Dynamic | Chen Dabing, General Manager of Overseas Company of China Chemical Transportation Group, and his party visited Zhongcheng Qingtai Jinan Institute for investigation and research.

On the morning of September 22, 2022, Chen Daibing, general manager of overseas company of China Chemical Transportation Group, Liu Teng, director of the office, and his entourage visited Zhongcheng Qingtai (Jinan) Law Firm. The partners came to Yinping lawyer and Su Na, director of the International Business Center, warmly received them. Lawyers from Yinping and Su Na introduced Zhongcheng Qingtai's development process, party building work and honors to General Manager Chen Daibing and his party, and accompanied them to visit the party member activity room and office area of the law firm. Subsequently, the two sides conducted in-depth communication on the risks, difficulties and solutions encountered by Chinese construction enterprises going out to sea under the current complex international situation and the impact of the epidemic, as well as the role of Chinese foreign lawyers in the overseas rights protection of Chinese enterprises. At the symposium, General Manager Chen Daibing highly affirmed Zhongcheng Qingtai's party building work, comprehensive strength and professional development, especially the measures and achievements of foreign-related legal services. The two sides will establish a long-term liaison mechanism and actively explore space for exchanges in party building work and foreign-related business cooperation.

2022-09-23

Light and Stars | Youth Training Camp Cadets Training Perception (II)

On August 26, the first professional training camp of Zhongcheng Qingtai Guanghe Xingchen opened. Although the training camp lasted only two days, we gained a lot of knowledge, skills and friendship. 1. is customer oriented. Although our team prepared the due diligence plan, PPT and mind map one week in advance according to the actual combat course materials provided by the organizing committee, we also prepared the content of legal due diligence. However, we did not consider this practical course from the perspective of customers at all. When we heard the "customer" question in the field, we realized our problem. Lawyers should "empathically" with their clients, thinking from the client's point of view, how to help them avoid risks and achieve the purpose of the transaction. 2. is based on professional skills. In the actual combat class of this training camp, the "customer" asked us a total of three questions, but our reply was not satisfactory. We thought we were well prepared and deeply felt our shortcomings. In the follow-up due diligence practice course, I learned that due diligence is only the most basic part of the business. The development trend of lawyer business in the future is to provide one-stop legal services in the mode of "industry. The professional ability of lawyers is the foundation of lawyers' practice. Only by being more professional, refined and standardized can we better serve customers. 3. is guaranteed by teamwork. Brave team, hero fearless, don't ask the road ahead, don't ask the west and east. Our team is a diversified team, including partners, practicing lawyers and newly interned paralegals. From the unfamiliar chat and communication on the Internet to the late-night talk after the meeting, from the "rigid combination" of actual combat homework to the ideological resonance of practice planning after the candlelight night talk. Although everyone is at different stages of practice, facing different practice confusions, and having different practice goals, we have the same belief: we should fight at the age of struggle, like the brave, tame every monster with light, Born to the sun and rushed to the sea of stars.

2022-09-22

Light and Stars | Youth Training Camp Cadets Training Perception (I)

In early autumn, the clouds are high and the wind is smooth, and the youth training camp of "Guanghe Xingchen" in Qingtai brings us together on the bank of the Yellow River. The staff has not yet been gathered, the intense work has been carried out, the preparation of materials, research topics, group discussions to express their views, the spark of thought through the network rapid transmission. Eight young lawyers gathered together to form a team of "Zhonghe Yixin", and "Zhonghe Yixin" has become our common belief. After three days of training, young lawyers experienced the baptism of soul and culture and improved their professional skills. Simulating actual combat gives us a valuable opportunity to discover deficiencies and improve ourselves. Director Han Honggang's speech from a strategically advantageous position put forward higher requirements for the development of young lawyers. Director Gong Lixin's speech on the development strategy of Zhongcheng Qingtai made our blood boil. At the beginning of practice, young lawyers learned about the forefront of lawyer practice and the development of law firms, and were full of confidence and vision for their personal future, lawyer profession and law firm development. Director Geng Guoyu's lecture on party building and cultural topics, we deeply realize that party building is the red engine for the development of law firms, and the "spirit of benevolence" is the force that leads our young lawyers to move forward steadily. Gao Chang, Hu Youbin, Zhao Kaiyong, Qiao Aijun and other big lawyers, from the basic knowledge of due diligence to non-performing assets, equity investment, real estate professional due diligence, made a full, in-depth and simple explanation. Since entering the camp, the organizer's meticulous and delicate care has warmed us all the time. From accommodation and diet to classroom training, from the plank road morning run to the candlelight forum, from the tea break to the award ceremony, every activity is a perfect combination of standardization, order, vigor and romance. A journey of a thousand miles begins with a single step. The end of the training is a new starting point for our lawyers. In the future, Zhonghe Yixin Group will continue to carry forward the excellent style of teamwork in this youth training camp. While pursuing to be a good lawyer who satisfies the parties, satisfies himself, and is recognized by colleagues, it will strive to achieve a party and The higher requirements of a good lawyer satisfied by the people. In this youth training camp, the demeanor of lawyers and young talents made us deeply aware of our lack of professional knowledge, practical ability and theoretical literacy. Xiongguan Mandao is really like iron, and now we are stepping forward from the beginning. We are like seedlings, absorbing the nutrition of sunshine, looking forward to the future stars and sea, and determined to realize the promise made to our lawyer's life today under the banner of the General Office and on the bank of the Yellow River. All the people have one heart, forge ahead, Do not stop, believe in the future!

2022-09-22

Dynamic | Zhongcheng Qingtai Law Firm was invited to participate in the provincial party and government organs legal adviser work experience exchange meeting and make experience sharing

On September 21, the provincial party and government organs legal adviser work experience exchange meeting was held in Jinan. Provincial Department of Justice Party Committee, deputy director Zhu Xiaofeng attended the meeting and delivered a speech. Lv Tao, member of the Standing Committee of the Jinan Municipal Committee and Secretary of the Political and Legal Committee, delivered a speech. Jinan Municipal Bureau of Justice Party Secretary, Director Sun Delong attended the meeting. Liu Yuguo, director of the lawyer's work department of the Provincial Department of Justice, presided over the meeting. The meeting was held in the form of video. The main venue was set up in the Jinan Judicial Bureau, and branch venues were set up in the judicial bureaus of 15 other cities and counties (cities, districts). At the meeting, the Provincial Department of Industry and Information Technology, the Provincial Department of Finance, the Provincial Department of Housing and Urban-Rural Development, the Judicial Bureaus of Jinan City, Qingdao City, Liaocheng City, Xintai City, Wulian County, Linyi City, Luozhuang District Judicial Bureau, Shandong Kangqiao Law Firm, Shandong Zhongcheng Qingtai (Jinan) Law Firm, Beijing Deheng (Jinan) Law Firm made speeches at the meeting. The other 13 municipal judicial bureaus and 13 county judicial bureaus exchanged written experience of party and 13 counties. Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai (Jinan) Law Firm, was invited to attend the meeting and made a typical speech. Director Geng Guoyu said that Zhongcheng Qingtai Law Firm always adheres to the concept of "centering on the center and serving the overall situation" and earnestly does a good job of legal counsel. Work hard to be a good legal adviser for party and government agencies at all levels; law firms improve their working mechanisms, set up specialized agencies, research and provide legal services, actively take on the role, dozens of Zhongcheng Qingtai lawyers have been hired to serve as the Shandong Provincial Party Committee, the Provincial Government, the Provincial People's Congress, the Jinan Municipal Party Committee, the Municipal Government, and more than ten provincial departments, more than 20 municipal departments and dozens of grassroots departments. The legal adviser demonstrates the responsibility of the rule of law in the key work of the party committee and government, and actively acts in serving the overall situation of economic and social development. In the next step, Zhongcheng Qingtai Law Firm will further base itself on the new situation, new tasks and new requirements of the construction of a country under the rule of law, a government under the rule of law, and a society under the rule of law, closely focus on the central work of the party committee and government, improve political positions, strengthen responsibility, and actively play the role of legal counsel, To make new contributions to serving the construction of a modern socialist province in the new era. Zhu Xiaofeng pointed out: the legal adviser system of party and government organs is an important part of the socialist rule of law system with Chinese characteristics, and the legal adviser of party and government organs is an important force in promoting the comprehensive rule of law. it is the main force in promoting the construction of a country ruled by law, a government ruled by law, and a society ruled by law. The mission of the legal adviser is glorious, the responsibility is great, and there is much to be done. Zhu Xiaofeng stressed: it is necessary to give full play to the role of external legal advisers, promote party and government organs to make decisions and act in accordance with the law, and broaden the depth and breadth of legal advisers to participate in decision-making. Party and government organs regard legal advisers participating in the decision-making process and putting forward legal opinions as important procedures for decision-making in accordance with the law, and earnestly strengthen the review of legal compliance. Zhu Xiaofeng called for strengthening the training of political literacy, policy theory and professional skills of legal advisers, and improving the ability of legal advisers to perform their duties by inviting business departments to give lectures, organizing and studying internal documents of the department, and participating in research, so as to improve the participation and integration of legal advisers, promote the work of legal advisers of party and government organs in the province to open a new bureau, and greet the victory of the 20th CPC National Congress with excellent results!

2022-09-22

Viewpoint | Ways and conditions for the transfer of construction in progress

In practice, the transfer of construction in progress mainly includes the overall asset transfer of construction in progress (hereinafter referred to as "asset transfer") and the equity transfer of the project company established specifically for the development and construction of the project (hereinafter referred to as "equity transfer"). Asset transfer refers to the transfer mode in which the right holder transfers the undeveloped and completed construction in progress projects, including land use rights, construction in progress and related ancillary facilities, to the transferee as a whole and receives the transfer price. Equity transfer means that the right holder transfers the equity of the project company to the transferee for the purpose of transferring the project under construction. According to Article 39 of the "the People's Republic of China City Real Estate Management Law": "If the land use right is obtained by way of transfer, the following conditions shall be met when the real estate is transferred: (1) All the land use right transfer fees have been paid in accordance with the transfer contract. And obtain the land use right certificate; (II) investment and development in accordance with the transfer contract, which belongs to a housing construction project, more than 25% of the total development investment is completed, which belongs to a piece of land, the formation of industrial land or other construction land conditions. If the house has been built at the time of the transfer of real estate, it shall also hold a certificate of ownership of the house." It can be seen that in the transfer of assets, not only the procedures should be legal and complete, but also the amount of investment should reach 25% of the total investment. How do 1. understand that the amount of investment has reached 25% of the total investment? Referring to the provisions of Article 1, Article 2, Article 4, Article 6 and Article 16 of the Project Composition of Total Investment Expenses of Construction Projects (Draft for Comments) issued by the Ministry of Housing and Urban-Rural Development, the total investment of construction projects refers to the total estimated or actual investment expenses during the construction period to complete the construction of the project and meet the use requirements or production conditions, including project cost (such as construction cost, equipment purchase cost and installation cost, land use fee and other compensation fees, construction management fee, survey and design fee and other construction expenses, reserve fee), value-added tax, fund raising fee (such as loan interest, bond interest, loan evaluation fee, foreign loan handling fee and commitment fee, exchange gain and loss, bond issuance fee and other debt interest expense or financing fee) and working capital. Among the documents that can be inquired through public channels, only the ''Pilot Implementation Plan for Improving the Transfer, Lease, and Mortgage of the Secondary Market of Construction Land Use Rights in Xi'an, Shaanxi Province'' approved by the former Ministry of Land and Resources has been approved for the construction of housing construction projects. It has reached the identification standard of more than 25% of the total development investment, that is, one of the following conditions should be met: (1) For the land transferred by net land, the construction of the project has been fully started and has reached positive or negative zero; (2) Or the completed above-ground building area is not less than 1/3 of the total building area (excluding underground); (3) Or the audit (evaluation) report issued by a professionally qualified audit (evaluation) agency provided by the transferor that the amount of development investment (excluding land transfer fees) has reached more than 25%. Does the transfer of 2. equity also require an investment amount of 25% of the total investment? The former Ministry of Land and Resources once replied that the use of land use rights as capital contribution is a form of land use right transfer, and it should also meet Article 39 of the "the People's Republic of China Real Estate Management Law" that "25% of the total development investment can be completed". The restrictive provisions of the transfer are generally not accepted for property rights change applications that do not meet the prescribed conditions. However, according to the case of equity transfer disputes between Fu Xueling, Sha Modi and Zhou Yingqi, Yingkou Hengqi Real Estate Development Co., Ltd., the Supreme People's Court found in the (2016) Supreme Court Civil Judgment No. 222 that the transfer of 100 of the shares of the company holding the land use right should not be included in the review scope of land management laws and regulations because the subject of the equity transfer has not changed. Since the current law does not have the effect of mandatory provisions prohibiting the transfer of land use rights in the form of the transfer of equity in real estate project companies, the equity transfer agreement should be considered valid. Therefore, the transfer of 100 per cent of the real estate company's equity transfer contract, most courts will cite the view of the Supreme Law that it is essentially a transfer of equity, not a transfer of land use rights, under the provisions of the Company Law, the act is legal and valid. However, considering that in practice, some courts will consider that this behavior constitutes the crime of illegal transfer and reselling of land use rights, entrepreneurs should also prevent corresponding criminal legal risks, and should try their best to ensure compliance with relevant laws and regulations on the transfer of land use rights before implementing relevant behaviors. Conditions, or try to obtain the consent of the local government.

2022-09-21

Honor... Zhongcheng Qingtai won the 2022 "Commercial Law" Outstanding Comprehensive Strength Law Firm Award.

On September 21, 2022, Commercial Law (China Business Law Journal) announced the 2022 regional award of the Commercial Law Excellence Law Firm Award-"Excellent Comprehensive Strength Law Firm". Zhongcheng Qingtai Law Firm won the "Excellent Comprehensive Strength Law Firm" award in Shandong with its professional services and outstanding performance. Commercial Law is Asia's leading legal monthly magazine, focusing on providing professional commercial law information for corporate lawyers, lawyers and other high-end legal and business people in the Asia-Pacific region, and has a wide range of influence in the field of commercial law in China. The "Excellent Comprehensive Strength Law Firm" award focuses on the outstanding achievements of regional law firms in the past year. Nominated and recommend by corporate legal affairs, management decision makers, government officials and scholars, combined with important transactions that law firms have participated in, Cases and other achievements, comprehensive examination of complexity, innovation, amount and other indicators, and selection of leading firms in various regions. Zhongcheng Qingtai Law Firm was established by the merger of Zhongcheng Renhe Law Firm and Qingtai Law Firm, which are both national excellent law firms, in March 2015. Headquartered in Jinan, Shandong, Zhongcheng Qingtai Law Firm is a provincial law firm. It has 19 branches in Jinan, Qingdao, Beijing, Zibo, Dezhou, Binzhou, Dongying, Liaocheng, Chengyang, Yantai, West Coast, Weifang, Shanghai, Weihai, Linyi, Heze, Taian, Linyi and Renbu, Tibet. It has set up joint law firms in Shandong Free Trade Zone in cooperation with Hong Kong and Macao excellent law firms, jointly initiated the establishment of a number of applied civil non-legal research institutions with an office area of more than 20,000 square meters. With more than 300 partners and nearly 1000 lawyers and employees, Zhongcheng Qingtai is a large-scale firm in Shandong Province, ranking among the "Top 20 National Law Firms" and "Top 50 Asian Law Firms". Zhongcheng Qingtai Law Firm has complete professional qualifications, and its business is positioned in mid-to-high-end non-litigation legal services and traditional litigation business, covering international business, urban construction, real estate, corporate securities, financial insurance, intellectual property, environmental resources, government consultants, Legal services for small and medium-sized enterprises, maritime commerce, customs, marine industry, compliance, tax law, family wealth inheritance, labor and human resources, criminal and other professional fields, and continue to develop and innovate legal services. Zhongcheng Qingtai regards lawyers as a noble cause, with the mission of providing excellent legal services, maintaining social fairness and justice, adhering to the service tenet of "centering on the center, serving the overall situation, paying attention to the people's livelihood, and contributing to the society", and "striving for excellence and perfection" The service standard is to strive to build a large-scale, professional, standardized and international first-class law firm in the country. With standardized law firm management, standardized business services, and strict practice discipline, Zhongcheng Qingtai Law Firm has won high trust and wide acclaim from all walks of life for its high-quality service. It has won dozens of honors, such as national and Shandong excellent law firms, advanced grass-roots party organizations, civilized units, service brands, integrity construction demonstration units and so on. Zhongcheng Qingtai is committed to providing customers with professional, high-quality and efficient legal services. It has been praised by customers and recognized by the industry in many business fields. We will use wisdom and integrity, professional, efficiency and you work together to create infinite wonderful!

2022-09-21

Viewpoint... The process of repurchasing shares of listed companies to reduce registered capital.

Share repurchase is the act of a company buying back the shares of the Company issued or outstanding in accordance with certain procedures. The purpose of share repurchase is mostly the following: to reduce the registered capital of the company, to use the shares for employee stock ownership plan or equity incentive, to use the shares for the conversion of corporate bonds issued by listed companies that can be converted into shares, and to maintain the value of the company and shareholders' rights and interests. This article will summarize the operation process when share repurchase is used to reduce registered capital for your reference. 1. related regulations The main laws and regulations related to the repurchase of shares by listed companies include: the People's Republic of China Company Law, Share Repurchase Rules for Listed Companies, Shanghai Stock Exchange Self-Regulatory Guidelines No. 7-Repurchase of Shares and Shenzhen Stock Exchange Self-Regulatory Guidelines No. 9-Repurchase of Shares. 1. Company Law of the People's Republic of China Article 142 A company may not purchase its own shares. However, any of the following circumstances shall be excluded: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies is necessary to safeguard the value of the company and shareholders' rights and interests. 2. Rules on Share Repurchase of Listed Companies Article 2: The term "repurchase of shares by a listed company" as mentioned in these Rules refers to the act of a listed company purchasing its own shares in one of the following circumstances: (I) reduction of the company's registered capital; (II) use of shares for employee stock ownership plans or equity incentives; (III) the use of shares for the conversion of convertible corporate bonds issued by listed companies; The (IV) is necessary to safeguard the value of the company and the rights and interests of shareholders. The circumstances referred to in Item (IV) of the preceding paragraph shall meet one of the following conditions: The closing price of the (I) company's stock is lower than the net asset value per share in the most recent period; The cumulative decline in the closing price of the company's stock in the (II) 20 consecutive trading days reached 30%; (III) other conditions prescribed by the CSRC. 3. Guidelines on Self-Regulation of Listed Companies on the Shanghai Stock Exchange No. 7-Repurchase of Shares "Guidelines on Self-Regulation of Listed Companies on the Shenzhen Stock Exchange No. 9-Repurchase of Shares" Article 2: These Guidelines shall apply to the repurchase of the Company's shares (hereinafter referred to as the repurchase of shares) due to the following circumstances: (I) reduction of the company's registered capital; (II) use of shares for employee stock ownership plans or equity incentives; (III) the use of shares for the conversion of convertible corporate bonds issued by listed companies; The (IV) is necessary to safeguard the value of the company and the rights and interests of shareholders. The circumstances referred to in Item (IV) of the preceding paragraph shall meet one of the following conditions: The closing price of the (I) company's stock is lower than the net asset value per share in the most recent period; The closing price of the company's stock has fallen by a cumulative 30% over the (II) 20 consecutive trading days; (III) other conditions prescribed by the CSRC. In addition to the above-mentioned circumstances, the repurchase of shares by a listed company shall be handled in accordance with the Company Law, the Securities Law, the China Securities Regulatory Commission and the relevant provisions of the Exchange. 2. repurchase process In this paper, the implementation of share repurchase to reduce the company's registered capital as an example, to sort out the listed company's share repurchase flow chart and the corresponding stage of information disclosure obligations: 3. considerations 1. Review procedures before share repurchase: If it is used to reduce the registered capital, it is mandatory to perform the review procedures of the general meeting of shareholders, and it must be approved by more than 2/3 of the voting rights held by the shareholders present at the meeting. 2. Information disclosure obligations: Listed companies shall fulfill their information disclosure obligations and notify creditors in a timely manner in strict accordance with the Company Law, the Rules on Share Repurchase of Listed Companies and the repurchase supervision guidelines issued by the Shanghai Stock Exchange and the Shenzhen Stock Exchange. 3. Opening of accounts related to share repurchase:(1) bank fund account (opened by bank);(2) special account for repurchase (opened by Zhongdeng);(3) stock trading account (opened by brokerage firm).

2022-09-20

Viewpoint | Research on Pledge of Accounts Receivable

1 Origin of the problem 1. Company A establishes a pledge registration of its own accounts receivable claims, Company B is the pledgee, and Company A transfers the claims to an unwitting Company C without authorization. Can Company B claim to Company C if it wants to realize the pledge? 2. Company A signs a creditor's rights transfer agreement with Company B to transfer the creditor's rights to Company B, and then Company A establishes a pledge registration for the creditor's rights, and Company C is the pledgee, can Company C obtain the pledge? If so, can Company C claim the pledge from Company B if it wants to realize the pledge? The above problems have produced great controversy in practice. Article 445 of the Civil Code provides that accounts receivable may not be assigned after they have been pledged, unless the pledgee and the pledgee agree to do so. However, the law does not further stipulate what the legal effect after the transfer should be, which should be invalid? The effect is pending? Effective? This also makes the courts in different places have different decisions in the face of such issues. To solve this problem, it is necessary to study the nature of the right of accounts receivable in the law, and the particularity of this kind of pledge right compared with the general pledge right. 2 Accounts receivable are not "movable property" in the sense of property law" The general theory of civil law generally holds that all things refer to physical objects, and the second thing can be divided into movable and immovable property. However, it should be noted that the understanding of physical objects should be from the perspective of physical objects, which refers to objects that have a certain material form and can be perceived by people, including tangible objects that occupy a certain space, such as solid, liquid and gaseous objects, as well as natural forces or energy such as electricity, heat, sound and light. Corresponding to the physical object is the non-physical object, which refers to the rights and interests other than the rights of the physical object, such as the rights of stocks, bills, bonds, etc., can be called intangible property, the essence of which is the interests of the subject of rights protected by law. As the subject matter of the pledge, accounts receivable is a kind of monetary payment request right, which is expressed as the right of the obligee to require the obligor to pay due to the provision of certain goods, services or facilities. It is the same as the nature of stocks and bonds. The interests of the subject of rights protected by law are not the property in the property law, and it does not belong to the category of movable property. 3 The pledge right of accounts receivable is a special security right. Accounts receivable is not a thing in the legal sense and does not affect its object as a property right. Article 115 of the Civil Code provides that if the law provides for a right as the object of a property right, it shall be in accordance with its provisions. Although accounts receivable cannot exist independently from the meaning between the receivable and the payer, however, the security interest itself is a property right that exists in pursuit of the exchange value of the subject matter, and it is precisely because of the independent exchange value that accounts receivable can become the subject of a pledge and exist as a kind of security interest. The pledge of accounts receivable has its particularity compared with the general pledge of movable property. The quality used for the pledge in the general movable property pledge is specific, when the right of quality is realized, the right holder can only dispose of the quality as a whole, which directly leads to the loss of ownership of the quality. In contrast, accounts receivable are essentially monetary claims, and rather than pledging a claim against a particular debtor, it is better to assume that the pledge is a currency with a particular security value, which is not only highly substitutable, but can also be quantified. In addition, the risk faced by the pledgee of accounts receivable is greater than that of the pledgee of movable property pledge. The reason is that the pledgee in the general movable property pledge relationship has transferred the direct possession of the pledge from the beginning, while the pledgee of accounts receivable lacks direct control over the accounts receivable, and the accounts receivable as the subject of the pledge are more likely to be disposed of by the pledgee, resulting in multiple pledges and the above-mentioned situations of pledge before concession, concession first and pledge later. Loopholes in the law also make it more difficult to deal with such problems in practice. Accounts receivable belong to monetary claims, the transfer of which shall be subject to the relevant provisions of the Civil Code Contract Book on the transfer of claims, while the pledge of accounts receivable belongs to the right of quality, and the provisions of the general provisions of the security property part shall apply. The problem is that the pledge of accounts receivable and the transfer of accounts receivable belong to the disposition of accounts receivable. As a lower degree of creditor's rights disposition, the pledge of accounts receivable needs to be registered and publicized before it can take effect. Since only the pledge of power and power needs to be registered, the disposition of direct transfer of rights needs to be registered. In fact, the transfer of accounts receivable with a higher degree of disposition is based on the provisions of the transfer of claims, and the right is transferred from the date of entry into force of the contract. Therefore, this kind of dual regulation model will bring about the contradiction of legal theory and legal application. 4 Pledge of accounts receivable from the perspective of "registration antagonism" Response to disputes The crux of the above problems is that the pledge of accounts receivable in our country adopts the registration validity doctrine, while accounts receivable are different from ordinary movable property and have no appearance of rights to be delivered. Moreover, the establishment of pledge on accounts receivable creates the effect of priority compensation for the pledgee and naturally replaces the change of accounts receivable. The high value of pledge of accounts receivable meets the substantial needs of the transaction. If all changes of accounts receivable rights are registered, it is bound to reduce the liquidity of accounts receivable and deviate from the efficiency requirements of the parties to the transaction. Therefore, most scholars argue that the registration of adversarial doctrine in legal design can improve the efficiency of transactions as much as possible to meet the needs of the parties. Under this model, the registered assignee has priority over the unregistered assignee, and the first registered assignee has priority over the later registered assignee, and the problem described at the beginning of this article can be solved: Case I The pledge is registered first, the transfer of accounts receivable is later, regardless of whether the assignment is notified to the debtor, the registered pledgee B may fight the creditor's transferee C, has priority in the settlement of the accounts receivable, and the debtor's settlement to the creditor's transferee based on the notification is invalid. C's rights and interests can also be protected, because the effect of the right of quality can be as much as the pledge property subrogation, C can claim the right of priority compensation for the property of A's transfer of accounts receivable. In case II, A assigns the receivable and then pledges it is not entitled to dispose of it, but it does not affect the effectiveness of C's registered pledge against transferee B based on the registration confrontation system. This view is not only a theoretical idea, but also reflected in the judicial thinking of some courts. (2018) In Judgment No. 7222, the court held that "the transfer of accounts receivable has been registered in the credit center of the People's Bank of China for the unified registration of the ownership of movable property, and has been publicized to an unspecified person, which can be used against a third party". In addition, the settlement order of multiple factoring in Article 768 of the Civil Code also embodies the spirit of "registration antagonism": if the creditor of accounts receivable enters into multiple factoring contracts for the same accounts receivable, resulting in multiple factoring claims, the registered accounts receivable shall be obtained before the unregistered ones; If all of them have been registered, the accounts receivable shall be obtained in the order of registration time; If none is registered, the accounts receivable are obtained by the factor specified in the notice of assignment that first arrives at the debtor of the accounts receivable; if neither registered nor notified, the accounts receivable are obtained in proportion to the amount of the factoring financing or remuneration for services.

2022-09-20

Viewpoint... The legal analysis of the partnership's de-listing and withdrawal system.

According to the the People's Republic of China Partnership Law (hereinafter referred to as the "Partnership Law"), the main ways for partnership partners to withdraw from the partnership are: withdrawal with an agreed partnership period, withdrawal without an agreed partnership period, withdrawal of course, withdrawal from the partnership, and withdrawal from the partnership. This paper attempts to combine the legal provisions, case analysis, from a practical point of view of the partnership de-listing withdrawal system. 1. concepts and legal provisions Withdrawal is a legal fact or legal act in which a partner withdraws from the partnership and loses his or her partnership during the life of the partnership. According to the Partnership Law, at present, the main ways for partners to withdraw from the partnership are the withdrawal of the agreed partnership period, the withdrawal of the partnership without the agreed partnership period, the withdrawal of course, the withdrawal of the partnership. Expulsion means that during the life of the partnership, when a partner has a legal cause or a cause agreed upon in the partnership agreement, the other partners unanimously agree to expel the partner from the partnership and disqualify him from the partnership. Under the statutory circumstances of delisting and withdrawing from partnership as stipulated in Article 49 of the Partnership Law, if a partner has one of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners: The (I) fails to fulfill its capital contribution obligations; (II) losses to the partnership are caused intentionally or by gross negligence; The (III) has acted improperly in the execution of the partnership affairs; (IV) the cause agreed upon in the partnership agreement occurs. The resolution to remove the partner shall be notified in writing to the removed person. The date on which the removed celebrity receives the notice of removal, the removal takes effect and the removed celebrity withdraws from the partnership. If the removed celebrity disagrees with the resolution of delisting, he may, within 30 days from the date of receiving the notice of delisting, bring a suit in a people's court. Circumstances of 2. delisting and withdrawing from partnership 1. Failure of partners to meet their capital contribution obligations A partnership is jointly funded by all partners, and if one partner fails to meet his or her capital contribution obligations, the other partners agree to expel the partner from the partnership, which is permitted by law. However, in judicial practice, failure to fully fulfill the obligation of capital contribution is not a delisting matter. Case 1. (2019) No. 14, Min Zhong, Shan 10 The Court is of the view that the Resolution of the Partners of the Shiquan Gold Selection Factory in Zhen'an County is based on the provisions of Article 49, paragraph 1, paragraph 1, of the the People's Republic of China Partnership Law, "failure to fulfill the obligation of capital contribution" and Article 16 of the Partnership Agreement of the Shiquan Gold Selection Factory in Zhen'an County. The so-called "failure to fulfill the capital contribution obligation" of the partner refers to the situation in which the partner refuses or fails to fulfill the capital contribution obligation, and if the partner fulfills part of the capital contribution obligation, it does not belong to the situation of failure to fulfill the capital contribution obligation. In this case, the appellee Wang Ming'an has fulfilled part of the capital contribution obligation in accordance with the partnership agreement, so it does not meet the circumstances of removal due to non-capital contribution. Article 16 of the Partnership Agreement of Shiquan Gold Selection Factory in Zhen'an County stipulates the liability for breach of contract and is not the basis for delisting. Therefore, the decision made by the appellants Liu Baomin and Liu Yuying to remove Wang Mingan from the list does not conform to the law. Therefore, Liu Baomin and Liu Yuying's request to confirm the valid appeal request of "Resolution of Partners of Shiquan Gold Selection Factory in Zhen'an County" and "Notice of Removal of Partners of Shiquan Gold Selection Factory in Zhen'an County" was not supported by this court. Case 2. (2018) Beijing 0105 Minchu No. 61438 In this case, first of all, although LeEco has not fulfilled its capital contribution obligations as of April 24, 2018, but at this time it is still 8 years from the date of its capital contribution, Tao Yun Company claims that LeEco has not fulfilled its capital contribution obligations without factual basis, and this court will not accept it. Similar cases in which support for failure to fully fulfill the obligation of capital contribution are not a delisting matter include (2016) Jin 0116 Min Chu 44 and (2014) Bin Min Chu Zi No. 1030. In addition, the reasons for delisting stipulated in Article 49 of the Partnership Law also include "the occurrence of the reasons agreed upon in the partnership agreement". If the partnership agreement stipulates that the situation of "failure to fully fulfill the capital contribution obligation" is the reason for delisting the partner, the provisions may be applied to delisting the partner who has not fully fulfilled the capital contribution obligation. 2. The partner caused damage to the partnership by intentional or gross negligence. The reason for this delisting contains two elements: first, the subjective element, I .e. the partner's intentional or gross negligence, and the objective element, I .e. the loss of the partnership due to the partner's intentional or gross negligence. The Partnership Act does not clearly define the criteria for determining intentional or gross negligence and the criteria for determining loss. It is proposed to analyze the criteria for the identification of judicial practice through the following cases. Case 1. (2017) Joan 96 Min Zhong No. 340 The Court believes that the key to the legality and validity of the resolution of the Lingshui Zhongtong Shareholders' Meeting made by Pang Jianping and Huang Xiaojie lies in whether the resolution meets the substantive and procedural requirements. According to the relevant provisions of my country's Partnership Law, if a partner causes losses to the partnership due to intentional or gross negligence, he can be removed by resolution with the unanimous consent of the other partners; the removed celebrity will take effect from the date when the removed celebrity receives the notice of removal. The removed celebrity withdraws from the partnership; if the removed celebrity has objections to the removal resolution, he may file a lawsuit in the people's court within 30 days from the date of receiving the removal notice. As far as the substantive elements of the resolution are concerned, as mentioned above, Pang Haichuan's self-replacement of Zhang Sheng-xian and arrangement of Zhang Daping to take over the Yingzhou site are the fundamental reasons why Zongtong Lingshui Branch was fined. Pang Haichuan should bear the main responsibility for this. Therefore, it can be determined that Pang Haichuan's gross negligence has caused losses to the partnership and Pang Haichuan meets the conditions for being removed. As far as procedural elements are concerned, the partnership is a three-person partnership, with Pang Jianping and Huang Xiaojie accounting for a 54.55 per cent majority share, and the resolution was made with the unanimous consent of Pang Jianping and Huang Xiaojie, so it also meets the procedural requirements. To sum up, it can be confirmed that the resolution is legal and effective, and the delisting will take effect from the date when Pang Haichuan receives the notice. Case 2. (2020) Xiang 01 Min Zhong No. 9348 The Court believes that the focus of the dispute in this case is the legality and validity of the Partner Resolution. Article 49 of the the People's Republic of China Partnership Law stipulates: "If a partner has one of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners: The (I) fails to fulfill its capital contribution obligations; (II) losses to the partnership are caused intentionally or by gross negligence; The (III) has acted improperly in the execution of the affairs of the partnership; (IV) the cause agreed upon in the partnership agreement occurs. In this case, the agreement on the removal of the partner in the partnership agreement is consistent with the above provisions. During the duration of the partnership, Zhong Zhiguo personally collected 3293100 yuan from the quarry. Although it did not exceed the scope of the priority borrowing right stipulated in the Resolution of the First Shareholders' Meeting of Kiln Quarry, Zhong Zhiguo did not return the relevant funds within the agreed time limit after the priority borrowing was used, affecting the normal production and operation of the quarry. The quarry was forced to stop work around the Spring Festival in 2016 due to arrears with migrant workers' wages. Zhong Zhiguo did not come out coordination during this period, there is a major fault in this. In addition, Zhong Zhiguo borrowed money or guaranteed personal debts in the name of the quarry, but did not actively deal with them after Ren Ping and Ouyang Xi joined the quarry. As a result, creditors Tang Jianhui and Zhu Zhuqing sued the quarry respectively. During this period, the quarry paid Tang Jianhui all the case money 4 million yuan, which caused difficulties to the operation and management of the quarry. Zhong Zhiguo's behavior should also be regarded as gross negligence. On September 18, 2016, Zhong Zhiguo drove the vehicle to the quarry feed port for a few days, on the grounds that the financial statements were rejected, and his behavior was also improper in the execution of the partnership. Therefore, Ren Ping, Ouyang Xi and Dong Zhengwu formed the "Partner Resolution" on September 19, 2016, taking Zhu Tingting and Zhong Zhiguo's illegal acts such as embezzlement, embezzlement of quarry production funds and payment for goods, which have caused significant impact and serious losses to the partnership enterprise, and removed Zhu Tingting and Zhong Zhiguo, which has legal reasons and conforms to the agreement of the partnership agreement. The "Partner Resolution" has been unanimously agreed by the other partners, and has been sent to Zhu Tingting and Zhong Zhiguo by legal and reasonable means, and the form and procedure are legal and effective. Zhu Tingting and Zhong Zhiguo appealed that the resolution was invalid, and that the first-instance judgment was beyond the scope of the trial and had no factual and legal basis, and the court did not support it. Case 3. Shanghai No.1 Intermediate People's Court (2018) Shanghai 01 Min Zhong No. 6077 The delisting resolution in this case is based on the provisions of Article 27 of the Limited Partnership Agreement and the provisions of Article 49, paragraph 1, items 2 and 3 of the the People's Republic of China Partnership Law. Based on the basic facts ascertained in the case, it can be determined that as a general partner, Lize Company does have many irregularities, non-compliance with the agreement, and non-compliance with the law in the execution of affairs and duties, which are mainly manifested in: As a domestic entity approved by a government agency and jointly implementing equity investment with overseas investment entities, the status quo of its direct investment project ownership is seriously inconsistent with the records in the approval certificate, and all the shares are registered in the name of Lize's overseas affiliates; there is a pledge guarantee on the shares of the overseas project; Lize failed to disclose the basic information of the project to the limited partners immediately, fully and completely. There is no evidence that Litzer has obtained the unanimous consent or approval of the limited partners as a result of the above circumstances and conduct. Although there is no final conclusion on whether the above-mentioned negligence of Lize Company has caused losses to Leehom Partnership, it is an objective fact that there are major defects in the ownership registration of overseas investment projects. There are uncertainties in how to dispose of Leehom Partnership and its new executive partners, how to withdraw and how to make profits, and the inevitable cost expenditure during the period is also inevitable. It is true that Lize Company has contributed to the realization of income from overseas investment of Leehom Partnership and has also paid diligent labor services. However, it is also an objective fact that only by eliminating the current obstacles can all the investment income from overseas smoothly. Zhongheng Zhi Company, Liqin Yecheng and Hao Xin Xiangsheng removed Lize Company from the list at this critical moment, which seems to be a helpless move under balance. In judicial practice, partners in the execution of affairs, the performance of duties is not standardized, does not conform to the partnership agreement, does not conform to the provisions of the law, easy to be identified as the existence of intentional or gross negligence. There is no specific monetary criterion for the size of the loss, and the nature of the loss is in addition to the loss that has actually occurred or includes the loss that will occur in the future. 3. The partner has acted improperly in the execution of the partnership affairs. The Partnership Act does not specify how to define improper conduct. According to the interpretation of this provision by the Working Group on the Drafting and Revision of the Partnership Law, improper conduct refers to the act of a partner infringing on the rights and interests of the partnership or other partners and seeking personal gain in the course of carrying out the partnership affairs. Such as disposing of the real estate and intellectual property rights of the partnership without the unanimous consent of the partners; reducing or reducing the liabilities of others without authorization, or canceling the pledge guarantee or mortgage guarantee provided by others under the creditor's rights of the partnership, privately engaging in business activities that compete with the enterprise, and Collusion with others to transfer the property of the partnership has caused heavy losses to the partnership. The author also believes that improper behavior needs to have the objective element of causing damage to the rights and interests of the partnership and other partners, as well as the subjective element of seeking personal gain. Specifically, it can be subdivided into (1) the act of failing to fulfill the obligation of capital contribution (2) the unauthorized handling of partnership affairs, for example, the limited partner acts on behalf of the limited partnership to the outside world, the partner who does not have the right to execute the affairs of the partnership without authorization, the act of transferring or disposing of the property of the partnership before the liquidation of the partnership, and the partners' handling of the affairs without the unanimous consent of all partners as stipulated in the Partnership Law or the partnership agreement, and so on. Case 1. (2020) Ji 01 Min Zhong No. 736 The Court believes that the delisting decision made by the appellee on January 11, 2019 is valid. Article 49 of the the People's Republic of China Partnership Law stipulates: "If a partner has one of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners, The (I) fails to fulfill its capital contribution obligations; (II) losses to the partnership are caused intentionally or by gross negligence; The (III) has acted improperly in the execution of the partnership affairs; (IV) the cause agreed upon in the partnership agreement occurs ". In this case, Article 26 of the Partnership Agreement has clearly stipulated that "partners shall not engage in business that competes with the partnership on their own or in cooperation with others. A partner may not transact with the partnership without the consent of all partners. Partners are not allowed to engage in activities that harm the interests of the partnership", but Jilin Longyang Building Materials Co., Ltd. run by Li Huarong's family members has the same business scope as the partnership involved in the case. Li Huarong also stated that the technology he developed is also based on Jilin Longyang Building Materials Co., Ltd. The company and the patent applied to relevant departments in the name of Li Moumou. In addition, the partnership has the basic characteristics of human nature, therefore, the original trial found that Li Huarong's aforementioned actions violated the agreement, and then found that the delisting resolution made by Sun Lichao and Zhang Lin on January 11, 2019 was valid and not improper. 4. The causes agreed upon in the partnership agreement occur. In addition to the above three cases of delisting and withdrawal, the partnership agreement may agree on other circumstances of delisting and withdrawal; when a cause of delisting and withdrawal as agreed in the partnership agreement occurs, a partner may be delisted with the unanimous consent of the other partners. Conditions and procedures for 3. delisting and withdrawing from partnership According to Article 49 of the Partnership Law, the removal of a partner requires the following conditions: 1. There are reasons for the removal of a partner as stipulated in the first paragraph of Article 49 of the Partnership Law, or there are reasons for the removal of a partner as stipulated in the partnership agreement. 2. The removal of the partner was unanimously agreed by the other partners and was decided in writing by the other partners. As for the procedure of delisting and withdrawing from partnership, the author thinks that all partners (including the partners to be delisted) should be notified before the partnership meeting and the resolutions of the partnership meeting should be listed, including the delisted partners. The rights of defense and interpretation of the delisted partners cannot be deprived. In addition, the partnership law requires the unanimous consent of other partners. Therefore, from the perspective of the interpretation of the text, the unanimous consent of other partners here does not distinguish the proportion of the investment share, rather, it strictly requires a unanimous resolution of the partners other than the proposed de-listed partner. Legal effect of 4. delisting In accordance with Article 52 of Article 51 of the Partnership Law, the settlement shall be made in accordance with the property status of the partnership at the time of withdrawal, and the share of the property of the withdrawing partner shall be returned. If the withdrawing partner is liable for the losses caused to the partnership, the amount to be compensated shall be deducted accordingly. If there are outstanding partnership affairs at the time of withdrawal, the settlement shall be made after the settlement of the affairs. The method of refunding the withdrawing partner's share of property in the partnership shall be agreed upon in the partnership agreement or decided by all the partners, and may be refunded in currency or in kind. In the internal legal relationship of the partners, the general partner of the withdrawal shall bear unlimited joint and several liability for the debts of the partnership before the receipt of the de-listing resolution, and the withdrawing limited partner shall be liable for the debts of the limited partnership that occurred before the receipt of the de-listing resolution, with the property retrieved from the limited partnership at the time of withdrawal.

2022-09-19

The power of public welfare | Snow-covered plateau epidemic prevention, Zhongcheng Qingtai in action

Since early August, large-scale neo-crown epidemics have broken out in many parts of the Tibet Autonomous Region, particularly in Lhasa and Xigaze, which pose serious challenges to the prevention and control of the epidemic due to the vast territory of the Tibetan region, scattered populations and weak infrastructure. In the face of the extremely complex epidemic situation, Zhongcheng Qingtai (Renbu) Law Firm actively responded to the call of the Party and the government, not afraid of altitude sickness, not afraid of the risk of the epidemic, actively participated in the anti-epidemic activities, and with practical actions to help defend the epidemic. Zhongcheng Qingtai (Renbu) Law Firm is a branch directly under Zhongcheng Qingtai Law Firm. In response to the relevant requirements of the Ministry of Justice, the National Lawyer Industry Party Committee and the Shandong Lawyer Industry Party Committee, it was established in June 2022 in Xigaze City, Tibet Autonomous Region. "Lawyer County" Renbu County was established, located in Dejilin Town, Renbu County, Tibet Autonomous Region, with an altitude of 3780 meters. "Renbu" is a Tibetan transliteration, meaning "cornucopia". Renbu County is located in the valley of the middle reaches of the Yarlung Zangbo River, in the south of Tibet Autonomous Region and in the east of Xigaze City. The average altitude of the whole county is 3950 meters. The topography of Renbu County is dominated by high mountains, with ravines and deep mountains. The climate of Renbu County is complex and changeable, and natural disasters are frequent. Since the outbreak of the epidemic, Renbufen has taken a high political position and strong responsibility, actively responded to the call of the party committee and government of the autonomous region, carried forward the spirit of old Tibet, did not lack the spirit of lack of oxygen, did not fear hardship, and had a higher altitude, fully implemented the decisions and arrangements of the county party committee and county government on winning the epidemic prevention and control war, and joined the "front line" of epidemic prevention and control work, taking the initiative, fully cooperating and overcoming the difficulties together, Zhang Wei, a lawyer from the branch, actively participated in voluntary work such as duty at the main traffic roads, duty at nucleic acid detection points, duty in residential areas, handling of emergency rescue materials, and road cleaning in the county, so as to help push forward the epidemic prevention and control work with meticulous and thoughtful work. With the deepening of epidemic prevention work, in order to cooperate with the orderly promotion of the resumption of work and resumption of business, Zhang Wei lawyer in accordance with the relevant provisions of the new crown epidemic prevention and control and common disputes, carefully formulated the "new crown epidemic prevention and control and resumption of work and resumption of production public legal service manual" "new crown epidemic prevention and control and resumption of production related provisions compilation". A comprehensive review and summary of the main code of conduct, handling of labor relations, matters needing attention in operation and management and related bases related to the epidemic was conducted and submitted to the relevant administrative departments for reference, providing a strong supply of the rule of law and legal support for administrative functions, enterprises and workers. As a next step, Renbu Branch will give full play to the platform strength of Zhongcheng Qingtai Lawyers, continue to increase the publicity of epidemic prevention and control and resumption of work and production policies, resolve social conflicts in a timely manner, and help Tibetan compatriots to restore normal production and living order as soon as possible.

2022-09-19