Civil and commercial perspectives | How to crack the visitation rights puzzle

Recently, the author received two consultations on the exercise of visitation rights. The content of the consultation was: the party who did not raise children after divorce wanted to exercise visitation rights, but the party who raised children refused to cooperate. Although they are all related to the exercise of visitation rights, their handling methods also vary due to the different agreements or judgments on the time and manner of exercising visitation rights at the time of divorce. Legal basis for 1. visitation rights Article 10286 of the the People's Republic of China Civil Code stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist." 2. cases In combination with the relevant laws and regulations, this paper makes a simple analysis of two cases concerning the exercise of visitation rights, hoping to inspire readers to solve the problem of visitation rights. Case 1: Both Zhang and Sun were divorced by the court in March 2022. The judgment also ordered the legitimate child Zhang to be raised by his mother Sun. Zhang paid 1800 yuan at the end of each month and enjoyed the right of visitation. After the verdict came into effect, Zhang lived with Sun and his family. During this period, Zhang went to visit his married son Zhang many times but failed. In order to realize the right to visit, Zhang applied to the court for enforcement based on the effective judgment, but because the judgment did not make a judgment on the specific time and method of exercising the right to visit, the court rejected his application for enforcement. In order to realize his visitation rights, Zhang had to file a visitation rights dispute lawsuit to the court, and the court filed a case. What makes Zhang puzzled is: Why can't he directly apply for enforcement, but need to file a visit right lawsuit? Case 2: Ning and Wang registered for marriage in December 2018 and gave birth to a daughter, Ning, in October 2019. In September 2022, the two divorced through mediation by the people's court. The mediation statement stated: "The legitimate daughter Ning Moumou is raised by Wang Mou. Ning Mou bears the maintenance fee of 2000 yuan every month until the child is 18 years old. Ning Mou has the right to visit the legitimate daughter and can visit once a month (pick up at 9:00 on Saturday at the end of the month and return at 17:00 p.m.)". However, after the two parties dissolved their marriage, Wang refused to cooperate with Ning to exercise visitation rights. In order to realize the right of visitation, Ning applied to the court for enforcement according to the effective mediation. Because the mediation clearly recorded the specific time and method of exercising the right of visitation, the court accepted Ning's application for execution. Brief Analysis of 3. First of all, at the time of divorce, the specific time and manner of exercising visitation rights should be clarified. From the previous two cases, it can be seen that if the driving time and method of the visitation right are not clear during the divorce, and the party who does not raise the children is blocked from exercising the visitation right to apply for enforcement, the court will not accept it, and the parties have to file a separate visitation right dispute lawsuit. Therefore, in order to avoid the exercise of visitation rights after divorce is blocked, the specific time and manner of the exercise of visitation rights should be clarified at the time of divorce. Secondly, the visitation right is not only the legal right of the party who does not raise the children, but also the protection measure for the minor children whose parents divorce. The provisions of the the People's Republic of China Civil Code on visitation rights not only protect the basic rights of parents, but also protect the rights of minor children through legislation, and minimize the harm caused by parents' divorce to minor children. The divorce of the parents cannot block the relationship between the father or mother who does not raise the child and the child. Finally, the enforcement measures taken by judges in the enforcement of such cases. For the executor who has the obligation to pay after divorce but fails to fulfill the obligation to pay, the enforcement judge will first clearly inform him that the enjoyment of rights and the performance of obligations are equal, and that if there is a need to bear child support, it must be paid in accordance with the contract. For the parties who refuse to cooperate with the visit, the executive judge will usually have an in-depth understanding of the actual situation of the contradiction between the two parties, patiently and meticulously do the ideological work of the parties, and resolve the parties' grievances about marriage, the other party and the other party's family. At the same time, it will also explain to the party who refuses to cooperate with the other party in exercising the right of visitation. Although both parents choose to divorce for various reasons, they cannot artificially interfere with the other party's comfort and care for the child, and should be allowed to bridge the relationship with the child through visitation. "Family affection" reduces the contradiction of children's visitation rights from the perspective of being conducive to the growth of children. For parties who have no justifiable reasons and have exhausted their ideological work, but still clearly oppose law enforcement and refuse to allow applicants to visit their children, the enforcement judge will punish them in accordance with the law and impose penalties such as fines and detention in due course. Article Link 1. Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code Article 61 The people's court may take compulsory measures in accordance with the provisions of Article 111 of the Civil Procedure Law for parties or other persons who refuse to perform or hinder others from performing their child support obligations in effective judgments, rulings, or mediation documents. Article 65 If the right of visitation is not involved in the effective divorce judgment made by the people's court, and the party concerned brings a separate lawsuit on the issue of the right of visitation, the people's court shall accept it. 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 5103: "If the person subjected to execution fails to perform the act specified in the legal document, and the act can only be completed by the person subjected to execution, the people's court may deal with it in accordance with the provisions of paragraph 6 of paragraph 1 of Article 114 of the Civil procedure Law." (3) the People's Republic of China Civil Code Article 10286 stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist."

2022-11-09

Viewpoint... The legal effect of an unregistered mortgage on the intended real estate.

The legal effect of 1. real estate mortgage contract. People's Court Press, December 2018, 1st edition, "Minutes of the Judges Meeting of the Second Civil Trial Division of the Supreme People's Court", page 241: "The establishment of a real estate mortgage is necessary for registration. If a mortgage contract is signed but the mortgage is not registered, the mortgage The right has not been established, and creditors who claim to enjoy the mortgage right shall not be supported. However, whether or not it is registered does not affect the validity of the mortgage contract, which, when validly established, is binding on both parties........." Article 60 of the Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254): "If a real estate mortgage contract is established in accordance with the law, but the mortgage registration procedures have not been completed, and the creditor requests the mortgagor to go through the mortgage registration procedures, the people's court shall support it in accordance with the law........." Article 46, paragraph 1, of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code (Law Interpretation No. 2020): "If the mortgage registration procedures have not been completed after the entry into force of the real estate mortgage contract, and the creditor requests the mortgagor to go through the mortgage registration procedures, the people's court shall support it." The conclusion of a real estate mortgage contract is a civil legal act of the parties to the contract, which is legally binding as long as it meets the conditions set out in Article 134 of the Civil Code. The Supreme People's Court has repeatedly stated in the above-mentioned judicial policy documents and judicial interpretations that the conclusion of a real estate mortgage contract and the registration of mortgage rights are two relatively independent civil legal acts. The former is an act of creditor's rights and the latter is an act of property rights. The act of creditor's rights is the cause of the act of real right, and the act of real right is the result of the actual performance of the act of creditor's rights. If the real estate mortgage contract is established in accordance with the law and is actually performed (mortgage registration), the real estate mortgage is established, and if the mortgage is not actually performed, the mortgage is not established but does not affect the legal effect of the mortgage contract. Whether the 2. fails to perform its registration obligations under the mortgage contract and is liable for breach of contract People's Court Press, December 2018, 1st edition, "Supreme People's Court Civil Trial Second Division Judges Meeting Minutes", page 241: "...... If the mortgagor is obliged to register the mortgage according to the contract, but cannot register the mortgage due to the loss or transfer of the mortgage, the mortgagor shall bear the corresponding liability for breach of contract and compensate the creditor for the loss of the performance of the interests to the extent of the value of the mortgage........." Article 60 of the Minutes of the National Court Conference on Civil and Commercial Trial (Law [2019] No. 254): "...... If the mortgage registration cannot be handled due to the loss of the mortgaged property and the transfer of the mortgaged property to another person, and the creditor requests the mortgagor to assume the liability within the limit of the value of the mortgaged property, the people's court shall support it in accordance with the law, but the scope shall not exceed the liability that the mortgagor" Article 46, paragraphs 2 and 3 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code (Fa Shi [2020] No. 28): "If the mortgaged property is lost or expropriated due to reasons not attributable to the mortgagor itself, and the creditor requests the mortgagor to assume responsibility within the agreed scope of the guarantee, the people's court shall not support it; however, if the mortgagor has received insurance money, compensation or compensation, etc., and the creditor requests the mortgagor to bear the liability for compensation within the amount received, the people's court shall support it in accordance with the law. If the mortgage registration cannot be processed due to the mortgagor's transfer of the mortgaged property or other reasons attributable to the mortgagor itself, the creditor requests the mortgagor to assume responsibility within the agreed scope of the security, the people's court shall support it in accordance with the law, but shall not exceed the scope of responsibility that the mortgagor should bear when the mortgage can be established." Due to the failure to fulfill the registration obligations stipulated in the mortgage contract, the real estate mortgage cannot be established, but the real estate mortgage contract is still valid. Can creditors hold the mortgagor liable for default? The minutes of the meeting of the judges of the Second Civil Division of the Supreme People's Court and the minutes of the National Court's Civil and Commercial Trial Work Conference held that: due to the loss of the mortgage and the transfer of the mortgage to another person, the creditor has the right to require the mortgagor to bear the liability for breach of contract to the extent of the value of the mortgage. The contents of paragraphs 2 and 3 of Article 46 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code (Fa Shi [2020] No. 28) respectively stipulate whether the mortgagor is at fault for failing to perform the registration obligation stipulated in the mortgage contract, and whether to bear the liability for breach of contract: if the mortgagor is not at fault for failing to register, the mortgagor shall bear the liability for breach of contract to the limit, if there is no substitute, the mortgagor shall not be liable; if the mortgagor is at fault for failure to register, the mortgagor shall be liable for breach of contract, and the scope of liability for breach of contract shall be the scope of the security agreed upon in the mortgage contract, but shall not exceed the scope of liability that the mortgagor shall bear when the mortgage can be established. The mortgagor's liability for breach of contract is limited by factors such as the value of the collateral, the agreed scope of security, and the expected benefits of the contract. The mortgagor's liability for default is reflected in the part that the principal debtor cannot pay off, I .e. the creditor has the right to require the mortgagor to be liable for the debts that the principal debtor cannot pay off, up to the value of the collateral. The mortgagor's liability for breach of contract is filled, predictable and restrictive. This liability for breach of contract can be understood as a general guarantee to the extent of the guarantee and the value of the collateral. (2019) The main points of the Supreme Court Civil Judgment No. 2025 and the 2017 Supreme Court Civil Judgment No. 2340 also hold this view.

2022-11-09

Real Estate Perspective... Does the property company need to bear the responsibility for the loss of decoration downstairs caused by the blockage of the pipeline and the return of water?

1. Introduction The disputes caused by pipeline blockage are increasing day by day, and the phenomenon of the owner's public sewer pipeline blockage is particularly prominent. Blocking the return water will not only cause the blockage of the house to soak, but also leak to the adjacent residents, causing the loss of decoration downstairs. In view of this kind of water leakage incident, the owner sued the court and asked the upstairs residents and the property company to bear the liability for damages. The property company believes that the pipeline blockage is located in the exclusive part of the owner's house, which does not belong to its service scope and has no management and maintenance obligations. In that case, does the property company need to bear the responsibility for the decoration loss of the owner downstairs? 2. Cases and Referee's Point of View The (I) property company has the obligation to maintain and maintain the sewage pipeline. If it fails to prove that it has fulfilled the obligation of maintenance and maintenance, and is at fault for the occurrence of the damage consequences, it shall be liable according to the degree of fault. Case 1: Dispute over Compensation for Property Damage by Han Yanzhong and Chen Zenghuai (Weihai Intermediate People's Court of Shandong Province [2022] Lu 10 Min Zhong No. 1550) Referee's point of view: Yintan Property Company, as the property management company of the residential area where Chen Zenghuai lives, maintains, repairs, serves and manages the public facilities and equipment of the community. Although the sewage pipe is located in the owner's home, it cannot be used by one owner alone, so it cannot belong to the owner's exclusive part and should be a common part. In this case, the vertical main road located in the owner's home is the main drainage pipe used by the residents of the building involved in the lawsuit, which should belong to the public facilities maintained and managed by Yintan Property Company. Yintan Property Company's defense claim that the pipeline involved in the case belongs to the owner's exclusive part is unfounded in law and will not be supported. Silver Beach Property Company has the obligation to maintain and maintain the common drainage pipes involved in the above case. At present, Yintan Property Company has not submitted relevant evidence to prove that it has fulfilled the above-mentioned maintenance and maintenance obligations and is at fault, and should be liable for compensation for Chen Zenghuai's property losses. The court of second instance upheld that the blocked sewage pipeline was a common part. As the property service provider, Yintan Property Company has the maintenance obligation and shall be responsible for improper maintenance for the damage consequences involved in the case. In this case, the cause of the pipeline blockage could not be found out. The accident occurred in winter. The existing evidence showed that the property company did not take thermal insulation measures for the sewage pipeline. There was no other evidence to prove that it had fulfilled its maintenance and maintenance obligations and was at fault for the loss. The court considered that it should bear 50% of the responsibility for the accident based on the evidence in the case and life experience. Case 2: Dispute over Property Damage Compensation between Zhang Xiaoyan, Fan Kai and Inner Mongolia Nailun Property Service Co., Ltd. (Inner Mongolia Autonomous Region Higher People's Court [2020] Neimin No. 90) Referee's point of view: Nailun Property Company, as a property service enterprise in the residential area where Zhang Xiaoyan and Fan Kai live, has the obligation to maintain and repair the water supply and discharge pipelines to ensure the smooth flow of public water supply and discharge pipelines. Drainage through pipelines is the right of all residents. The normal discharge of sewage by residents through public sewer pipelines does not necessarily lead to pipeline blockage. As a property service enterprise hired by the owner, Nailun Property Company, if it can actively perform its daily dredging and inspection obligations, the damage in this case will not necessarily occur. In the previous trials in this case, Nailun Property Company did not submit evidence to prove that it performed this duty. Nailun Property Company did not fully perform its daily maintenance and management duties, resulting in the loss of 103 room due to the overflow of sewage from the 203 room kitchen. Nailun Property Company proposed that the upstairs residents should be responsible, but did not provide evidence to prove it. Although Nailun Property Company carried out some investigation work after finding the water leak and also notified Zhang Xiaoyan to go home for inspection, it did not take further appropriate measures such as notifying the residents upstairs to stop using the water pipes and dredging the water pipes in time to reduce the damage consequences when there was a great possibility of blockage of the water pipes after the investigation. Nairun Property Company is at fault for failing to properly perform its legal and contractual obligations, and there is a causal relationship between the behavior and the result of the damage. As the person responsible for the management of public facilities in the community, it should be mainly liable for the damage. In this case, Zhang Xiaoyan's 203 room and Fan Kai's 103 room were uninhabited for a long time, and the water supply and discharge were not blocked in the self-use part of Zhang Xiaoyan's house. The reason for the story was that the public water supply and discharge pipes were not blocked. As the manager of public facilities, Nailun Property Company did not submit evidence to prove that it fulfilled its obligation to dredge the pipes and assumed the main responsibility for the accident. (II), if the evidence provided by the property company is not sufficient to prove that the management obligation has been reached before the incident, or there are other faults that cause the damage, it shall also be liable for damages. Case 1: Zhao Jinsheng, Rushan Haojie Property Service Co., Ltd. and other civil judgments of second instance on property damage compensation disputes (Weihai Intermediate People's Court of Shandong Province [2022] Lu 10 Min Zhong No. 17) Judging from the agreement of the "Property Management Service Contract for Daqing Yiyuan Community and Jingyuan Community in Rushan City", Haojie Property, as the property management company of the community involved in the case, shall perform the maintenance of the building and its ancillary facilities, The statutory and contractual obligations of property services such as environmental sanitation and related order management and maintenance. In the first instance, Haojie Property recognized the company's obligation to maintain the pipeline involved, and the pipeline involved could not be determined by identification and other means because it had been unblocked. Therefore, Haojie Property claimed that it had no obligation to maintain and manage the pipeline involved, and the court did not support it. Evidence provided by Haojie Property can also confirm that the pipelines involved have been corroded for a long time and have been blocked many times since 2019. Although Haojie Property claimed that it had already maintained and overhauled the pipelines involved, it provided an on-site maintenance video, but the video was used to dredge the pipelines involved after the incident, and other evidence provided by Haojie Property was not sufficient to prove that it had fulfilled its obligations of prompting, maintenance and management before the incident. Therefore, the court of first instance found that Haojie Property did not timely maintain and repair the pipelines involved and fundamentally eliminate the faults, and did not timely find out the soaking conditions in the homes of Suo Yongxiang and Li Hong. It was at fault for the occurrence of damage consequences and should appropriately bear the liability for damages. There was nothing wrong with it, and the court maintained it. During the first instance of this case, the court found that the sewer involved in the case had been blocked, but the property company did not completely eliminate the fault, and the maintenance records provided by the property company after the incident were not enough to confirm that it had fulfilled its prompt, maintenance, and maintenance before the incident. Management obligations. During the second instance, although the property company provided the water supply and drainage inspection and maintenance records of the residential area involved in the case, it did not provide it in the first instance, which is not new evidence, and the property company did not give a reasonable explanation, so the court of second instance did not accept it. Case 2: Civil Judgment of First Instance on Property Damage Compensation Dispute between Zhang Jianxin, Wei Rongfang and Shanghai Wanya Property Management Co., Ltd., Gu Nanhong (Shanghai Pudong New Area People's Court [2020] Shanghai 0115 No. 31086 Minchu) The referee's point of view: the leakage area is the lowest exit of the drainage riser of the whole building. although the defendant wan ya property provided its regular inspection records of dredging the sewer pipe, it could not prove that it kept the main sewer pipe unblocked all the time, especially failed to find out the hidden danger of leakage caused by the residents' conversion of laundry into cloakroom in time. therefore, the hospital believed that wan ya property company failed to fulfill the relevant maintenance and maintenance agreements of the property service contract, the plaintiff shall also be liable for the losses. In this case, the plaintiff, defendant Gu Nanhong and Qiu Tianhao all converted the laundry area of the north room into a cloakroom. Although the property company provided regular inspection records for dredging the sewer pipes, it did not earnestly fulfill the relevant maintenance and maintenance agreements of the property service contract, and promptly discovered the hidden risks of household decoration and reconstruction, and was at fault for the occurrence of this water leakage accident. Bear the corresponding responsibility. (III) the property company proves that it has fulfilled the obligation of proper maintenance and communication and coordination, and that there is no fault in the occurrence of the damage consequences, it shall not be liable. Case 1: Dispute over Compensation for Property Damage by Li Gang and Zheng Pengcheng (Shouguang Municipal People's Court of Shandong Province [2022] Lu 0783 Minchu No. 2910) Referee's point of view: For the plaintiff's claim of fault liability based on the negligence of the maintenance and repair duties of Zhongnan Property Company. After examination, the court held that if the perpetrator infringes upon the civil rights and interests of others by fault and causes damage, he shall bear tort liability. The proof of the property company is sufficient to prove that it has fulfilled its obligations of proper maintenance and communication and coordination, and there is no fault in the occurrence of the consequences of the damage, so the plaintiff claims that it is liable for compensation, and the rationale is insufficient, and the court does not support it. In this case, after the property company found water seepage, it contacted the owner in time, dredged the pipeline, and cleaned up the blockage as leftovers and oil stains. During the trial, the property company provided a copy of the house purchase contract, the owner's management manual, WeChat chat records, photos, and regular dredging records to prove that it has fulfilled its obligations of proper maintenance and communication and coordination, and is not at fault for the damage results and is not responsible. Case 2: dispute over compensation for property damage between Bei Di and Beijing Purui Property Management Co., Ltd. (Beijing Higher People's Court (2021) Jingmin Shen No. 3670) Referee's point of view: on the question of whether Preh Property Company should be liable for the loss of water leakage in the house involved. According to the facts found out, house 304 has been reported for repair many times due to water leakage. after receiving the water leakage report, preh property company carried out various work such as inspection, coordination with the maintenance personnel of the heating company for investigation, water absorption treatment, etc. to alleviate and solve the water leakage situation of the house involved. It can be seen that Preh Property Company has taken active measures in a timely manner on the leakage of the houses involved, fulfilled the corresponding management, maintenance, inspection and other property service obligations, and achieved certain results. Combined with the application form for decoration of No. 404 and No. 504 houses and the evidence such as decoration acceptance and settlement form, it can be concluded that Preh Property Company has informed the matters needing attention in the relevant decoration behavior, and there is no case of neglecting to perform the property service obligations, and there is no need to be responsible for the leakage losses of the houses involved. In this case, the property company promptly took positive measures on the leakage of the house involved in the case, informed the matters needing attention in the decoration behavior, and fulfilled the corresponding property service obligations such as management, maintenance and inspection, so it did not need to bear the responsibility. 3. Summary Article 56 of the property management regulations of Shandong Province stipulates that "the contents of property services mainly include the following matters: (1) the use, management and maintenance of common parts of the property and common facilities and equipment; the maintenance of (II) public greening; the maintenance of environmental sanitation in (III) public areas; the assistance and management services for the maintenance of order and safety precautions in (IV) public areas; (V) the obligations of stopping and reporting prohibited acts in the use of property; (VI) the accounting management of property maintenance, renewal and renovation costs; (VII) property service files and the custody of property files; (VIII) other property service matters". It can be seen that the property company has legal obligations to manage and maintain the shared facilities and equipment in the community. The main drainage and sewage pipes used by the residents in the community belong to public facilities. The property company should manage and maintain them and ensure smooth flow. The "Standard for Property Management Service Level of Ordinary Residential Quarters" (for Trial Implementation) issued by the China Property Management Association stipulates that shared rain and sewage pipes shall be dredged once a year, and rain and sewage wells shall be inspected once a month/quarter/half a year according to different grade standards, and shall be cleared in time according to the inspection situation. Property companies should also refer to industry standards and be responsible for cleaning and dredging pipelines in the community. The "Property Service Contract" and "Preliminary Property Service Agreement" clearly stipulate the property service quality standards with reference to the property service level standards issued by various cities. For example, the property service agreement in Jinan City stipulates that the property service standards provided reach the five-star standard stipulated in the "Jinan City Ordinary Residential Property Service Grade Standard" (Jijiafei Zi [2012] No. 76), which specifies that the property company should check the rainwater pipes, septic tanks and other parts once a quarter and clean them twice a year to ensure smooth drainage and no blockage. Therefore, based on the contract, the property company should also assume the management and maintenance obligations of the public sewer. Article 35 of the "Property Management Regulations" stipulates that "property service companies shall provide corresponding services in accordance with the provisions of the property service contract. If the property service enterprise fails to fulfill the agreement of the property service contract, resulting in damage to the personal and property safety of the owner, it shall bear the corresponding legal liability in accordance with the law." therefore, if the property company fails to perform its obligations in accordance with the contract, it shall be liable for the property loss of the owner downstairs if it is at fault. 4. Risk Alert With the increasing number of similar disputes, property companies should pay attention to strictly in accordance with legal provisions, contractual agreements and industry standards to perform maintenance and management obligations, regularly dredge pipelines, clear them as appropriate, and keep regular maintenance records. At the same time, the property company should strengthen regular inspections and check the risk of water leakage, notify the relevant owners in time after finding abnormalities, and assist in dredging the pipeline to avoid further expansion of losses. In case of similar disputes, the property company shall do a good job in retaining relevant evidence, and effectively record and preserve the on-site cleaning process and the items cleaned up. If the lawsuit is involved in the later period, the property company can submit to the court regular pipeline dredging records, on-site photos, communication and coordination records, photos, videos and other evidence to prove that it has fulfilled its obligations to manage and maintain the pipelines involved before the incident, avoided its own risks, and also helped the court to better find out the facts of the case and the cause of the blockage, and clearly define the responsibilities of all parties.

2022-11-04

Viewpoint... An analysis of the subject qualification of the parties in the derivative litigation of limited partners.

Introduction Article 68 of the the People's Republic of China Partnership Act provides for a system of derivative litigation for limited partners, which gives limited partners the right to sue in their own name on the basis of the interests of the partnership if the executive partner neglects to exercise his rights. In the limited partner derivative litigation, the litigation participants generally include the plaintiff, the defendant and the partnership itself, but there are no clear legal provisions on how to determine the subject of the plaintiff, the scope of the defendant and the litigation status of the partnership itself, and there are also some disputes in the theoretical and judicial practice. The plaintiff's subject qualification of the derivative action of the 1. limited partner. According to section 68 of the the People's Republic of China Partnership Act, the subject of a limited partner derivative action is the limited partner. It is not controversial for a limited partner to bring a lawsuit as a plaintiff in his or her own name, but certain conditions must be met in order to be considered a qualified plaintiff. 1. Have direct limited partner status A limited partner derivative action is a lawsuit brought by a limited partner in his own name and for the benefit of the partnership. As the name implies, the limited partner who brings the lawsuit must be the limited partner whose interest belongs to the partnership, that is, the plaintiff shall be the property share holder of the partnership, and the holding shall be directly held. The party who indirectly holds the property share of the partnership is not a qualified plaintiff in the derivative action of the limited partner. In (2021) Yue 01 Min Zhong No. 26437 case, the Guangzhou Intermediate People's Court held that the case was a partnership contract dispute. According to the relevant provisions of the the People's Republic of China Partnership Law, when the rights and interests of the Shengzhan enterprise were infringed, the limited partners of the Shengzhan enterprise All partners can claim rights or file a lawsuit against the responsible partner; if Wu Xinfeng, the executive partner of the Shengzhan Enterprise, is lazy in exercising rights, the limited partner may urge him to exercise his rights or bring an action in the limited partner's own name for the benefit of the enterprise. According to the facts ascertained in the original trial, the five appellants in this case are limited partners of Wuhu Kangsheng Center, not limited partners of Shengzhan Enterprise, nor executive partners of Wuhu Kangsheng Center, and the five appellants are not qualified plaintiffs in this case. 2. The litigation process should continue to have limited partner status. As far as the subject of litigation is concerned, a limited partner who brings a limited partner derivative action should always have the status of a limited partner of the partnership until the end of the proceedings, and if he withuses from the partnership in the course of litigation, he will no longer have the basis of rights for the benefit of the partnership, that is, he will lose the qualification of the corresponding derivative subject. In addition, in practice, it is questioned whether the limited partner has not become a limited partner at the time of the infringement of the partnership, and then the new partner has become a limited partner of the partnership, whether this situation has an impact on the subject qualification of the limited partner to bring a derivative action. It is generally held that a limited partner who continues to have the status of a limited partner from the time of filing a lawsuit to the end of the procedure is a qualified plaintiff in a derivative action of a limited partner, so whether he or she has the status of a partner at the point of damage to the interests of the partnership does not affect the qualification of the limited partner as a subject of litigation. 3. Generally should be a "named" limited partner. As for whether the dormant limited partner can bring a derivative action, there is no clear stipulation in the current laws and regulations. However, referring to the shareholder representative action, there may be some obstacles for the dormant limited partner to bring a derivative action (only different identification of internal and external disputes of the partnership enterprise without registration, identification of non-qualified plaintiff subject in the case of dormant holding). Therefore, in the derivative action of the limited partner, the subject of a suitable plaintiff to bring a lawsuit shall generally be a limited partner who has been registered in industry and commerce. In the case of (2016) Beijing 0107 Minchu No. 14917, the Beijing Shijingshan District People's Court held that Article 66 of the Partnership Law stipulates: "The registration of a limited partnership shall contain the name or name of the limited partner. And the amount of capital contribution subscribed". This clause provides that when a limited partnership is registered, the limited partner's contribution must be registered. The registration of an enterprise has statutory external effect and is the criterion for determining whether it has the status of a limited partner of an enterprise. In this case, Song Qifeng invested in Hongxin Management Center and signed a Partnership Agreement, but Hongxin Management Center did not register Song Qifeng as a limited partner. Therefore, Song Qifeng is not a qualified plaintiff in a limited partner derivative action. In summary, in the absence of other special considerations, it is generally believed that as long as the limited partner status (directly holding a share of the partnership property and registered with the industry and commerce) continues from the time of the litigation to the end of the proceedings, the limited partner should be considered a qualified plaintiff to bring a derivative action. As to the proportion of the limited partner's share of the partnership property and whether the other limited partners of the partnership unanimously agree to file a derivative action, it does not affect the qualification of the limited partner as the subject of litigation, which is in line with the legislative intent of the the People's Republic of China Partnership Law and is recognized and followed in judicial practice. In the case of (2016) Supreme People's Court No. 756, the Supreme People's Court held that the relationship between Jiao and Li and Hexin Investment Center is not the relationship between creditors and debtors, but the relationship between limited partners and partnerships. The provisions of Article 73 of the the People's Republic of China Contract Law cannot be applied. The Beijing Hexinhengxuan Investment Center (Limited Partnership) Partnership Agreement stipulates that a limited partner has the right to urge him to exercise his rights or to file a lawsuit in his own name for the benefit of the enterprise when the executive partner is negligent in exercising his rights, and does not require the unanimous consent of all limited partners to file a lawsuit. Article 68, paragraph 2, paragraph 7, of the the People's Republic of China Partnership Law stipulates that when an executive partner neglects to exercise his rights, the limited partner urges him to exercise his rights or to bring a lawsuit in his own name for the benefit of the enterprise, which shall not be regarded as the execution of partnership affairs. This provision gives the limited partner of the partnership the right to sue on behalf of the partnership in his own name and does not limit his or her claim to the extent of his or her personal contribution, as long as the requirement is met for the benefit of the partnership. Jiao and Li filed a lawsuit on behalf of Hexin Investment Center, which not only complied with the agreement of the "Beijing Hexin Hengxuan Investment Center (Limited Partnership) Partnership Agreement", but also did not violate the provisions of the "the People's Republic of China Partnership Law", so they rejected Anhui Ruizhi Real Estate Development Co., Ltd.'s appeal that Jiao Jian and other limited partners were not qualified as the subject of litigation. The scope of the defendant's subject in the derivative action of the 2. limited partner. With regard to the subject of the defendant in a derivative action of a limited partner, the the People's Republic of China Partnership Law does not specifically provide for this, but under article 68 of the the People's Republic of China Partnership Law, the defendant in a derivative action of a limited partner shall be a party to the detriment of the interests of the partnership. It is generally believed that the defendants of limited partner derivative litigation should include two types, one is the third party outside the partnership, that is, the third party that has a creditor's rights and debts relationship with the partnership or infringes on the rights and interests of the partnership, and the other is the interested party within the partnership, that is, the partner who has a creditor's rights and debts relationship with the partnership or damages the interests of the partnership through improper behavior. In addition, it has been argued that the premise of a derivative action by a limited partner is that "the executive partner is negligent in exercising his rights", so the scope of the defendant in a derivative action does not include the executive partner, I .e. the general partner. The author believes that this view misinterpret the normative connotation of Article 68 of the the People's Republic of China Partnership Law. Limited partner derivative litigation is the right granted by law to limited partners to file litigation in their own name when the interests of the partnership are damaged due to the negligence of the executive partner. The executive partner is also a party potentially damaging the rights and interests of the partnership. If it is excluded from the scope of the defendant in derivative litigation, it would not be conducive to the protection of the rights and interests of the partnership and other partners, nor would it be consistent with the legislative intent of the limited partner derivative action. Litigation status of 3. partnerships In view of the fact that the partnership is the subject of the interest of the limited partner derivative action, and in order to find out the facts of the case, in judicial practice, the partnership is generally listed as the third party of the limited partner derivative action. However, the partnership participates in the derivative litigation of the limited partner as a third party, and there are still disputes and practical dilemmas in the theoretical circle: if the partnership is a third party with an independent claim, there is a conflict with the plaintiff, I .e. the limited partner, in the derivative litigation; if the partnership is a third party without an independent claim, it is contrary to the ownership of the derivative litigation interests. In addition, there are also views that the partnership should participate in the derivative proceedings as a witness, only to ascertain the facts of the case. Litigation status of 4. other partners Regarding the legal status of other partners of the partnership in the derivative litigation of limited partners, as far as judicial practice is concerned, there are mainly the following treatment methods: for other limited partners of the partnership, they have the right to participate in the litigation as the plaintiff together with the limited partner who filed the derivative litigation, or as a third party without independent claim; for the general partner of the partnership, because he does not have the status of limited partner, therefore, it can only participate in derivative actions as a third person without an independent claim, except where the limited partner brings a derivative action against the general partner as a defendant.

2022-11-04

Dynamic | Director Geng Guoyu of Zhongcheng Qingtai Jinan Institute was invited to carry out Xi Jinping's rule of law propaganda for Jinan's financial department.

In order to further study, publicize and implement Xi Jinping's thoughts on the rule of law, and cultivate and build a high-quality financial work team with both ability and political integrity, on November 3, 2022, the Jinan Municipal Finance Bureau organized a special lecture on Xi Jinping's thoughts on the rule of law, inviting Zhongcheng Qingtai (Jinan) Law Firm Party Secretary and Director Geng Guoyu gave a special lecture. Che Xiqi, member of the Party Group of the Municipal Finance Bureau and Director of the Municipal Government and Social Capital Cooperation Service Center, presided over the lecture. Members of the leading group of the Bureau, responsible persons of various departments and institutions affiliated to the Bureau attended the meeting in the main venue, cadres at or above the deputy department level of the Bureau system attended the meeting in the sub venue, and members of the leading group of the financial departments of all districts and counties and heads of various departments participated in the study in the form of video. Director Geng Guoyu closely focused on the great significance, core essence, spiritual essence, rich connotation and practical requirements of Xi Jinping's rule of law thought, accurately publicized and interpreted the strategic priorities, major rule of law measures, and major relationship issues proposed by Xi Jinping's rule of law thought, and deeply grasped the current and future period. Promote the "eleven persistence" of comprehensively governing the country according to law, and promote the study, propaganda and implementation of Xi Jinping's rule of law, effectively transform Xi Jinping's thought of the rule of law into a vivid practice of building a rule of law finance. Through this presentation, all the participants had a deeper understanding and understanding of the profound connotation and spiritual essence of Xi Jinping's rule of law thought, and improved the ability and level of financial cadres to use rule of law thinking and methods.

2022-11-04

The Power of Public Welfare | Zhou Jiakui, Deputy Director of Zhongcheng Qingtai Jinan Institute, was invited to give a special lecture on Xi Jinping's rule of law thought to the "Cadre School" of Jinan Administrative Examination and Approval Service Bureau.

In order to deepen the study and education of Xi Jinping's rule of law thought, and enhance the political consciousness, ideological consciousness and action consciousness of cadres and workers in administration according to law. On November 2, lawyer Zhou Jiakui, deputy director of the Civil Committee of the Shandong Lawyers Association and deputy director of Zhongcheng Qingtai (Jinan) Law Firm, was invited to give a special lecture on Xi Jinping's rule of law to the "Cadre School" of the Jinan Administrative Examination and Approval Service Bureau. Shi Lihua, member of the Party group and deputy director of Jinan Administrative Examination and Approval Service Bureau, presided over the lecture. Members of the leading party group of the bureau and other municipal leading cadres, first-level investigators, heads of various departments of the bureau, and members of the municipal enterprise service center attended the lecture. Other cadres and workers of the bureau and the municipal enterprise service center attended the lecture online. In this lecture, lawyer Zhou jiakui gave a comprehensive and detailed explanation of the essence of Xi Jinping's thought on the rule of law from the aspects of the formation process of Xi Jinping's thought on the rule of law, the key requirements of promoting the comprehensive rule of law, the in-depth implementation of Xi Jinping's thought on the rule of law, and the "voice of the rule of law" of the 20th CPC National Congress; this paper summarizes the methodology of implementing Xi Jinping's thought of the rule of law from the aspects of politics, people, systematicness and practicality, and explains in simple terms what is meant by people-centered and how to prevent administrative legal risks through the combination of theory and practice. This lecture provides strong scientific guidance for practicing the core concept and spiritual essence of Xi Jinping's thought of the rule of law, guiding the practice of the rule of law and administration according to law. After the meeting, the host, Director Shi, fully affirmed and hoped that Lawyer Zhou would continue to provide legal support for their school.

2022-11-03

Point of view... The necessity of standardized management of enterprise intellectual property assets is (II).

2. Patent Asset Management For a long time, patents have been more about how to obtain patent rights in the concept of Chinese people, and it is already a higher understanding of how to use patents to occupy a larger market share and obtain higher profits. At present, there is not enough understanding. Patents are not only a tool to ensure the operation of the real economy, but also a means of production. The basic application of patents should be to integrate patents as means of production with other means of production and to realize economic value through innovation and market operation. The attribute of (I) means of production determines that patent assets should be managed in a standardized manner. Because patent information is a kind of digital information, patents have higher requirements for the controllability of the production process than physical production materials. Relatively speaking, digital information depends more on standardized management, but also because of its own digitization, once patented assets are standardized management, the risks it faces as a means of production in the production process are easier to control, in other words, The return on management is relatively high. As a kind of digital information, the process data such as patent information delivery needs strict process management to ensure that the process data are obtained, sorted and stored without omission, so as to determine what happened in the process of patent and its information generation, examination, authorization and implementation, which is helpful to find the node of the problem, so as to solve the related problems pertinently. There is such a fact that no matter what the subject of patents is, most of them are industrialized and create output value, and universities are the main subjects of patents, but the technical solutions required by universities to generate patents are mostly laboratory products. And most of them are inventions and creations of students without any engineering practice experience, and the probability of direct industrialization is relatively low. However, students who are not bound by various practical experience and knowledge of engineering are more likely to come up with some novel solutions, which may represent the future development direction of a certain technology. In the process of implementing university patents to enterprises, it is often necessary to make substantial changes to the corresponding patented technology to meet the needs of the project, and the resulting new technological achievements are often more easily accepted by the market. Some of these technological achievements have a certain probability of becoming new patents. Compared with university patents, these new patents often have a higher restriction on the market operation of related products. The university patent is far from the engineering program, and even changes in principle, which does not have any impact on the market operation of related products. School-enterprise cooperation is a good thing, but when there is income, especially when the income is relatively high, it is likely to cause disputes. The key is that the market operation has a dominant role in the patent, the patent right of these patents and the integrity of the patent right to the promotion and application of related products often have a great impact. It should be known that even if the school-enterprise cooperation is bound by the relevant technology contract, the performance of the contract will often produce various situations due to the realization of technology, which may lead to the ownership of new technological achievements in an uncertain state. The integrity of patent rights has a great impact on enterprises, even if the rights are shared, such as universities and colleges that share the rights, there is still room for others to implement the common patent rights, which may result in the unfavorable market structure of enterprises. The complexity of (II) patent factors determines that patent assets should be managed in a standardized manner. There are three main factors to be considered in the management of patent assets, namely, legal, technical and industrial factors, and the following is an example of the areas of concern corresponding to legal factors: Legal factors include, but are not limited to, the integrity of ownership, the degree of legal protection, the stability of rights, dependence, the judgment of patent infringement, and the remaining useful life. The integrity of the ownership has been covered in the previous article. This alone is enough to have a great impact on the market structure of related products, and the integrity of the ownership is only one of the patent legal factors that should be paid attention to. Therefore, only the standardized management of patent assets can reduce the risks caused by management problems. For example, the degree of legal protection depends on the quality of the patent text, the degree of coverage of the claims and the legal status. As for the quality of writing, enough attention has been paid in recent years, but there is still a lot of room for the improvement of the overall quality of writing. There are many discussions in the industry, so I will not repeat them here. As for the legal status, in short, that is, the current stage of the patent or patent application and the corresponding technological achievement, it is necessary to know that the plasticity of different stages is different and the degree of accumulation is different. In addition, the degree of coverage of the claims is also related to the quality of writing, in other words, an extension of the quality of writing, which is discussed more in the industry and will not be repeated here. Regarding the stability of rights, there is an inappropriate case for reference. Affected by the social awareness of patents, many market entities are accustomed to market layout before applying for patents, or even not applying for patents, which may lead to Loss of rights or direct acquisition by others. According to the law alone, sales constitute disclosure in the sense of patent law, resulting in the disclosure of technical achievements as a carrier, and the patent converted from the technical achievements may not meet the provisions of novelty and be invalid (the examination stage does not examine the disclosure of facts including sales). However, many facts will be diluted due to the advancement of time, resulting in objective facts that cannot be reproduced by available means. Therefore, public actions such as prior sales do not necessarily cause the relevant patents to be invalidated because they do not meet the novelty requirements., Making the relevant rights gradually stabilize with the advancement of time. If an enterprise ignores the various factors that affect the stability of rights, on the one hand, it may lead to an unstable base of patent rights held, and on the other hand, it may lead to competitors acquiring relevant patents, and after a certain point in time has passed, the unstable patents may tend to be stable and difficult to invalidate. Limited by space, this paper only describes the complexity of the patent factors, and the various factors will not be described. From the above description of the limited content, it can be seen that if the patent assets are not standardized, it is difficult to cover all aspects of the patent factor, and may put their own market layout at risk. The diversity of (III) patents determines the standardized management of patent assets. In terms of broad distinctions, patents are acquired in the form of original acquisition and subsequent acquisition. Among them, the original acquisition of the dispute stems from the expected authorized technology is independent development, commissioned development, cooperative development, or other forms of research and development behavior and other basic forms of technological achievements, the basic form of development behavior there are many controllable or uncontrollable factors, resulting in unclear ownership of technological achievements, and affect the resulting determination of patent rights. Similarly, for example, foundry, commissioned processing, supporting, etc. are likely to produce new enough to affect the market layout of the technology. For example, contract manufacturing, typically, many domestic enterprises were contract manufacturing enterprises of some foreign enterprises in the early years, and later developed into enterprises that competed with the contract manufacturing enterprises, and the main problem lies in the lack of control over technological achievements; on the contrary, there is another phenomenon in China, that is, some enterprises gradually become contract manufacturing enterprises of other enterprises, lack of innovation ability or improper control of technological achievements is one of the main reasons. There are similar problems in commissioned processing and matching, which will not be elaborated here. In addition, the enterprise's own technological iteration in the industrialization process is the basis for the generation of valuable patents, obviously, the implementation of existing patents is the basis for testing its market adaptability, and the identification and adaptive adjustment of obstacles in the industrialization process of existing patented technology is the premise of the generation of valuable patents. There are relatively many ways to follow the acquisition, which can be the active behavior of the transferee or passive acceptance. The dilemma of subsequent patents is mostly due to the fact that the transferee's technology acquired based on the transfer constitutes a fragmented system, and the subsequent patents are, in more cases, technologies eliminated by others, and have little effect on market operations. In addition, the subsequent patents are also affected by the research and development background, because the party that transfers the patent is often the party that has a certain accumulation in related fields, and it is the party that is more likely to produce alternative technologies. One of the basic indicators of patent value is replaceability. It should be known that when the replaceability of a certain patent is relatively enhanced, its own value will weaken. Generally speaking, the transferee of patents is a relatively weak party, but the behavior of a company shows that the hash distribution of patents in related fields may be directly related to the company's market layout, in order to improve their own control, the acquisition of target patents has become one of the ways for such enterprises to improve the enterprise's patent layout. Patent transfer has become a controversial game in the behavior of some entities, known as non-patent enforcement entities, commonly known as patent trolls. The famous iPEL in the industry was founded by Brian Yates, a former California lawyer. There are more than 40 technology companies under the name of IPELT, and these technology companies are basically non-patent implementation entities. Among them, the American Global Innovation Aggregation Co., Ltd. has acquired some patents held by domestic patentees including Huawei and ZTE, and hold these patents in the country against Asus, Sony, Extreme Network, NetEase, Blizzard and other patent infringement proceedings. The non-patented implementing entity is a unilateral attack with no defense, because it does not implement the patent itself, and the accused infringer has no industrial goal to counter it. For most enterprises, such as the patent war between Huawei and Qualcomm, there are attacks and defenses, which requires the first attacked party to hold some patents that can counter the other party, that is, the attacked party is required to have a certain amount of patents, which will inevitably arouse attention to the next article. When the number of (IV) patents held is large, there will be higher requirements for the standardized management of patent assets. An investigation agency in the United States once conducted a survey, and the result of the survey was that about 5-10% of the patents held by an innovative company will never be used again in the future. These patents are not assets, but burdens for companies. Therefore, it is very necessary to take stock of the patents held, especially when the proportion of patents that can be implemented by Chinese enterprises is relatively low. It will be very easy to take stock of patents under the condition of standardized management of patent assets. For patentees with a certain amount of patents, there are relatively few or even no patents in isolation, and regular patent asset management should include grouping management, so as to maximize the value of patent assets through patent integration, and at the same time, it is easy to check and fill gaps according to the integrated patent layout. Patents held by a company are often not distributed in the field of technology, even if they are not in the same field of technology, they will be related to the field of technology. For diversified companies, the same applies in a particular industry direction. But even if the same company holds a large number of patents, the relationship between patents will become very complicated. The relationship between patents includes, but is not limited to, obstacles, substitutions, and complementarities, mainly due to the accumulation, iteration, and change of technological achievements. Strictly speaking, a patent right is an exclusive right, and the ability to exclude others from use does not mean that the right holder is free to use it himself, but lies in the aforementioned obstacle relationship. For example, the implementation of a subordinate patent in the sense of patent law depends on the implementation of the subordinate underlying patent, so the implementation of the subordinate patent is subject to the underlying patent, and if the holder of the underlying patent is someone else, it is an obstacle to the holder of the subordinate patent. The barrier relationship is also manifested in a two-way barrier relationship, which is manifested in the fact that the party holding the basic patent may be the originator of the abstract technical solution, for example, it may be a pioneer in a certain technical direction. Pioneering means nothing, and from scratch means immaturity. The patent held by the party holding the subordinate patent may be the result of technological iteration, and the party holding the basic patent may seek to implement the subordinate patent, thus forming a two-way barrier relationship between the basic patent and the subordinate patent. Substitution and complementarity relationships are only used in this paper to further show that there are relatively many factors to consider when the number of patents held is large, and the necessity of standardized management of patent assets is particularly important, which is detailed in this paper. Conclusion This paper takes trade secrets and patents as an example to illustrate the necessity of standardized management of intellectual property assets of enterprises, and the standardized management of intellectual property assets is a necessary condition for the production of intellectual property materials, the underlying logic to enhance the awareness of intellectual property rights of enterprise management and employees, and the basis for promoting independent innovation and sustainable and healthy development of enterprises. The standardized management of intellectual property assets is conducive to the establishment of links with physical assets, the protection of the value-added of physical assets, but also the basis for dealing with all kinds of intellectual property risks in the market, so as to improve the market control ability of enterprises, maintain and consolidate the competitive advantage of enterprises.

2022-11-02

The Fourth Party Branch of Jinan Institute, Zhongcheng Qingtai, Welcome to the Top 20

Strive for a new journey and build a new era. On October 16, the 20th National Congress of the Communist Party of China was solemnly held in the Great Hall of the People in Beijing. The Party Committee of Zhongcheng Qingtai (Jinan) Law Firm organized to listen to the grand opening of the conference. The lawyers listened carefully to the report of General Secretary Xi Jinping's 20th National Congress and deeply understood the new ideas and strategies contained in the report. The law firm has set off a wave of learning and practicing the spirit of the top 20. The report of the 20th National Congress of the Communist Party of China mentioned the rule of law, but also gave legal people ideological guidance. Zhongcheng Qingtai lawyers will unify their thinking, gather strength, work hard and move forward bravely. Experience of Learning "Twenty Big" Report Zhao Kaiyong This morning, the 20th National Congress of the Communist Party of China was successfully held in the Great Hall of the People in Beijing. As a lawyer with nearly 20 years of party experience, he watched the live broadcast of the opening meeting with all party members in the large conference room of the law firm and listened to the report made by General Secretary Xi Jinping. He was very excited and encouraged. The Communist Party of China has gone through a century of struggle. The report of the 20th National Congress of the Communist Party of China made by General Secretary Xi Jinping not only reviewed the past struggle and extraordinary achievements, but also scientifically planned the goals for the development of the party and the country in the next five years and even longer. Tasks and major policies, and put forward a series of new ideas, new strategies, and new measures, let us deeply feel that the comprehensive construction of a modern socialist country has entered a new journey. The report of the 20th National Congress of the Communist Party of China proposed to adhere to the comprehensive rule of law and promote the construction of the rule of law in China. It is necessary to improve the socialist legal system with Chinese characteristics with the Constitution as the core, promote scientific legislation, democratic legislation, and law-based legislation; it is also necessary to solidly promote administration according to law and comprehensively Promote strict, fair and civilized law enforcement; we must also strictly enforce justice, and strive to make the people feel fairness and justice in every judicial, inheritance of Chinese excellent traditional legal culture. These contents are actually the best interpretation of the new 16-character policy of "scientific legislation, strict law enforcement, fair justice, and law-abiding by the whole people. Through careful study of the 20th National Congress report, I know that as a practicing lawyer, I have a great responsibility. In the future work, I will give full play to my functional advantages and professional expertise, actively integrate into the overall development situation, always adhere to the people's needs as the guide, take the people's satisfaction as the standard, fully demonstrate the professional dedication of lawyers, continue to participate in legal aid, community law popularization and various public welfare activities, and make good use of the legal thinking to help the people realize and safeguard their legitimate rights and interests, strive to make the people feel fair and just in every legal service, and strive to be a good lawyer to the satisfaction of the party and the people. In the name of youth to bear the great task of rejuvenation Cao Shu A generation has a generation's mission, and a generation has a generation's responsibility. The river of time is endless, and every generation of young people has to face and answer the questionnaire of the times. The new era we are in is a new era of socialism with Chinese characteristics, and it is also a good era for young people to grow up and achieve their careers. If the youth is prosperous, the country will be prosperous, and if the youth is strong, the country will be strong. If the younger generation has ideals, abilities and responsibilities, the country will have a future and the nation will have hope. Young people are the precious human resources of the country. We should shoulder the historical mission, strengthen our confidence in moving forward, set great aspirations, have great morality, become great talents, and shoulder great responsibilities, and strive to become new people of the times worthy of the important task of national rejuvenation. The new century has unwittingly gone through more than 20 years. In 1997, the 15th National Congress of the Communist Party of China put forward the "two centenary" goals for the first time. We have realized the first centenary plan and built a well-off society in an all-round way on the 100 anniversary of the founding of the Communist Party of China. The 20th National Congress of the Communist Party of China has given us directions, clarified the path, and stood at a turning point in history. Our country is also facing more challenges. On the new journey of realizing the great rejuvenation of the Chinese nation, we should seize opportunities and overcome difficulties. In order to realize the second centenary plan, by the centenary of the founding of New China, we will strive to build our country into a prosperous, strong, democratic, civilized, harmonious and beautiful modern socialist country. In the new era, the historical mission and growth path of contemporary youth have changed again, but the only thing that remains unchanged is the warm heart of our children. Such a pure heart is not only faith, but also the foundation; it is ideal, but also feelings; it is inheritance, but also the future. We will have a strong backbone, report to Ling Yunzhi, show vigorous vigor, closely around the party's banner, live up to the times, live up to the youth, live up to the ardent expectations of the party and the people, and write a new chapter of the times! Always follow the party and forge ahead on a new journey. Liu Juan The report delivered by General Secretary Xi Jinping at the 20th National Congress of the Communist Party of China drew a grand blueprint for advancing Chinese-style modernization, creating a new form of human civilization, and comprehensively advancing the great rejuvenation of the Chinese nation on the new journey of building a modern socialist country in an all-round way. The report is truth-seeking and pragmatic. It not only deeply summarizes the major achievements and basic experience of the party leading the people of all ethnic groups in the country since the socialism with Chinese characteristics entered the new era, but also systematically plans the line, program, road and strategy for achieving the second centenary goal. It shows the historical consciousness, historical initiative and historical creation spirit of the Communist Party of China that are in the same line and keep pace with the times, it shows the high-spirited and upward mental state of the party leading the people of all ethnic groups in the country to create a better future, the positive and enterprising attitude of struggle and the development gait of self-reliance and self-improvement. Looking back at the past, the ten years when socialism with Chinese characteristics entered a new era were a decade of breakthrough achievements and milestones in the history of the Communist Party of China, the history of new China, the history of reform and opening up, the history of socialist development, and the history of the development of the Chinese nation. Looking to the future, in the dynamic pattern of changes in the world, history and the times, the Communist Party of China will certainly be able to lead the people of all ethnic groups throughout the country to work hard and courageously, and solidly promote the building of a modern socialist power. we will solidly promote the great rejuvenation of the Chinese nation and write a more brilliant chapter of the times. As successors in the new era, we should shoulder the historical mission, have lofty ideals, strive to improve our own quality, adjust our mentality, put ourselves in the right position, have the spirit of hard work and stand hard work, have a sense of responsibility, and establish the concept of lifelong learning, adapt to the society through continuous learning, strengthen strategic self-confidence, keep strategic sober, enhance confidence and fighting spirit, and greet the victory of the 20th CPC National Congress with practical actions, and hold high the great banner of socialism with Chinese characteristics, and strive to write a new chapter in building a modern socialist country in an all-round way. Keep in mind the entrustment to forge ahead Yu Wei On October 16, the 20th National Congress of the Communist Party of China was solemnly opened at the Great Hall of the People in Beijing. Xi Jinping delivered a report to the General Assembly on behalf of the 19th Central Committee. He stressed-- The Communist Party of China has gone through a century of struggle. Our party is determined to be committed to the great cause of the Chinese nation for thousands of years, and is committed to the noble cause of peace and development of mankind. Its responsibility is extremely heavy and its mission is extremely glorious. Over the past decade, we have experienced three major events of great practical and far-reaching historical significance to the cause of the party and the people: first, to usher in the 100th anniversary of the founding of the Communist Party of China, second, socialism with Chinese characteristics has entered a new era, and third, to accomplish the historical task of getting rid of poverty and building a moderately prosperous society in an all-round way, so as to achieve the first centenary goal. From now on, the central task of the Communist Party of China is to unite and lead the people of all ethnic groups across the country to build a modern and powerful socialist country in an all-round way, achieve the second centenary goal, and comprehensively promote the great rejuvenation of the Chinese nation with Chinese-style modernization. We will thoroughly implement the strategy of strengthening the country with talents, persist in respecting labor, knowledge, talents and creativity, improve the strategic layout of talents, speed up the construction of important talent centers and innovation highlands in the world, and strive to form a comparative advantage in international competition for talents. gather outstanding talents in all fields into the cause of the party and the people. We should improve the socialist legal system with Chinese characteristics with the Constitution as the core, strengthen the implementation and supervision of the Constitution, strengthen legislation in key, emerging and foreign-related fields, and promote scientific, democratic and legal legislation. In 2004, I joined the Communist Party of China with honor. I am extremely proud. This is the glory of my life. The 20th National Congress of the Communist Party of China is a very important congress held at an important moment when our party has entered the new journey of building a modern socialist country in an all-round way and marching towards the second centenary goal. It is a major event in the political life of the party and the country. Starting from this, the Communist Party of China, which has gone through a century of journey, will continue to forge ahead towards the more ambitious goal it should achieve when it is in power for a hundred years. In the future, we must not forget the original intention of joining the party, keep in mind the oath of joining the party, practice the purpose of the party, always maintain the true qualities of party members, faithfully perform their duties, and strive to be good party members to the satisfaction of the party and the people."

2022-11-01

Party Building | Zhongcheng Qingtai Jinan Institute Party Committee Organized and Studying the Party's 20 Major Special Training

On October 30, 2022, the Party Committee of Zhongcheng Qingtai (Jinan) Law Firm organized a special training on "Learning the New Journey of the 20th National Congress". Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai (Jinan) Law Firm, presided over the training. Li Ruzhi and Meng Fanhu, Deputy Secretary of the Party Committee, respectively elaborated on the report part of the 20th National Congress and the revision of the Party Constitution. The meeting was held online and all the staff of the firm participated in the study online. Director Li Ruzhi led the staff of the whole institute to study the full text of the report of the 20th National Congress of the Communist Party of China and to sort out and learn 50 key points. The theme of this conference is to hold high the great banner of socialism with Chinese characteristics, comprehensively implement the thought of socialism with Chinese characteristics in the new era, carry forward the great spirit of building the party, be confident and self-improvement, keep upright and innovative, work hard and forge ahead bravely, and work together to build a modern socialist country in an all-round way and promote the great rejuvenation of the Chinese nation in an all-round way. In the past ten years, the whole party has experienced "three major events". In the future, all party comrades will carry out "three major events" and "six must adhere to" and other theoretical content. Director Li sorted out and explained the report of the 20th National Congress of the Communist Party of China in a simple and profound way, and the staff of the whole institute had a deeper understanding and study of the theoretical knowledge of the 20th National Congress of the Communist Party of China. Director Meng Fanhu led the staff of the whole institute to study the 50 amendments to the newly adopted Constitution of the Communist Party of China. For example, Xi Jinping's Thought on Socialism with Chinese Characteristics for a New Era is the inheritance and development of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the important thinking of the "Three Represents", and the scientific development concept. It is contemporary Chinese Marxism and 21st century Marxism. It is the essence of the times of Chinese culture and Chinese spirit, as well as the valuable historical experience of "two combinations" and "ten persistence", and Chinese-style modernization. Director Geng Guoyu finally concluded: Combining the current party and state's positioning and policies on the lawyer industry, analyze the ideological essence of the spirit of the 20th National Congress of the Communist Party of China. At the same time, combined with economic development and changes in the legal service market in recent years, in-depth analysis of the current business development model, litigation business and non-litigation business development status, etc! Zhongcheng Qingtai (Jinan) Law Firm will lead the future development direction of the law firm with the spirit of the 20th National Congress, keep pace with the times, adapt to economic development and changes in the legal service market, and continuously improve the level of professional and comprehensive legal services. Move forward, the torrent moves forward!

2022-10-31

Viewpoint | Practical analysis of the way shareholders exercise their right to know

1. Introduction The shareholders' right to know is a basic right of shareholders, but the exercise of this right may also have a certain impact on the normal operation and management of the company, this paper will combine the current law, the provisions of judicial interpretation and the judicial case of shareholders' right to know to analyze the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (II) the Supreme People's Court on the application of<中华人民共和国公司法>(IV) of Provisions on Certain Issues (2020 Amendment) Article 10 If the people's court hears a case in which a shareholder requests to consult or copy the company's specific documents and materials, and supports the plaintiff's claim, it shall clearly specify in its judgment the time and place of consulting or copying the company's specific documents and materials and the directory of the specific documents and materials. If a shareholder consults the company's documents and materials in accordance with the effective judgment of the people's court, in the presence of the shareholder, it may be assisted by accountants, lawyers and other intermediary practitioners who have the obligation of confidentiality in accordance with the law or in accordance with the code of practice. (III) of the Guiding Opinions of the Higher People's Court of Beijing Municipality on Several Issues concerning the Trial of Company Dispute Cases Article 17 The shareholders of a limited liability company may entrust lawyers and certified public accountants to exercise the right of access to the company's accounting books on their behalf. Sorting out 3. referee rules General principles for the exercise of (I) shareholders' right to information According to Articles 33 and 97 of the Company Law, there are two main ways to exercise shareholders' right to know, one is "inspection and copy" and the other is "inspection only". The way for the shareholders of a limited liability company to exercise the right to know about the articles of association, the minutes of the shareholders' meeting, the resolutions of the board of directors, the resolutions of the meeting of the board of supervisors, and the financial and accounting reports is "inspection and copying"; the way for the shareholders of a limited liability company to exercise the right to know about the "accounting books of the company" is "inspection only", and they have no right to copy, and should submit a written request to the company, the right to know can be exercised through litigation only when the company refuses to consult or overdue reply; shareholders of a joint stock limited company exercise the right to know about "articles of association, register of shareholders, corporate bond stubs, minutes of shareholders' meeting, resolutions of board of directors, resolutions of board of supervisors, financial and accounting reports" in a way "only for inspection" and have no right to copy. [Case 1] Li Shujun, Wu Xiang, Sun Jie, Wang Guoxing and Jiangsu Jiade Real Estate Development Co., Ltd. Shareholder's Right to Know Dispute (in Supreme People's Court Bulletin, No. 8, 2011, Case No.:(2009) Suzhong Min Er Zhong Zi No. 319, Trial Court: Suqian Intermediate People's Court, Jiangsu Province) The court held that the company law gives shareholders the right to be informed of the company's operating conditions and business information, but it also stipulates the scope of the shareholders' right to exercise the right to know. The first paragraph of Article 34 of the Company Law limits the documents that shareholders have the right to copy to the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. The second paragraph only stipulates that shareholders can request to consult the company's financial and accounting books, but it does not stipulate that they can be copied, and there are no relevant provisions in the articles of association of Jiade. Therefore, the fourth appellant's claim for copying Jiade's accounting books and other company information is neither legally required nor beyond the agreement of the articles of association, so it is not supported. [Case 2] Dispute over Sichuan Tianjian Optoelectronic Technology Co., Ltd. and He Jin Shareholders' Right to Know (Case No.:(2021) Sichuan 01 Minzong No. 23387, Trial Court: Chengdu Intermediate People's Court of Sichuan Province) The court held that Article 97 of the the People's Republic of China Company Law clearly stipulates that shareholders of a joint stock limited company only have the right to access relevant information, not the right to copy. Therefore, the court of first instance did not support He Jin's request to copy the articles of association, the register of shareholders, the minutes of the shareholders' meeting, the resolutions of the board of directors, the resolutions of the board of supervisors, and the financial accounting report. (II) "look up" whether the accounting books contain "excerpts" In judicial practice, it is generally accepted that shareholders of a limited liability company have no right to copy the company's accounting books, and there are two main different judicial views as to whether the contents of the accounting books can be extracted: Viewpoint 1: Article 33 of the Company Law only provides for the exercise of the right to information of "inspection" and "copying", and excerpts are more similar to copying and should not support requests for excerpts from shareholders of limited liability companies. [Case 1] Dispute between Shandong Zhongting Network Technology Co., Ltd. and Liu Chunping over shareholders' right to know (Case No.:(2021) Lu 03 Minzong No. 4328, Trial Court: Zibo Intermediate People's Court of Shandong Province) The court held that shareholders only have the right to consult the company's accounting books, not the right to copy or extract accounting books, nor the right to consult, copy or extract accounting vouchers. Liu Chunping also did not provide evidence to prove that the company's articles of association or the company's shareholders have other agreements on extracting the company's accounting books and consulting, copying and extracting accounting vouchers. Therefore, Liu Chunping's claims on copying and extracting accounting books and consulting, copying and extracting accounting vouchers, the law is unfounded and will not be supported. Viewpoint 2: For the "access" to the accounting books expressed in the main text of the civil judgment, the civil enforcement should allow the right holder to implement it to include "viewing and excerpting". The main reasons are as follows: 1. Excerpts are an auxiliary means for shareholders to access accounting books. The company's accounting books generally include a large number of professional data information, in the case of shareholders can not fully understand the professional data information, can not be considered that only shareholders to consult the accounting books to achieve the right to know, excerpts are also to assist shareholders to consult the company's documents and materials, understand the company's information methods. 2. Excerpts are not equivalent to copying. Excerpts and copies have different legal meanings. "Excerpts" can be understood as "selecting a part of the content to be copied", "copy" can be understood as "making the same according to the original", excerpts do not belong to copying in essence. 3. If the shareholders divulge the company's trade secrets in the process of exercising the right to know by extracting the accounting books, resulting in damage to the legitimate interests of the company, they can be remedied in accordance with the law. [Case 2] Dispute over Shareholders' Right to Know between Beijing Beiaikang Biotechnology Co., Ltd. and Dongfeng Enterprise Co., Ltd. (Case No.:(2020) Supreme Law Enforcement Supervision No. 97, Trial Court: Supreme People's Court) The court held that the focus of the case was whether the shareholders' access to the company's accounting books contained extracts in the exercise of their right to information. First, excerpts are an auxiliary means for shareholders to exercise their right to know and access accounting books. The shareholders' right to know is the right of the shareholders of the company to know the information of the company and the affairs of the company, and it is the legal right and inherent right of the shareholders. Access to accounting books is the way to realize the shareholders' right to know. Article 33 of the Company Law stipulates that "shareholders shall have the right to consult and copy the articles of association of the company, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request to consult the accounting books of the company". The company's accounting books generally include a large number of professional data information, in the case of shareholders can not fully understand the professional data information, can not be considered that only shareholders to consult the accounting books on their own to achieve the right to know. In this regard, Article 10 of the (IV) for interpretation of the Company Law stipulates that if a shareholder consults the company's documents and materials in accordance with the effective judgment of the people's court, in the presence of the shareholder, it may be assisted by accountants, lawyers and other intermediary practitioners who have the obligation of confidentiality in accordance with the law or in accordance with the code of practice. The provision makes it clear that the exercise of shareholders' right to information can be assisted by professionally competent personnel, the purpose of which is to help shareholders understand the company's information. Similarly, excerpts are also a way to assist shareholders in accessing company documents and materials and understanding company information. Whether it is to hire professionals, or excerpts, is to assist shareholders to realize their right to know the means. Second, in general, excerpts are not equivalent to copying. Article 70 of the "the People's Republic of China Civil Procedure Law" stipulates that the original shall be submitted for documentary evidence, and the original shall be submitted for material evidence. If it is really difficult to submit the original or the original, copies, photos, copies, or excerpts may be submitted. Article 44 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates that when extracting documents and materials related to the facts of the case produced by the relevant unit, the source shall be indicated and the seal of the production unit or the custody unit shall be affixed. With reference to the spirit of the relevant provisions of the law and judicial interpretation on evidence, excerpts and copies have different legal meanings. From the meaning of the word, "extract" and "extract" have similar meanings, which can be understood as "select a part of the content to transcribe it", and "copy" can be understood as "make the same according to the original". It can be seen that excerpts, excerpts and copies have different meanings and cannot produce the effect of "making the same", and it cannot be considered that excerpts are essentially copies. The shareholders' excerpts from the accounting books do not violate the provisions of the Company Law, and Beiaikang's claim that "excerpts" are essentially "copies" cannot be established. Third, Article 20 of the Company Law stipulates that the shareholders of a company shall abide by the laws, administrative regulations and the articles of association of the company, exercise the rights of shareholders in accordance with the law, and shall not abuse the rights of shareholders to harm the interests of the company or other shareholders, and if the shareholders of the company abuse the rights of shareholders to cause losses to the company or other shareholders, they shall be liable for compensation in accordance with the law. Article 11 of the (IV) for interpretation of the Company Law stipulates that the disclosure of the company's trade secrets after shareholders exercise their right to know leads to damage to the legitimate interests of the company, and the disclosure of the company's trade secrets by accountants and lawyers who assist shareholders in consulting the company's documents and materials leads to damage to the legitimate interests of the company, and the people's court shall support the company's request for compensation for relevant losses. The above-mentioned laws and judicial interpretations have clearly stipulated that shareholders have the obligation to keep the company's secrets, as well as the remedies when the company's interests are damaged as a result. If Beiaikang Company believes that Dongfeng Company has leaked the company's trade secrets in the process of exercising shareholders' right to know, resulting in damage to the company's legitimate interests, it can provide relief in accordance with the law. [Case 3] Dispute between Lai Junwei and Lai Wanglong and Foshan Wuyecaoyun Service Co., Ltd. and Lai Xiaobo over Shareholders' Right to Know (Case No.:(2021) No. 28388 of Guangdong 0605 Minchu, Trial Court: Nanhai District People's Court of Foshan City) The court held that: regarding the way to exercise the shareholders' right to know... the two plaintiffs also claimed to make necessary excerpts and extracts when consulting the accounting books and accounting vouchers, as mentioned above, the accounting books and accounting vouchers should be limited to inspection, excluding copying, but the excerpts here are not equivalent to copying, and the excerpts are the auxiliary means for the shareholders to exercise the right to know and consult the accounting books and accounting vouchers, so the two plaintiffs can make necessary excerpts. Time and place for the exercise of (III) shareholders' right to know Regarding the timing of the exercise of the shareholders' right to know: based on the consideration of not affecting the operation of the company, in order to avoid endless and unlimited access to the company's documents by shareholders, the general court will respect the autonomy of the parties and make a judgment according to the timing of the exercise of the shareholders' right to know agreed upon by shareholders and the company. If the shareholders and the company disagree, the court will reasonably determine a fixed time frame, usually between 5 days (or working days) and 30 days (working days), within the company's daily business hours. Regarding the place of exercise of the shareholder's right to know: If the shareholder and the company can negotiate to determine the place, the court will generally confirm it in the judgment. If the shareholder and the company are unable to agree on the place of inspection, the court will generally consider the place of storage of the materials to determine the location of the company (e. g. domicile, actual place of business, actual office space, etc.) as the place of exercise of the shareholder's right to know. At the same time, considering the contradiction between shareholders and the company, and the impact of shareholders' exercise of the right to know on the company's daily operation, some judgments determine the place where the shareholders' right to know is exercised in the people's court. [Case 1] Dispute over Shareholders' Right to Know between Shanghai Fenbo Electronic Commerce Co., Ltd. and Liu Zhenmin (Case No.:(2022) Hu 01 Min Zhong No. 1491, Trial Court: Shanghai No.1 Intermediate People's Court) The court held that the first paragraph of Article 10 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "The people's court hears a case in which a shareholder requests to consult or copy the company's specific documents and materials, and supports the plaintiff's litigation request Yes, the time, place and specific documents of the company's specific documents and materials shall be clearly consulted or copied in the judgment". In order to protect Liu Zhenmin's right to know shareholders, according to the wishes of both parties, the court has determined the location at Beijing Yingke (Shanghai) Law Firm (XX Road, Jing 'an District, Shanghai). [Case 2] Li Shujun, Wu Xiang, Sun Jie, Wang Guoxing and Jiangsu Jiade Real Estate Development Co., Ltd. Shareholder's Right to Know Dispute (in Supreme People's Court Bulletin, No. 8, 2011, Case No.:(2009) Suzhong Min Er Zhong Zi No. 319, Trial Court: Suqian Intermediate People's Court, Jiangsu Province) The court held that: with regard to the time and place of inspection, the purpose and value of the company law to give shareholders the right to know is to ensure the full exercise of shareholders' rights, but the exercise of this right should also be carried out under the mechanism of balance of rights, that is, the efficiency of operation, business order and other corporate rights and interests have not adversely affected. Therefore, the four appellants should consult materials related to the matters they wish to know, not a comprehensive audit of the company's finances, so the inspection should be within the normal business hours of the company and not more than ten working days, and the convenient place for inspection should be in Jiade. (IV) professional institutions to assist in the exercise of the right to know The Supreme People's Court on the application<中华人民共和国公司法>Article 10, paragraph 2, of the (IV) on Certain Issues provides for allowing professional third parties to assist shareholders in exercising their right to information. But need to pay attention to the following matters: 1, should entrust a third party to assist in the exercise of the right to know as a clear claim. Otherwise, even if the court decides that the shareholders have the right to exercise the right to know, but because it is not clear in the effective judgment that "a third party may be entrusted to assist in the exercise of the right to know", the shareholders entrusted to a third party to assist in the exercise of the right to know may still be opposed by the company. 2. Auxiliary personnel shall be practitioners of intermediary institutions who have the obligation of confidentiality in accordance with the law or in accordance with the norms of practice. The Supreme People's Court on the application<中华人民共和国公司法>Article 10, paragraph 2, of the (IV) on Certain Issues limits auxiliary personnel to "in accordance with the law or</中华人民共和国公司法></中华人民共和国公司法></中华人民共和国公司法>

2022-10-28