out commercial triple insurance is also to replace or reduce its own liability for compensation in the event of a traffic accident. Therefore, the exclusion of the aforementioned insurance exemption clause is more in line with the general perception and legitimate expectations of the public. Lawyer Advice] In practice, insurance companies often encounter the need to deal with the customer's vehicle out of danger due to traffic accidents. When making an insurance claim, if it is found that the claim may be "strange" and refused to settle the claim, it is difficult to be identified only on the basis of the "road traffic accident identification" issued by the traffic police department in the lawsuit. Although the ''Road Traffic Accident Recognition Letter'' determines that the accident vehicle does not meet the safety technical conditions and has safety hazards, due to the lack of other evidence to strengthen it, the inspection conclusion after such an accident is usually determined in judicial practice as not belonging to the insurance exemption clause. The situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified. Therefore, in the process of informing the insurer of the relevant exemption clause, the insurance company needs to inform the insurer in detail and comprehensively, and should make a substantive and specific detailed explanation to the policyholder on the content of the exemption clause, and fix and retain the relevant evidence to prevent claims and litigation risks.
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Foreword Company shares are the shares held by shareholders in the company after the establishment of the company, which play an important role in proving the identity of shareholders. The dispute over requesting the company to acquire shares is a common dispute between the company and its shareholders (especially small and medium-sized shareholders) in practice. It occurs when the shareholders disapprove of the specific resolution of the shareholders' meeting. The purpose is to make the company evaluate the value of the shares held by the dissenting shareholders and purchase them at a fair price. Through this lawsuit, the dissenting shareholders are guaranteed to withdraw from the company in a reasonable and fair way of share compensation, while the withdrawal of dissenting shareholders also improves the efficiency of the company's decision-making and ensures the effectiveness of management. This article will analyze the dispute over the acquisition of shares by the requesting company from the aspects of legal provisions, litigation overview, dispute issues and decision rules for reference. Relevant provisions (I) related laws 1. the People's Republic of China Civil Procedure Law Article 26 Litigation arising from disputes over the establishment of a company, confirmation of shareholder qualifications, distribution of profits, dissolution, etc., shall be under the jurisdiction of the people's court of the place where the company is domiciled. 2. Company Law of the People's Republic of China Article 74 Under any of the following circumstances, a shareholder who votes against the resolution of the shareholders' meeting may request the company to purchase its equity at a reasonable price: (I) the company has not distributed profits to its shareholders for five consecutive years, and the company has made profits for the five consecutive years and meets the conditions for distribution of profits as stipulated in this Law; Merger, division or transfer of main property of the (II) company; (III) the term of business as stipulated in the articles of association expires or other reasons for dissolution as stipulated in the articles of association arise, the shareholders' meeting passes a resolution to amend the articles of association so that the company continues to exist. Within 60 days from the date of adoption of the resolution of the shareholders' meeting, if the shareholders and the company cannot reach an equity purchase agreement, the shareholders may bring a lawsuit to the people's court within 90 days from the date of adoption of the resolution of the shareholders' meeting. Article 142 A company may not purchase its own shares. However, any of the following circumstances shall be excluded: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies is necessary to safeguard the value of the company and shareholders' rights and interests. Where a company purchases its own shares under the circumstances specified in items (I) and (II) of the preceding paragraph, it shall be subject to a resolution of the general meeting of shareholders; where a company purchases its own shares under the circumstances specified in items (III), (V) and (VI) of the preceding paragraph, it may, in accordance with the provisions of the articles of association or the authorization of the general meeting of shareholders, be resolved by a meeting of the board of directors attended by more than 2/3 directors. After the company acquires the company's shares in accordance with the provisions of the first paragraph of this article, it shall be canceled within ten days from the date of acquisition if it falls under the circumstances of item (I); if it falls under the circumstances of items (II) and (IV), it shall be transferred or canceled within six months; if it falls under the circumstances of items (III), (V) and (VI), the total number of shares of the company held by the company shall not exceed 10% of the total issued shares of the company, and shall be transferred or canceled within three years. Where a listed company purchases its own shares, it shall perform its information disclosure obligations in accordance with the provisions of the the People's Republic of China Securities Law. Where a listed company acquires its own shares due to the circumstances specified in Items (III), (V) and (VI) of the first paragraph of this Article, it shall proceed through public centralized trading. (II) relevant judicial interpretation 1. Circular of the Supreme People's Court of China, on Printing and Issuing the Revised Provisions on the Cause of Action in Civil Cases 21. Disputes related to the company 268, request the company to acquire shares dispute. 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 3 The domicile of a citizen refers to the place where the citizen's household registration is located, and the domicile of a legal person or other organization refers to the place where the main office of the legal person or other organization is located. If the location of the principal office of a legal person or other organization cannot be determined, the place of registration or registration of the legal person or other organization shall be the place of domicile. Article 22 Jurisdiction shall be determined in accordance with the provisions of Article 26 of the Civil Procedure Law for lawsuits arising from disputes over records in the register of shareholders, requests for changes in company registration, shareholders' right to know, company resolutions, company mergers, company division, company capital reduction, company capital increase, etc. 3. (I) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 3 When the plaintiff brings a lawsuit to the people's court on the grounds stipulated in Article 22, paragraph 2, and Article 74, paragraph 2 of the Company Law, if the time limit stipulated in the Company Law is exceeded, the people's court shall not accept it. Provisions issued by regional courts in (III) 1. Opinions of the Higher People's Court of Shandong Province on Several Issues concerning the Trial of Company Dispute Cases (for Trial Implementation) 81. In the case of item (I) of paragraph 1 of Article 75 of the Company Law, if the company has not held a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the voting rights of the company may request the company to purchase its shares at a reasonable price. 82. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 83. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. 2. (II) of Opinions of Shanghai Higher People's Court on Several Issues Concerning the Trial of Litigation Cases Involving Companies Issues related to the handling of disputes over shareholders' rights and interests in 3. 3. If the shareholders' meeting of a limited liability company forms a resolution on the merger, division or amendment of the articles of association of the company, and it is difficult to transfer the shares held by the shareholders after the resolution, the shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire its shares. If the company has been profitable for many years and meets the conditions for the distribution of shareholders' surplus as stipulated in the Company Law, but the company does not distribute profits, the shareholders who meet the shares of the company as stipulated in the Company Law shall have the right to request the company to convene a shareholders' meeting to make a resolution; shareholders who vote against the resolution at the shareholders' meeting shall have the right to request the company to acquire their shares. 3. Guiding Opinions of the Higher People's Court of Jiangxi Province on Several Issues concerning the Trial of Company Dispute Cases (V) limited liability company share repurchase dispute 66. Under the circumstances of Item (I) of the first paragraph of Article 75 of the Company Law, if the company has not convened a shareholders' meeting for five consecutive years to make a resolution on the distribution of profits, shareholders holding less than one-tenth of the company's voting rights may request The company acquires its equity at a reasonable price. 67. If a shareholder files a lawsuit within the time limit specified in the second paragraph of Article 75 of the Company Law, the people's court shall not accept it. 68. If the shareholders require the company to acquire the equity in accordance with the provisions of Article 75 of the Company Law, but there is no consensus on the purchase price of the equity, the people's court shall support the shareholders' claim to determine the purchase price of the equity by way of evaluation. Other relevant provisions of the (IV) China Securities Regulatory Commission, Guidelines on the Articles of Association of Listed Companies Article 23 A company may purchase its shares in accordance with the provisions of laws, administrative regulations, departmental rules and these Articles of Association under the following circumstances: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies are necessary to safeguard the value of the company and shareholders' rights and interests. Except in the above circumstances, the company shall not purchase the shares of the company. A company issuing preferred shares shall also specify in its articles of association that the option to repurchase the preferred shares shall be exercised by the issuer or shareholders, and the conditions, price and proportion of the repurchase shall be specified. If the issuer requires the repurchase of preferred shares in accordance with the provisions of the articles of association, it must pay the dividends owed in full, except for the issuance of preferred shares by commercial banks to supplement capital. Summary of Litigation Plaintiff: Shareholder Defendant: Company Jurisdiction: by the people's court of the company's domicile Litigation request: 1. The defendant was ordered to purchase the defendant's shares held by the plaintiff at a reasonable price (subject to the assessed price, tentatively xx yuan). 2, the case acceptance fee, preservation fee and other litigation costs are borne by the defendant. Dispute Issues and Judgment Rules (I) Dispute Question 1: How is the price of the acquisition shares determined? Summary of the problem: According to Article 74 of the Company Law, shareholders should adopt a "reasonable price" when requesting a company to acquire shares, and according to the opposition interpretation of this provision, if shareholders do not adopt a "reasonable price" when requesting a company to acquire shares, the company has the right to refuse the acquisition. However, Article 74 of the Company Law does not further specify how to determine the "reasonable price", from the interpretation of the meaning of this provision, the "reasonable price" should be the price agreed by both parties, but not necessarily the price expressly agreed in the articles of association. For the company and its shareholders, the acquisition price can be called "reasonable" only if it does not harm the legitimate interests of the company or the shareholders, so it is necessary to make a certain balance between the interests of the company and the shareholders. Case: Zhao Zaiyue and Hailisheng Group Co., Ltd. requested the company to retry the civil judgment on the dispute over the acquisition of shares (case No.:(2017) Zhejiang Minzai No. 89; Trial court: Zhejiang Higher People's Court) First of all, Zhao Zaiyue advocates that determining the equity purchase price through third-party financial audit and asset evaluation is not the only way to judge the "reasonable price. If it is sufficient to determine a fair market price based on the circumstances of the case, there is no need to determine the purchase price of the equity by entrusting a third party to conduct an appraisal. Secondly, the reasonable price for the company to acquire the shares of the dissenting shareholders shall refer to the equity value calculated on the basis of the net assets of the company. Under the standard of the company's financial accounting system, the owner's equity in the balance sheet of the enterprise can reflect the real net assets of the company, even if the articles of association of the company do not agree on the purchase price of equity, there is nothing wrong with calculating the purchase price of equity on the basis of the owner's equity at the end of the year. Thirdly, at present, 21 natural person shareholders and 191 members of the shareholding association have accepted the price to transfer their shares, which to a certain extent confirms the true share price of the acquired shares in market transactions. (II) Disputed Question 2: What is the main reference to the transfer of main property under Article 74, paragraph 2, of the Company Law? Problem overview: What is the main property, the company law does not make clear. This leads to the need for judges to judge and identify the "main property" at their discretion in the process of handling specific cases. The discretion of the judge has led to the ambiguity of the criteria for the identification of the main property in judicial practice, and does the transfer of the main property simply refer to the sale? Is it a transfer to set up a company with another person in the form of in-kind capital contribution? It can be seen that Article 74 of the Company Law covers a narrow scope and cannot cover the problems that arise in the real process, such as asset restructuring, asset mortgage and other matters, in which case the interests of small and medium-sized shareholders are harmed, and there are doubts as to whether the provisions on share repurchase apply. In current practice, the court adopts two situations to determine the "main property": one is based on the "quantity" of the transferred property, and the other is based on the "quality" of the transferred property. Case: Zhongshan jielong kitchenware co., ltd. and Peng antao's request for the company to acquire shares (case no:(2016) yue 20 min zong no 4064; Trial Court: Zhongshan Intermediate People's Court of Guangdong Province) The court of second instance held that, first of all, the issue of whether the content of the resolution of the meeting belonged to the "transfer of major property" of Jielong Company. China's company law does not make a clear legal definition of the scope of the "transfer of the main property" of a limited liability company, the Court believes that whether the property transferred by the company is the main property, depending on whether the property transferred by the company affects the normal operation and profitability of the company, resulting in fundamental changes in the company. The business scope of Jielong Company is: production, processing, and sales of kitchenware and sanitary ware, and the content of the meeting resolution shows that Jielong Company "sold the equipment involved in the case to Zhang Hongmei at a price of 170518.46 yuan" and transferred bending machines, Shears, punches, argon arc welding machines, air compressors, wire drawing machines and other main production and operation equipment, not the products in its business scope, the transfer also did not involve the upgrading of the company's production equipment; and, in the second instance, Jielong confirmed that after the equipment involved was sold to Zhang Hongmei in May 2015, Jielong had ceased normal operations. Obviously, the property transferred by Jielong Company has affected the normal operation and profitability of the company, resulting in fundamental changes in the company, which has constituted the "transfer of main property" of the company in Article 75 of the Company Law of China. comment and analysis In practice, the determination of "reasonable price" is generally determined by reference to the fair market price of the acquired shares; when there is no fair market price for the acquired shares, it should be determined by reference to the fair market price of the shares of similar companies; when there is no fair market price for the shares of similar companies, it can be determined by reference to the company's establishment, operating conditions, the market value of the company's realizable assets, the market value of the company's net assets and other factors; in addition, in the absence of relevant factors to refer to, you can apply to an independent third-party audit institution for audit confirmation or apply to the court for judicial confirmation to determine. In addition, for the determination of "transfer of main property", it is more reasonable to take the "quality" of the transferred property as the criterion, that is, a comprehensive examination should be made of the extent to which the assets involved affect the operation, survival and interests of the company and shareholders.
2021-12-11
10
2021-12
At 20 o'clock on December 8, "Model 6" (special program for the 100 anniversary of the founding of the party) jointly recorded by the Central Organization Department and China Central Radio and Television was premiered on the CCTV Comprehensive Channel. The party branch of Shandong Zhongcheng Qingtai (Dezhou) Law Firm Organized all lawyers to watch, which triggered a warm response. The "Model 6" program focuses on publicizing the typical deeds of the winners of the "July 1st Medal" and the national "two excellent and one first" commendation targets. Through the reproduction of typical deeds, on-site interviews, and revisiting the party oath, it demonstrates the firm belief and responsibility of outstanding Communist Party members. The spirit of acting, serving the masses, and hard work and dedication profoundly interprets the persistence and persistence of the Chinese Communists in not forgetting their original aspirations and keeping their mission. Everyone agrees that the story of the example is touching, and the guidance of the example is deeply rooted in the hearts of the people. As a lawyer, you must take the advanced model as an example, raise your own awareness, strictly observe the bottom line of discipline, and build a modern socialist country in an all-round way and realize the Chinese dream of the great rejuvenation of the Chinese nation. Make new and greater contributions.
2021-12-10
Zhongcheng Qingtai Jinan Region
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