Viewpoint... Bankruptcy proceedings and the lifting of height limit measures.

With the changes in the domestic and international economic situation and the need to optimize the domestic business environment, it has become a rigid policy to promote the merger, reorganization and liquidation of backward enterprises, and bankruptcy cases have also been included in the assessment indicators. the problem of legal application between bankruptcy procedures and measures to restrict high consumption has become more and more prominent, and the number of relevant legal consultation and enforcement objection agency cases has gradually increased. However, due to the lack of clear legal provisions, judicial practice is not uniform, this paper will be the debtor into the bankruptcy proceedings to be declared bankrupt, can lift the enterprise related personnel of the high limit measures to explore and analyze, with a view to providing reference for practical operation. The time node of the measure of lifting the high limit of the related personnel of the enterprise in the practice of 1. bankruptcy. The second paragraph of Article 2 of the provisions of the Supreme People's Court on restricting the high consumption of the person subject to execution (hereinafter referred to as the "provisions on restricting high consumption") stipulates that "if the person subject to execution is a unit, after the consumption restriction measures are taken, the person subject to execution and his legal representative, principal person in charge, person directly responsible for affecting the performance of debts and actual controller shall not carry out the acts specified in the preceding paragraph. Those who commit the acts specified in the preceding paragraph with personal property for private consumption may apply to the enforcement court. If the enforcement court's review is true, it shall be granted." Restricting high consumption and untrustworthy persons subject to enforcement are two different concepts, which are stipulated in the "Regulations on Restricting High Consumption" and "Several Provisions of the Supreme People's Court on Publishing the List of Untrustworthy Persons Subject to Enforcement" (hereinafter referred to as the "Regulations on Untrustworthy Persons Subject to Enforcement" "). Specific consumption restrictions include not taking planes, soft sleepers on trains, and second-class or above on ships; not spending in hotels, hotels, nightclubs, golf courses and other places above the star level; not purchasing vehicles that are not necessary for business operations; not traveling or vacations; not investing abroad; children are not allowed to attend high-fee private schools, etc. Generally speaking, after a company is included in the list of untrustworthy persons subject to enforcement and has been taken measures to restrict consumption, its legal representative, main person in charge, person directly responsible for affecting debt performance, and actual controller (hereinafter collectively referred to as corporate affiliates) may All can be taken by the court to restrict high consumption. Article 19 of China's Enterprise Bankruptcy Law stipulates that "after the people's court accepts the bankruptcy application, the preservation measures relating to the debtor's property shall be lifted and the enforcement procedure shall be suspended." However, the law does not clearly stipulate that when an enterprise enters bankruptcy proceedings, the related personnel of the enterprise can lift the measures to restrict high consumption. In practice, the related personnel of the enterprise usually apply for the lifting of the measures on their own or the administrator applies for the lifting of the measures to be dealt with by the people's court. However, there is no uniform mode of operation in local courts, such as most cases in the company is declared bankrupt, even after the end of the bankruptcy proceedings to lift the high limit measures, a few cases in the bankruptcy application stage can be lifted by the court support. 2. the difference between the two opinions (I) objection: If a company enters bankruptcy proceedings but has not yet declared bankruptcy (or if the reorganization plan has not yet been approved), the law shall not be lifted. 1. Main reasons and basis The courts that hold this opinion mostly believe that according to the provisions of the Supreme People's Court on the publication of the information on the list of untrustworthy persons subject to enforcement (hereinafter referred to as the "provisions on untrustworthy persons subject to enforcement"), after the person subject to enforcement is taken to limit the height, the height limit can only be lifted under three circumstances: that is, the person subject to enforcement provides a guarantee, the person applying for enforcement consent or the performance is completed. If the person being executed is only in insolvency proceedings, it is not yet a statutory cause for which a consumption restriction order should be lifted. Furthermore, it is believed that the original intention of Article 19 of the Enterprise Bankruptcy Law is that after the bankruptcy court accepts the enterprise bankruptcy case, the enforcement court should suspend the civil enforcement procedure against the debtor's property, so that the bankruptcy court can conduct unified management of all the debtor's property., Change the price and distribution, so as to ensure that all creditors are paid equally and fairly. Therefore, the content of the stay of execution should refer only to the seizure, seizure, freezing, realization and return of the debtor's property, and does not include other indirect enforcement measures of a non-property nature of the debtor (e. g. restrictions on consumption, restrictions on exit, etc.). According to the Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 513 of the Interpretation stipulates that "if the people's court in the place where the person subject to execution is domicile decides to accept the bankruptcy case, the enforcement court shall lift the preservation measures for the property of the person subject to execution. If the people's court in the place where the person subject to execution is domicile decides to declare the person subject to execution bankrupt, the enforcement court shall decide to terminate the execution of the person subject to execution. If the people's court in the place where the person subject to execution is domicile does not accept the bankruptcy case, the execution." The above provision is conditional on the decision to declare bankruptcy, as there is still the possibility of exiting the insolvency proceedings before the debtor is declared bankrupt. When the court makes a ruling declaring the bankruptcy of the executed enterprise, the enforcement court shall order the termination of the execution of the executed person. Upon termination of enforcement, all enforcement measures taken, including the consumption restriction order, shall be lifted. 2. Case Reference (1)(2021) Shanghai 0105 Zhihui No. 548: An Hongsong and Beijing Colas Chemical Technology Co., Ltd. Execution Ruling Letter for Disputes over Sales Contracts The purpose of the decision: This court believes that if the person subject to execution is declared bankrupt by the people's court of his domicile, the court shall rule to terminate the execution of the person subject to execution. The application of the bankruptcy administrator of the current executor is in accordance with the law, so the execution procedure in this case should be terminated. (2)(2019) Zhejiang No. 10 Zhifu No. 12: Zhejiang Mintai Commercial Bank Co., Ltd. Wenling Zeguo Sub-branch and Yangzhou Huidu Home Textile Co., Ltd. Other Cases Execution Review Execution Ruling Summary of the decision: The Court believes that, first of all, ...... if the executed enterprise only enters into bankruptcy proceedings, it does not yet belong to the statutory cause of the order of restriction of consumption should be lifted. Secondly, ...... The above-mentioned provisions are conditional on the decision to declare bankruptcy, because after the bankruptcy court accepts the bankruptcy application and before the declaration of bankruptcy, the debtor's enterprise as the executed person may still withdraw from the bankruptcy proceedings, and once the bankruptcy proceedings are withdrawn, the execution proceedings against the executed person may resume. Therefore, what should be lifted at this time is the preservation measures of the property of the executed person so that the bankruptcy proceedings can proceed normally, and the restriction of consumption measures that do not affect the normal conduct of the bankruptcy proceedings are not necessarily also lifted. Upon termination of enforcement, all enforcement measures taken, including the consumption restriction order, shall be lifted. Finally, in this case, according to the facts ascertained, the enforcement court had ruled to terminate the enforcement proceedings before the executor Huidu Company entered the bankruptcy proceedings, and the creditor's rights of the executor had not yet been realized, and the executor Huidu Company had not been ruled bankrupt. Therefore, there is no conflict between the bankruptcy liquidation procedure and the enforcement procedure as claimed by the applicant for reconsideration, and there is no legal basis for the termination of the execution of the executed person. There is no basis for the applicant for reconsideration to request the lifting of the consumption restriction order on the grounds that the executed person Huidu Company has entered bankruptcy proceedings and the applicant has also declared bankruptcy claims. (3)(2018) Ji 06 Zhiyi No. 158: An Hongsong and Beijing Kolas Chemical Technology Co., Ltd. Execution Ruling Letter of Implementation Review for Disputes over Sales Contracts Summary of Judgment: The Court believes that, although the Court ruled to accept the bankruptcy case of Baoding Tianwei Wind Power Blade Co., Ltd., it has not yet made a ruling on whether to pass the reorganization draft, nor does it have the conditions to lift the restriction on consumption order. (4)(2018) Zhejiang 0903 Executive No. 896 and 898: Zhang Xuefen and Li Zhikang Request to Confirm the Effectiveness of the People's Mediation Agreement Implementation Class Implementation Decision The main purpose of the decision: The person subject to execution has been declared bankrupt and the court has ruled that the case should be terminated. According to the Supreme People's Court<关于限制被执行人高消费及有关消费的若干规定>According to the provisions of Article 9, the decision is as follows: to lift the restrictions on the consumption behavior of Zhoushan Haiyu Aquatic Food Co., Ltd. The (II) agreed that after the court has made a ruling on the acceptance of the bankruptcy application, it may lift the consumption restriction measures against the executed person. 1. Main reasons and basis The courts that hold this opinion mostly believe that under the normal operation of the company, the legal representative and senior management decide the daily operation of the company and grasp the assets and liabilities of the company, which can have a greater impact on the specific implementation. The purpose of the height limit is to prevent it from using unit property consumption in the name of an individual, or to use personal property consumption first and then reimburse public funds to circumvent the prohibitive provisions of the judicial interpretation. After entering the bankruptcy proceedings, the debtor's property is taken over by the administrator, the enterprise's related personnel lose control of the enterprise, there is no possibility of abusing the company's property for high consumption, and then take measures to restrict consumption has no sense of supervision and implementation; in addition, this is also in line with the spirit of the document of the Supreme People's Court on further strengthening the concept of good faith civilization implementation in the implementation work (hereinafter referred to as the "good faith implementation opinions") for implementing the concept of good faith civilization implementation and avoiding excessive implementation. 2. Case and Document Reference (1)(2022) Lu 11 Zhifu No. 19: Zhang Kai, Rizhao Baojing Automobile Sales Service Co., Ltd. Other Cases Execution Review Execution Ruling Summary of the judgment: The court believes that the executed person Rizhao Baojing Automobile Sales Service Co., Ltd. failed to perform the payment obligations determined by the effective legal documents within the period specified in the execution notice. The court took measures to restrict high consumption of the executed person in accordance with the law. As the main person in charge of the executed person's company, the court is in accordance with Article 1 of the "Several Provisions of the Supreme People's Court on Restricting High Consumption and Related Consumption of the Executed Person, it is not inappropriate to impose a height limit on it. If a citizen, legal person or other organization believes that he has been wrongly restricted in consumption, he may apply to the enforcement court for correction. If the original legal representative or the main person in charge applies for the lifting of the restriction on consumption measures against him, he shall provide evidence to prove that he is not the actual controller of the unit and the person directly responsible for the performance of the debt. In this case, the objector has submitted to the court evidence that he no longer holds the post of supervisor and manager of the company subject to execution and has terminated the labor contract relationship with the person subject to execution. At present, the person subject to execution has entered into the substantive merger and reorganization procedure. Even if the objector is still the main person in charge of the enterprise, because the person subject to execution enters the merger and reorganization procedure, it has lost the effect of forcing the person subject to perform the debt by restricting high consumption, starting from the concept of good faith and civilized execution, the restriction on consumption of dissidents should be lifted in accordance with the law. (2)(2021) Hunan 0822 Executive Supervisor No. 2: Hunan Linli Rural Commercial Bank Co., Ltd., Zhangjiajie Jinhao Hotel Investment Co., Ltd. and other loan contract disputes, supervision and execution decisions The main purpose of the judgment: the applicant, Hunan Linli Rural Commercial Bank Co., Ltd., and the executed Zhangjiajie Jinhao Hotel Investment Co., Ltd. and Jinhao Property Management Co., Ltd. issued a consumption restriction order against the executed Zhang Shuguang and Zhou Changshan on July 23, 2018. On June 22, 2021, the Sangzhi County Procuratorate issued the Sang Jian Min Zhi Jian [2021] No. 43082200004 Procuratorial Recommendation, recommending that the Sangzhi County People's Court lift the consumption restriction order against Zhou Changshan and Zhang Shuguang in accordance with the law. The Court held that the court had accepted the bankruptcy liquidation of Zhangjiajie Jinhao Hotel Investment Co., Ltd. and terminated the execution. Judging from the liquidation of the bankruptcy property by the court, the creditor's rights of 5 million yuan of Hunan Linli Rural Commercial Bank Co., Ltd. of the application executor were guaranteed with priority. From the concept of good faith execution, the restrictions on consumption taken by Zhou Changshan and Zhang Shuguang should be temporarily lifted. (3)(2019) Yue 01 Zhi Fu No. 247: Zhang Weimin, Qingyuan Huatai Construction Engineering Co., Ltd. and Guangzhou Suijing Real Estate Development Co., Ltd. Other Cases Subject to Execution Review The purpose of the decision: the purpose of the consumption restriction measures is to urge and punish the executed person to seriously implement and solve the problem of debt settlement. However, after the executed person entered the liquidation procedure, the external repayment affairs of the executed person Sui Jing Company were taken over by the liquidation team of Sui Jing Company in accordance with the law, and Sui Jing Company was no longer able to individually repay the executor of this case, and its legal representative also lost The right to urge the company to perform its obligations has no effect on its legal representative to restrict consumption. At the same time, according to the materials submitted by Zhang Weimin, the applicant for reconsideration, he had already resigned as the legal representative of Suijing Company and was approved by the shareholders' meeting of Suijing Company. It was only due to various factors that he did not change his registration in the industrial and commercial department, and he was not the actual controller of Suijing Company. Therefore, the re-implementation of consumption restrictions on Zhang Weimin, the nominal legal representative of Suijing Company, has lost its practical significance and should be lifted. (4) "Answers to Several Questions of the Guangdong Provincial Higher People's Court on Restricting Consumption and Inclusion in the List of Persons Subject to Enforcement of Dishonesty" (April 2020) Twenty-four, Q: After the executed person enters the bankruptcy proceedings, should the people's court lift the restrictions on consumption? A: Before the people's court makes a ruling on the acceptance of the bankruptcy application, it is not necessary to lift the consumption restriction measures against the person subject to execution; after making the ruling on the acceptance of the bankruptcy application, the consumption restriction measures against the person subject to execution shall be lifted. Feasibility analysis of the lifting of the high limit measures after the acceptance of the 3. bankruptcy petition. The author tends to think that the restriction of consumption is also an enforcement act in the enforcement procedure, which should be suspended in accordance with the law after the executed person enters the bankruptcy procedure. Therefore, after the enterprise enters the bankruptcy proceedings, the consumption restriction order imposed on the related personnel of the enterprise because of the debtor's breach of trust should be lifted. The reasons are as follows: First of all, in accordance with the principle of "lifting weights with lightness", the measures to restrict high consumption should be lifted with reference to the provisions on the list of dishonesty. Article 10, paragraph 1, of the provisions on the list of untrustworthy persons stipulates: "under any of the following circumstances, the people's court shall delete the untrustworthy information within three working days: (5) due to trial supervision or bankruptcy proceedings, the people's court shall, in accordance with the law, rule to suspend the execution of the person subject to breach of trust." According to this article, after the court decides to accept the bankruptcy application, the untrustworthy person may apply for deletion of the untrustworthy information accordingly. However, the scope of sanctions and deterrence of the dishonest list are significantly higher than the measures to restrict high consumption. According to the legal principle of "lifting weights to lighten the weight", after the court accepts the bankruptcy application, it should refer to the "Regulations on the list of dishonest" to lift the high limit measures for related personnel of enterprises. Secondly, from the legislative purpose, the restriction of consumption of enterprise related personnel is not a disciplinary measure for enterprise related personnel, but only to prevent enterprise property from being squandered and transferred by operators, thus increasing the difficulty of implementation in place. Once an enterprise enters into bankruptcy proceedings, the administrator will fully take over the enterprise's property and business matters, and accept the supervision of the people's court and creditors, effectively manage the enterprise's property, there is no possibility of abusing the company's property for high consumption, and then restrict its personal private consumption has no legal significance. Moreover, Article 3, paragraph 2, of the "Regulations on Restricting Consumption" and Article 17, paragraph 1, item 1, of the "Opinions on the Implementation of Good Faith Civilization" both stipulate that the private consumption of high-level personnel associated with enterprises is not within the scope of restriction. Third, the lifting of the restrictions on high consumption by the enterprise's affiliates after the bankruptcy petition is accepted will not harm the interests of creditors.</关于限制被执行人高消费及有关消费的若干规定></中华人民共和国民事诉讼法>

2022-09-05

Administrative Litigation Vision (VII) | Administrative Litigation Prosecution Time Limit

Foreword As one of the legal elements of administrative litigation, the prosecution period of administrative litigation is related to whether citizens, legal persons or other organizations can exercise the right of action in accordance with the law, and then safeguard their legitimate rights and interests, which is an important part of the administrative litigation system. The time limit of administrative litigation is different from the limitation system of civil litigation. For different types of administrative actions, the starting point and length of the prosecution period are not the same, which needs to be accurately grasped. The nature of the time limit for the prosecution of 1. administrative litigation. Administrative litigation does not apply the statute of limitations system of civil litigation, but the system of the time limit for prosecution. The time limit of administrative litigation is the legal time limit for the plaintiff to file an administrative lawsuit to the court and seek judicial relief. The system of time limit for prosecution is different from the system of limitation of action. First of all, in general, there is no suspension or interruption of the prosecution period of administrative litigation, only the delay of the prosecution period and the extension of the application under certain circumstances. Article 48 of the Administrative Litigation Law stipulates: "If a citizen, legal person or other organization delays the time limit for prosecution due to force majeure or other reasons that do not belong to him, the time delayed shall not be counted in the time limit for prosecution. If a citizen, legal person or other organization delays the time limit for prosecution due to other special circumstances other than those specified in the preceding paragraph, he or she may apply for an extension of the time limit within ten days after the obstacle is removed, and the time limit." Secondly, the time limit for prosecution in administrative litigation is one of the statutory prosecution requirements. The people's court should take the initiative to review it in accordance with its functions and powers. If the prosecution exceeds the statutory time limit without justifiable reasons, the court shall rule not to accept it. If the case has been filed, it shall rule to reject the prosecution. The Supreme People's Court on the application<中华人民共和国行政诉讼法>Interpretation of the "(hereinafter referred to as the" applicable interpretation ") article 69;" one of the following circumstances, has been filed, shall be ruled to reject the prosecution: ...... (II) beyond the statutory prosecution time limit and no administrative procedure law article 48 of the circumstances......" In the case of (2017) Supreme Law Application No. 5410, the Supreme Court held that the time limit for prosecution in the administrative procedure law is different from the time limit for litigation in the civil law. The time limit for prosecution in the Administrative Procedure Law is one of the statutory conditions for prosecution. If the prosecution period is exceeded, the procedural right to enter the entity will be lost. Since administrative cases are public law litigation, involving public interests and the stability of social management order, the people's court should review whether the prosecution meets the statutory conditions, including whether the statutory prosecution time limit is exceeded. It is not that the parties do not advocate that the people's court will not review the matter. 2. time limit for prosecution of different administrative acts (I) time limit for prosecution of specific administrative acts Article 46 of the "Administrative Litigation Law" stipulates: "If a citizen, legal person or other organization directly files a lawsuit in a people's court, it shall file it within six months from the date when he knows or should know that an administrative act has been made. Except as otherwise provided by law. If a case filed for real estate has been filed for more than 20 years from the date of the administrative act, and other cases have been filed for more than five years from the date of the administrative act, the people's court will not accept it." Article 65 of the applicable interpretation stipulates: "if a citizen, legal person or other organization does not know the contents of an administrative act made by an administrative organ, the time limit for prosecution shall be calculated from the date when he knows or should have known the contents of the administrative act, but the maximum time limit for prosecution shall not exceed the time limit stipulated in the second paragraph of Article 46 of the administrative procedure law." The first paragraph of Article 64 of the applicable interpretation stipulates: "if an administrative organ fails to inform a citizen, legal person or other organization of the time limit for prosecution when making an administrative act, the time limit for prosecution shall be calculated from the date when the citizen, legal person or other organization knows or should know the time limit for prosecution, but the maximum period from the date when the content of the administrative act is known or should be known shall not exceed one year." 1. The starting point of the time limit for the prosecution of administrative proceedings. According to the provisions of the law, when the administrative organ informs the time limit for prosecution, the starting point is when the citizen, legal person or other organization knows or should know the content of the administrative act; if it is not informed, it shall start from the date when the time limit for prosecution is known or should be known. It should be noted that the time limit for prosecution of administrative cases starts from the date on which the content of the administrative act is known or should be known, rather than from the date on which the illegal administrative act is known or should be known [see (2016) Supreme Law Application No. 1798]; The people's court cannot take the date on which the accused administrative act is signed as the starting point for the time limit for prosecution, however, the day after the date of service shall be taken as the starting point to calculate whether the prosecution of a citizen, legal person or other organization exceeds the statutory prosecution period [see (2015) case No. 1727 of the Bank of China]; The starting point of the maximum prosecution period shall be calculated from the date of the administrative act. 2. The length of the administrative litigation prosecution period. According to the provisions of the law, when the administrative organ informs the time limit for prosecution, the time limit for prosecution of administrative litigation shall be subject to two time limit conditions at the same time: six months from the date when the citizen, legal person or other organization knows or should know the content of the administrative act, and does not exceed the maximum time limit for prosecution. In the case that the administrative organ does not inform the time limit for prosecution, the time limit for prosecution needs to apply three time limit conditions at the same time: six months from the date when the citizen, legal person or other organization knows or should know the time limit for prosecution, and the maximum time limit for prosecution shall not exceed one year from the date when the citizen, legal person or other organization knows or should know the content of the administrative act. The above prosecution period needs to be met at the same time, otherwise the right to seek judicial relief will be lost. The time limit for the prosecution of the (II) request to confirm the invalidity of the administrative act. Whether the action to confirm the invalidity of an administrative act is limited by the time limit for prosecution, Article 94 of the interpretation of application stipulates: "if a citizen, legal person or other organization sues for the revocation of an administrative act, and the people's court finds that the administrative act is invalid after examination, it shall make a judgment confirming the invalidity. If a citizen, legal person or other organization sues to confirm that the administrative act is invalid, and the people's court considers that the administrative act is not invalid, and after explanation, if the plaintiff requests to revoke the administrative act, it shall continue to hear the case and make a corresponding judgment in accordance with the law; if the plaintiff requests to revoke the administrative act but exceeds the statutory time limit for prosecution, it shall rule to reject the lawsuit; if the plaintiff refuses to change the claim, the judgment." Article 162 stipulates: "If a citizen, legal person or other organization files a lawsuit against an administrative act made before May 1, 2015 and requests confirmation that the administrative act is invalid, the people's court shall not file the case." In the case of (2020) Supreme Law Bank No. 341, the Supreme Court held: "A major and obviously illegal administrative act is an invalid administrative act, which is absolutely invalid from the beginning and does not have legal effect due to the passage of time. The parties may file a request for confirmation of invalidity at any time for administrative acts made after May 1, 2015, and are not limited by the time limit for prosecution. At the same time, in order to avoid the abuse of the parties to confirm the invalid claim to circumvent the prosecution time limit system, the plaintiff party should prove that the accused administrative act is invalid, and the defendant party may also present evidence to deny the other party's claim. The people's court shall examine whether the administrative act is invalid, and if it considers that the administrative act is invalid, it shall not be limited by the time limit for prosecution; if it considers that the administrative act is not invalid, the people's court shall explain it to the plaintiff. It has been explained that if the plaintiff changes the request for revocation of the administrative act, the people's court shall continue to hear and review whether it meets the time limit for the revocation of the lawsuit. If the time limit for the statutory lawsuit is exceeded, it shall rule to reject the lawsuit; if the plaintiff refuses to change the request, the judgment shall reject the lawsuit. request." Therefore, an action to confirm the invalidity of an administrative act is not limited by the time limit for prosecution. (III) time limit for prosecution of administrative omission Article 47 of the administrative procedure law stipulates: "if a citizen, legal person or other organization applies to an administrative organ for the performance of its legal duties to protect its personal rights, property rights and other legitimate rights and interests, and the administrative organ fails to perform it within two months from the date of receiving the application, the citizen, legal person or other organization may bring a lawsuit to the people's court. Where laws and regulations provide otherwise for the time limit for administrative organs to perform their duties, such provisions shall prevail. Citizens, legal persons, or other organizations request administrative agencies to perform their statutory duties to protect their personal rights, property rights and other legitimate rights and interests in emergency situations. If the administrative agency fails to perform, the filing of a lawsuit is not subject to the time limit specified in the preceding paragraph." Article 66 of the applicable interpretation stipulates: "if a citizen, legal person or other organization, in accordance with the provisions of paragraph 1 of Article 47 of the Administrative procedure Law, brings a lawsuit against an administrative organ for failing to perform its statutory duties, it shall file a lawsuit within six months from the date of expiration of the time limit for the administrative organ to perform its statutory duties." According to the provisions of the law, the starting point of the litigation period is the date when the administrative organ performs its statutory duties. Unless otherwise provided by laws and regulations, the performance period is in principle two months from the date of receipt of the application, and the prosecution period is six months from the starting point. However, there is no clear provision in the current law on the time limit for prosecution when administrative organs perform their statutory duties in accordance with their powers. In general, as long as the statutory duties to be performed by the administrative organ ex officio still exist legally and effectively, the administrative organ shall continue to bear the burden as an obligation, which shall not be eliminated by the administrative organ's failure to perform. The statutory duties that the administrative organ should perform ex officio shall not be changed into the statutory duties that should be performed in accordance with the application by the administrative counterpart, that is, the time limit for prosecution stipulated in Article 47 of the Administrative Procedure Law is not applicable in this case [see (2020) Supreme Law No. 332]. Time limit for prosecution of administrative reconsideration decisions by (IV) Article 45 of the Administrative Litigation Law stipulates: "If a citizen, legal person or other organization refuses to accept the reconsideration decision, he may bring a suit in a people's court within 15 days from the date of receipt of the reconsideration decision. If the reconsideration organ fails to make a decision within the time limit, the applicant may bring a suit in a people's court within 15 days from the date of expiration of the reconsideration period, unless otherwise provided for by law." Article 31 of the "the People's Republic of China Administrative Reconsideration Law" stipulates: "The administrative reconsideration agency shall make an administrative reconsideration decision within 60 days from the date of accepting the application; except that the administrative reconsideration period stipulated by law is less than 60 days. If the situation is complicated and the administrative reconsideration decision cannot be made within the prescribed time limit, it may be appropriately extended with the approval of the person in charge of the administrative reconsideration organ, and the applicant and the respondent shall be notified; however, the extension period shall not exceed 30 days at most." If the reconsideration organ informs citizens, legal persons or other organizations of the time limit for filing a lawsuit, if it is not satisfied with the reconsideration decision (including the decision not to accept the case) made by the reconsideration organ, the starting point of the litigation time limit shall be the date of receipt of the reconsideration decision; if it is not satisfied with the reconsideration organ's inaction, the starting point of the litigation time limit shall be the date of expiration of the reconsideration time limit, which is generally 60 days. The time limit for reconsideration shall be 15 days from the starting point. If the administrative body for reconsideration fails to inform the citizen, legal person or other organization of the time limit for filing a lawsuit, the starting point of the time limit for filing a lawsuit shall be the date on which the citizen, legal person or other organization knows or should have known the time limit for filing a lawsuit, and the time limit shall be 15 days, but the maximum period shall not exceed one year from the date on which the content of the reconsideration decision is known or should be known. Article 58 of the "Applicable Interpretation" stipulates: "The laws and regulations do not stipulate that administrative reconsideration is a necessary procedure for filing an administrative lawsuit. After a citizen, legal person, or other organization applies to the reconsideration agency for administrative reconsideration, and the reconsideration agency agrees to withdraw the reconsideration application. If a lawsuit is filed against the original administrative act within the statutory prosecution time limit, the people's court shall file a case in accordance with the law." According to the provisions of the law, if an application for reconsideration is withdrawn, the time limit for the prosecution of the original administrative act shall apply to the prosecution of the original administrative act. (V) time limit for prosecution of administrative agreements Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases stipulates: "The People's Court shall apply the provisions of the Administrative Procedure Law when trying administrative agreement cases; if there are no provisions in the Administrative Procedure Law, reference shall be made to the provisions of the Civil Procedure Law." Article 25 stipulates: "if a citizen, legal person or other organization brings a lawsuit against an administrative organ for failing to perform in accordance with the law or failing to perform an administrative agreement in accordance with the agreement, the limitation of action shall be determined with reference to the norms of civil law; if a lawsuit is filed against an administrative organ for changing or rescinding an administrative agreement, the time limit for prosecution shall be determined in accordance with the Administrative procedure Law and its judicial interpretation." Therefore, the provisions of Article 46 of the Administrative Procedure Law on the fixed duration of litigation can be applied to the period of litigation of administrative agreements, as well as the provisions of the Civil Code on the termination and interruption of the statute of limitations. In the case of (2021) Liao 10 Xing Zhong No. 60, the court of first instance held that according to the provisions of Article 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases, if a citizen, legal person or other organization fails to bring a lawsuit against an administrative organ in accordance with the law or fails to perform an administrative agreement in accordance with the agreement, the limitation of action shall be determined with reference to civil legal norms. This case is a case in which the plaintiff sued the administrative organ for failing to perform the administrative agreement as agreed. According to the provisions of this article, the provisions of the civil procedure law on the interruption of the limitation of action shall be applied. The plaintiff in this case has been claiming rights until the prosecution, so the limitation of action is interrupted, and the defendant's opinion that the case exceeds the limitation of action is not supported. Although the court of second instance revoked the ruling of the court of first instance, the reason was that there was evidence to prove that the people's Government of Anping Township had fulfilled the resettlement agreement signed by both parties, and the appellee's first instance application to change the housing resettlement to monetary compensation had no factual basis, rather than exceeding the litigation period. Therefore, this case can still provide reference for the duration of litigation in administrative agreement cases. (VI) time limit for prosecution of administrative compensation According to Article 14 of the State Compensation Law of the People's Republic of China, if the organ under compensatory obligations fails to make a decision on whether to compensate within the prescribed time limit, the claimant may bring a lawsuit to the people's court within three months from the date of expiration of the time limit. If the claimant for compensation has any objection to the method, item or amount of compensation, or if the organ under compensatory obligations makes a decision not to compensate, the claimant may, within three months from the date on which the organ under compensatory obligations makes the decision to compensate or not to compensate, bring a suit in a people's court. The Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases, which came into effect on May 1, 2022, make clearer provisions on the time limit for administrative compensation litigation. According to this provision, citizens, legal persons or other organizations shall, within two years from the date when they know or should know that an administrative act infringes upon their legitimate rights and interests, apply to the organ under compensatory obligations for administrative compensation. If the organ under compensatory obligations fails to make a decision on compensation within two months from the date of receipt of the application for compensation, a citizen, legal person or other organization may bring an administrative compensation lawsuit in accordance with the relevant provisions of the Administrative procedure Law. Where a citizen, legal person or other organization files an administrative lawsuit and requests administrative compensation at the same time, the provisions of the Administrative Procedure Law on the time limit for prosecution shall apply. If a citizen, legal person or other organization only disagrees with the administrative compensation part of the administrative reconsideration decision and files an administrative compensation lawsuit within 15 days from the date of service of the reconsideration decision, the people's court shall accept it according to law. When an administrative organ makes an administrative reconsideration decision with compensation content, if it fails to inform citizens, legal persons or other organizations of the time limit for filing a lawsuit, the time limit for filing a lawsuit shall be calculated from the date when the citizens, legal persons or other organizations know or should know the time limit for filing a lawsuit, but it shall not exceed one year from the date when the citizens, legal persons or other organizations know or should know the content of the administrative reconsideration decision. 3. epilogue </中华人民共和国行政诉讼法>

2022-09-05

Dynamic. The first creditors' meeting of the bankruptcy liquidation case of the administrator of Zhongcheng Qingtai Jinan was held smoothly.

At 9: 00 a.m. on Monday, August 29, 2022, under the auspices of the people's Court of Pingyin County, Jinan City, the first creditors' meeting of the bankruptcy liquidation case of Jinan Meiao New Building Materials Co., Ltd., which was managed by Zhongcheng Qingtai Jinan, was successfully held. Due to the special period of the new coronary pneumonia epidemic, this creditors' meeting was held on a network basis. Representatives of administrators, audit institutions, evaluation institutions, legal representatives of debtors and staff representatives attended the meeting on the spot. Creditors who have declared their creditor's rights attended the meeting through the national enterprise bankruptcy reorganization information network, and the online participation rate reached 90.2. At the meeting, the administrator made a report on the performance of his duties, a report on the submission to the creditors' meeting for verification of claims, a report on the submission to the creditors' meeting for review of the administrator's remuneration programme; the auditing body made an audit report and the appraisal body made an appraisal report. The administrator read out the report on the Management Plan for the Bankruptcy Property (Draft), the Plan for the Revaluation of the Bankruptcy Property (Draft), the Method of Convening the Creditors' Meeting and the Rules of Procedure and submitted it to the creditors' meeting for consideration. After the voting creditors at the meeting, the voting motion was passed by a high vote, which laid a solid foundation for the next stage of bankruptcy liquidation. In the next step, the manager will continue to do a good job in the disposal of relevant assets under the guidance and supervision of the people's Court of Pingyin County. The administrator will continue to adhere to the principle of "according to law, standardization, efficiency and fairness", scrupulously perform his duties, and carry out follow-up work diligently and conscientiously under the supervision of the court and creditors, so as to safeguard the interests of creditors to the maximum extent and ensure the smooth progress of bankruptcy proceedings.

2022-08-30

Dynamic | Light and Future, Stars and Sea-The First Phase of Zhongcheng Qingtai's "Light and Stars" Youth Training Camp Successfully Concluded

On August 27, the "Guanghe Xingchen" youth training camp opened its most colorful one-Zhongcheng Qingtai lawyers brought wonderful and rich theoretical and practical courses. Gong Lixin, Director of Zhongcheng Qingtai Administrative Committee, Geng Guoyu, Director of Zhongcheng Qingtai Jinan Institute, Gao Chang, Director of West Coast Institute, Qiao Aijun, Director of Qingdao Regional Wind Control, Zhao Kaiyong, Director of Jinan Real Estate Department II, and Hu Youbin, Director of Jinan Company Department III, respectively gave lectures to empower young lawyers with their theoretical literacy and practical skills. With green mountains and green waters, light breeze and clear sky, the youth training camp students started the yellow river morning run in the morning. Through group running, not only honed the lawyer's firm

2022-08-29

The Future of Light and Harvest, the Sea of Stars-The First Phase of Zhongcheng Qingtai's "Light and Harvest Stars" Youth Training Camp Successfully Concluded

On August 27, the "Guanghe Xingchen" youth training camp opened its most colorful one-Zhongcheng Qingtai lawyers brought wonderful and rich theoretical and practical courses. Gong Lixin, Director of Zhongcheng Qingtai Administrative Committee, Geng Guoyu, Director of Zhongcheng Qingtai Jinan Institute, Gao Chang, Director of West Coast Institute, Qiao Aijun, Director of Qingdao Regional Wind Control, Zhao Kaiyong, Director of Jinan Real Estate Department II, and Hu Youbin, Director of Jinan Company Department III, gave each other their skills to empower young lawyers with theoretical literacy and practical skills. With green mountains and green waters, light breeze and clear sky, the youth training camp students started the yellow river morning run in the morning. Through group running, not only hone the lawyer's firm willpower, exercise physical fitness, but also cultivate the young lawyer's enterprising and enterprising work spirit. After the morning run, Director Gong Lixin explained to the students the "Development Outline of Zhongcheng Qingtai 2021-2025". Director Gong explained to the students the development strategy, cultural construction and strategic development direction of Zhongcheng Qingtai from three aspects: guiding ideology, work objectives and work ideas. It is emphasized that Zhongcheng Qingtai will firmly promote the overall layout of the region, build a national strong institute and an international service network. Director Gong hopes that young lawyers will keep up with the strategic layout of the 14th Five-Year Plan and the strategic development of Zhongcheng Qingtai, constantly innovate and keep up with the times. Lawyer Hu Youbin gave a lecture on "Overview of Legal Due Diligence and Analysis of Key Issues". He systematically explained the whole process of legal due diligence from four major sections: the meaning and function of legal due diligence, principles and workflow, main methods and basic methods and key contents. Gao Chang shared the "Non-performing Assets Due Diligence Practice", from the non-performing assets business overview, non-performing assets legal due diligence main content, common risk analysis and tips four aspects, combined with their own rich practical experience with the students to exchange and discuss the non-performing assets legal due diligence practice. Lawyer Qiao Aijun gave a lecture on "Key Points of Legal Due Diligence for Equity Mergers and Acquisitions". Combined with his rich practical experience, he explained the practical experience of legal due diligence for equity mergers and acquisitions in all aspects, including 11 aspects such as the subject qualification and historical evolution of the target company and three dimensions of material preparation, channel verification and key point review. Lawyer Zhao Kaiyong explained the "Real Estate Legal Due Diligence Practice", from three aspects: an overview of real estate legal due diligence, the main process of real estate legal due diligence, and the analysis of common problems in real estate legal due diligence, combined with his own rich practical experience, to provide students with new methods and new ideas for real estate legal due diligence practice. Director Geng Guoyu gave a lecture on "Culture and Party Building of Zhongcheng Qingtai Law Firm" to the students. Director Geng stressed that Zhongcheng Qingtai should devote itself to strengthening political guidance, realizing the integrated development of Party building and building a team of lawyers with the same heart and mind as the Party. It is necessary to continuously build a solid talent base for the long-term development of the law firm, strengthen professional empowerment, and adhere to the high-quality development of the law firm in the overall situation ", show the responsibility of a large-scale institute; Director Geng also explained in depth the cultural concepts of Zhongcheng Qingtai's" virtue "," gathering "," wide "," he "and" diligence "for the students. The content of this training is based on legal theory, focuses on judicial practice, attaches importance to cultural inheritance, cultivates team spirit, the lecturers have a high strategic position, rich business experience, and profound research results. The students listened carefully and carefully, and took notes. The applause was frequent and the praise was full. The students said that they had benefited a lot from the course explanation of the participants, and gained new understanding and improvement in their own spiritual connotation and professional ability. After the course, the closing ceremony of the first phase of the "Guanghe Xingchen" youth training camp was ushered in. The first was the award ceremony. Through the jury and student voting, five categories of awards including outstanding students and the best outstanding team were awarded. After that, the flag handing ceremony was held. The monitor Qu Mengyu spoke on behalf of the first phase of the students, thanking the big family of Zhongcheng Qingtai for providing a broad growth space for young lawyers, providing a good learning and communication platform for the students, and returned the camp flag to Du Wentang. Finally, Han Honggang, director of Zhongcheng Qingtai General Office, delivered a closing speech. Director Han said that Zhongcheng Qingtai focused on regional integration and development, helping to train young lawyers. Gathering the strength of the crowd to cultivate one's moral integrity and establish a successful career. Zhongcheng Qingtai has opened up a world of its own in the turbulent legal service market of 40 years, and is moving towards a higher goal. Young lawyers are the successors, successors and strivers of Zhongcheng Qingtai to build a first-class strong institute. I hope Zhongcheng Qingtai young lawyers can keep improving through this youth training camp, constantly polish their professional legal service ability, and become an excellent Zhongcheng Qingtai lawyer! Conclusion "The sea is wide and the sky is high for birds to fly." The first phase of the "Light and Stars" youth training camp came to a successful conclusion. "Guanghe Xingchen" Young Lawyer Training Camp is one of the professional training activities carried out by Zhongcheng Qingtai Lawyers Office for lawyers and paralegals who have been practicing for less than three years. It is also one of Zhongcheng Qingtai series of young lawyer training programs. The "Guanghe Xingchen" youth training camp aims to improve the political literacy and cultural connotation of young lawyers, strengthen teamwork capabilities, enhance the ability to prevent practice risks, improve the professional skills of young lawyers, and promote the exchange and cooperation of young lawyers in various branches. "Youth is prosperous, the country is prosperous", and the same is true for the development of Zhongcheng Qingtai Law. Today Zhongcheng Qingtai empowers young lawyers, and tomorrow Zhongcheng Qingtai is proud of young lawyers!

2022-08-29

Dynamic | Wang Yang Baixue, a lawyer from Zhongcheng Qingtai Jinan Institute, was invited to participate in the seminar on "Detailed Rules for the Implementation of the Identification and Management of Buddhist Staff in Shandong Province (Trial) (Draft for Comments)"

In order to standardize the identification and management of Buddhist clergy in our province, the Shandong Buddhist Association has carried out the work of revising the implementation rules for the identification and management of Buddhist clergy in Shandong Province (for trial implementation). Under the policy guidance of the policy and regulation department and the religious department of the Shandong ethnic and religious Commission, the detailed rules for implementation (for trial implementation) (draft for soliciting opinions) has been formed. The Shandong Buddhist Association issued a work notice, requiring the Buddhist associations of all cities to carefully study the content of the detailed rules and put forward specific amendments and suggestions. On the morning of August 26, the Jinan Buddhist Association held a consultation meeting on the implementation rules for the identification and Management of Buddhist staff in Shandong Province (for trial implementation) (draft for soliciting opinions). A total of about 30 members of the Jinan Buddhist Association, responsible persons of Buddhist places in Jinan, Buddhist teachers and perennial legal advisers attended the discussion. The staff of the Shandong Buddhist Association attended the meeting, and relevant personnel from the Liaison Center of the Shandong Provincial Civil Affairs Committee and the Religious Department of the United Front Work Department of the Jinan Municipal Committee of the Communist Party of China attended the meeting as nonvoting delegates. The symposium was presided over by Master Hongan, vice president and secretary-general of the Provincial Buddhist Association and president of the Jinan Buddhist Association. Master Hongan gave a relevant explanation on the work of revising the "Implementation Rules for the Identification and Management of Buddhist Teaching Staff in Shandong Province (Trial)", and put forward relevant opinions on the "Implementation Rules (Trial) (Draft for Solicitation of Comments)". Claim. Participants carefully read the contents of the "Implementation Rules (Trial)" and put forward some opinions and suggestions on the resumes, academic qualifications, marriage certification materials, and household registration information. Wang Yang Baixue, perennial legal adviser of Jinan Buddhist Association and lawyer of Zhongcheng Qingtai Jinan Institute, explained in detail some professional terms, classification of illegal and criminal acts, standardization of relevant certification materials and other provisions in the regulations from five aspects of seriousness, practicality, comprehensiveness, scientificity and legality, and put forward suggestions for revision of some contents, it has been fully recognized and praised by the Liaison Center of the Shandong Provincial Civil Affairs Commission, the Religious Department of the United Front Work Department of the Jinan Municipal Committee of the Communist Party of China, the Shandong Buddhist Association, and the Jinan Buddhist Association.

2022-08-29

Dynamic... Zhongcheng Qingtai Jinan Institute Li Heng lawyer was invited to give a lecture for the construction project cost appraisal exchange meeting of China Construction Eighth Bureau.

On August 26, the construction project cost appraisal exchange meeting of China Construction Eighth Bureau was held in Jinan. Xie Shengmei, general counsel and general manager of the contract and legal department of China Construction Eighth Bureau, presided over the meeting. A total of more than 400 people attended the meeting, including general counsel, contract and legal department manager, legal director of third-level units, case business backbone and settlement management personnel. Lawyer Li Heng, deputy director, senior partner and president of the Law Research Institute of Zhongcheng Qingtai Jinan Institute, was invited to give a lecture on practical experience and skills of construction project cost appraisal at the meeting. Lawyer Li Heng introduced the case of project cost appraisal, combined with specific laws and regulations and construction project cost appraisal norms, and gave a detailed explanation of the practical problems existing in the six aspects of appraisal subject qualification, appraisal procedure, appraisal method, appraisal opinion, and remedy way of appraisal opinion dispute, which has strong replicability and practical guidance and was well received by the participants.

2022-08-29

Dynamic | Zhongcheng Qingtai "Guanghe Xingchen" Youth Training Camp Phase I Officially Opens

On August 26, 2022, the first phase of Zhongcheng Qingtai's "Guanghe Xingchen" youth training camp officially opened in Dezhou, Shandong Province. More than 50 outstanding young lawyers from 19 branches of Zhongcheng Qingtai gathered in Qihe, the "Yellow River Water Village", to start a two-day course. Han Honggang, director of Zhongcheng Qingtai General Office, Du Wentang, director of Jinan Administrative Committee, Ai Xiansong, director of Dezhou Institute, Gao Chang, director of West Coast Institute, and Yu Cuilan, member of Jinan Administrative Committee, attended the opening ceremony. First of all, Ai Xiansong, director of Zhongcheng Qingtai Dezhou Institute, delivered a welcome speech, saying that Zhongcheng Qingtai young lawyers should "have faith in their hearts", "have the overall situation in their hearts" and "serve with feelings". This was followed by the appearance of the class committee and the group. Through the self-recommend of the students in the early stage, the first phase of the youth training camp completed the formation of the class committee and the distribution of the group: monitor Qu Mengyu, deputy monitor Pan Yang, study member zhaowei, publicity member Zang Fa Hong, sports member Chen Huaiyuan, and life member liyao. In the group style display session, the students of the youth training camp were divided into six groups, namely, "one group of star Yao mage team", "two groups of brave team", "three groups said the right team", "four groups of new youth team", "five groups of group formation" and "six groups of zhonghe yixin team". each group took the stage to introduce themselves and cheer for themselves. Finally, Director Du Wentang, Director of the Administrative Committee of Zhongcheng Qingtai Jinan Institute, presented the flag to Qu Mengyu, the monitor of the first phase of the "Guanghe Xingchen" youth training camp. After the opening ceremony, the students entered the practical course of legal due diligence investigation. Director Han Honggang, Director Du Wentang, Director Ai Xiansong, Director Gao Chang and Director Yu Cuilan, as clients, listened to the reports of various groups on the working methods and plans, work priorities and legal due diligence reports on the special project of legal due diligence for the proposed equity acquisition of a wholly state-owned company, and put forward relevant questions on the project, on-site answers, and finally make a score. In the evening, more than 50 young lawyer students gathered at the "Young Lawyer Development Forum" to discuss and give speeches from three aspects: "Young Lawyer Career Planning", "Young Lawyer Professional Promotion", and "Young Lawyer Business Development. Finally, Director Du Wentang made a concluding speech, hoping that every young lawyer can gain and grow through "Guanghe Xingchen" and achieve his own glory on the platform of Zhongcheng Qingtai.

2022-08-27

Dynamic | Zhongcheng Qingtai Jinan Institute Liu Pengfei Lawyer Invited to Participate in Provincial Government Regulations Expert Argumentation

On the morning of August 25, 2022, the expert demonstration meeting on the revision of the "two regulations" organized by the Provincial Department of Justice was held in Jinan. The meeting invited the staff of relevant departments directly under the provincial government, the staff of the Municipal Bureau of justice, university professors, Party school professors and lawyers to attend. Lawyer Liu Pengfei of our institute was invited to attend the demonstration meeting. At the meeting, the leaders of the Provincial Department of Justice introduced the revision of the "Shandong Province Administrative Law Enforcement Personnel Qualification Certification and Administrative Law Enforcement Certificate Management Measures" and the "Shandong Province Administrative Punishment Hearing Procedure Implementation Measures. After preliminary investigation and demonstration, soliciting opinions, and repeated revision of the "two regulations", a revised draft has been formed and submitted to this expert demonstration meeting for discussion. The experts attending the meeting put forward opinions and suggestions on the draft of the "two regulations" from their respective fields of work and research. Lawyer Liu Pengfei also proposed amendments to the draft based on his practical experience in handling administrative litigation cases and previous work experience in government departments.

2022-08-27

Viewpoint... Practical analysis of the scope of the exercise of shareholders' right to know.

The current company law for the limited liability company's shareholders' right to know is mainly stipulated in Article 33, the limited liability company's shareholders' right to know is mainly stipulated in Article 97, this paper will combine the current law, the provisions of judicial interpretation and the shareholders' right to know judicial case analysis, in order to explore the scope of the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. the People's Republic of China Companies Act (II) (as amended in 2018) 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. the People's Republic of China Accounting Act of (III) (amended in 2017) The registration of account books in the first paragraph of Article 15 must be based on audited accounting documents and comply with the provisions of relevant laws, administrative regulations and the unified accounting system of the State. Accounting books include general ledgers, ledgers, journals, and other auxiliary books. Article 20 Paragraph 2 A financial accounting report shall consist of the accounting statements, the notes to the accounting statements and the statement of financial situation. Financial and accounting reports provided to different users of accounting information should be prepared on a consistent basis. Where the relevant laws and administrative regulations stipulate that the accounting statements, notes to the accounting statements and statements of financial situation shall be audited by a certified public accountant, the audit report issued by the certified public accountant and the accounting firm in which he works shall be provided together with the financial accounting report. Regulations of (IV) on Financial Accounting Reports of Enterprises (Order No. 287 [2000] of the State Council) Article 7 Annual and semi-annual financial accounting reports shall include: (I) accounting statements; Notes to (II) accounting statements; (III) Statement of Financial Situation. The accounting statement shall include the balance sheet, profit statement, cash flow statement and related schedules. (V) of the Opinions of the Higher People's Court of Shandong Province on Several Issues Concerning the Trial of Company Dispute Cases (for Trial Implementation) (Lu Gaofa [2007] No. 3) Article 63 Paragraph 2 The accounting books to which shareholders have the right of inspection include accounting vouchers and original vouchers. (VI) "Answers to Several Questions of the Second Civil Division of the Higher People's Court of Shandong Province on the Trial of Company Dispute Cases" 10. When shareholders consult the accounting books, can they consult the accounting vouchers together? A: Shareholders have the right to know about the company's operating conditions, and when shareholders consult the accounting books, they can consult the accounting vouchers together. Reason: Shareholders' right to know is an important way for shareholders to understand the company's operating conditions and supervise management, and is an important basis for shareholders to exercise other shareholders' rights. According to the provisions of Article 33 of the the People's Republic of China Company Law, the right to know enjoyed by shareholders varies according to the content of the inspection. Shareholders have the right not only to inspect, but also to request copies of, and exercise such rights without the obligation to state the purpose of the articles of association, minutes of shareholders' meetings, resolutions of meetings of the board of directors, resolutions of meetings of the board of directors, resolutions of meetings of the board of supervisors and financial and accounting reports. However, in the case of accounting books, shareholders can only consult, not copy, and the exercise of this right must state in writing the purpose of the inspection, if the company has reasonable grounds to prove that the shareholders have improper purposes, may damage the legitimate rights and interests of the company, may also refuse to provide access. When a shareholder consults the accounting books, he may consult the accounting vouchers together. According to the the People's Republic of China Accounting Law, the registration of accounting books must be based on audited accounting vouchers. Therefore, accounting vouchers can be regarded as attachments to accounting books. Although Article 33, paragraph 2, of the the People's Republic of China Company Law provides that shareholders may consult the company's accounting books, it is not clear whether the original accounting documents can be consulted together. However, based on the original accounting documents is the most true reflection of the company's business situation, if the scope of the right of access of minority shareholders is limited to the accounting books, it will be difficult to ensure that the real operation of the company through the accounting books, in the accounting books of a large number of false records, resulting in the shareholders' right to know failed. (VII) of the Guiding Opinions of the Higher People's Court of Beijing Municipality on Several Issues concerning the Trial of Company Dispute Cases Article 19 The accounting books of the company which the shareholders of a limited liability company have the right to consult include bookkeeping vouchers and original vouchers. Sorting out 3. referee rules (I) the scope of legal exercise of shareholders' right to know Article 33 of the Company Law stipulates the general principles of the manner and scope of exercise of the shareholders' right to know of a limited liability company, and may consult and copy the articles of association, the minutes of the shareholders' meeting, the minutes of the meeting of the board of directors, the minutes of the meeting of the board of supervisors and the financial and accounting reports, and only consult the accounting books. Article 97 of the Company Law stipulates the general principles of the manner and scope of the exercise of the right to know of shareholders of a limited company, and is limited to access to 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 meeting of the board of directors, the resolutions of the meeting of the supervisory board, and the financial and accounting reports. It should be noted that, according to Article 20 of the Accounting Law and Article 7 of the Regulations on Financial and Accounting Reporting of Enterprises, financial and accounting reports include accounting statements (balance sheet, profit statement, cash flow statement and related schedules), notes to accounting statements and financial statements. According to Article 15 of the Accounting Act, accounting books include general ledgers, detailed ledgers, journals and other auxiliary books. [Case 1] Dispute over Shareholders' Right to Know between Beijing Peking University Attached Middle School Education Investment Co., Ltd. and Beijing Peking University Yilin Company (Case No.:(2012) Yizhong Min Zhong Zi No. 5887, Trial Court: Beijing No.1 Intermediate People's Court) The court held that, in accordance with the relevant provisions of the Company Law, shareholders 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. The Beijing Education Investment Company has no basis in law to exclude the exercise of shareholders' right to know on the grounds that Peking University High School and Yilin Company have already understood the company's financial situation. With regard to the request to consult the accounting books, Beijiao Investment Company failed to provide effective evidence in this case to prove that Peking University Affiliated High School and Yilin Company had improper purposes, and the first instance judgment supported the litigation claims of Peking University Affiliated High School and Yilin Company. [Case 2] Dispute over Shareholders' Right to Know between Beijing Twelve Years Education Technology Co., Ltd. and Shenzhen Wolfers Jewelry Industry Co., Ltd. (Case No.:(2021) Guangdong 0303 Minchu No. 24786, Trial Court: Shenzhen Luohu District People's Court) The court held that this case is a dispute over shareholders' right to know, and the defendant is a joint stock limited company. According to Article 97 of the the People's Republic of China Company Law, the plaintiff, as a shareholder of the defendant company, has the right to consult the articles of association, the register of shareholders, the minutes of the general meeting of shareholders, the resolutions of the board of directors, the resolutions of the board of supervisors and the financial accounting reports. The plaintiff claimed that there was no legal basis for consulting the company's accounting books and accounting vouchers, and the court did not support it. Whether the shareholders of a (II) limited liability company have the right to know about the accounting vouchers (original vouchers, bookkeeping vouchers). Accounting vouchers originally recorded the company's operating data, customer information, financial data, shareholder rights and company rights trade-off issues more prominent. Because the company law and related judicial interpretations do not clearly include accounting documents as the scope of the exercise of shareholders' right to know, there are different understandings of local courts in judicial practice as to whether shareholders can exercise their right to know about accounting documents, and there are three main judicial views: Viewpoint 1: Shareholders have no right to consult accounting documents outside the scope of statutory exercise. [Case 1] Dispute over Shareholders' Right to Know between Fuba Investment Co., Ltd. and Hairong Boxin International Financial Leasing Co., Ltd. (Case No.:(2019) Supreme Law Minshen No. 6815, Trial Court: Supreme People's Court) The court held that it was the right of shareholders 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 supervisory board and the financial and accounting reports, and that the shareholders' access to the company's accounting books should be based on the premise that there was no improper purpose and that it would not harm the legitimate interests of the company. Fuba Company is a shareholder of Hairong Boxin Company. Shareholders have the right to know about the operation of the company and have the right to consult the relevant information of the company. Article 13, paragraph 1, of the the People's Republic of China Accounting Law stipulates: "Accounting vouchers, accounting books, financial accounting reports and other accounting information must comply with the provisions of the unified national accounting system." Article 14, paragraph 1, states: "Accounting vouchers include original vouchers and bookkeeping vouchers." According to the aforementioned law, the accounting books do not include original vouchers and bookkeeping vouchers. The protection of shareholders' right to know and the interests of the company needs to be balanced, so we should not arbitrarily expand the scope of the interpretation of shareholders' right to know beyond the provisions of the law. The the People's Republic of China Company Law only limits the scope of shareholders' access to accounting information to financial accounting reports and accounting books, does not involve original documents, and the second-instance judgment does not support Fuba's request for access to the original documents of Hairong Boxin Company, which is not improper. Article 9 of the "the People's Republic of China Accounting Law" does not give shareholders the right to consult the company's original documents. The guidance of the Beijing Higher People's Court does not have the effect of judicial interpretation. Fuba's request for a retrial of this case based on the above provisions cannot be established. Retrial ruling: Reject Fuba Company's application for retrial. [Case 2] Dispute between Guangdong Dongli Energy Technology Co., Ltd. and shareholders of Wang Lizhong, Li Zhongbao, Li Na and Li Man over their right to know (Case No. (2014) Sui Fa Min Er Zhong Zi No. 1327, Trial Court: Guangzhou Intermediate People's Court of Guangdong Province) The court held that, according to Article 13, paragraph 1, of the the People's Republic of China Accounting Law, "accounting vouchers, accounting books, financial accounting reports and other accounting information must comply with the provisions of the unified national accounting system." Paragraph 1 of Article 14 "Accounting vouchers include original vouchers and accounting vouchers." According to other regulations, accounting books and accounting vouchers are parallel legal concepts, and the company law has clearly defined the scope of shareholders' access, so it is not appropriate to make an expanded explanation. Therefore, Dongli Company believes that Wang Lizhong has no right to access Dongli Company's accounting vouchers and property lists (including accounting vouchers, relevant original vouchers and relevant materials recorded as attachments to original vouchers for future reference), which are legally based and supported by our hospital. Viewpoint 2: Accounting vouchers are an important basis for the preparation of accounting books, the scope of "accounting books" should be expanded to understand, you can consult accounting vouchers. [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 shareholders' right to know is the right of shareholders to have a true understanding and mastery of important information or information such as the operation and management of the company, and is the basic right of shareholders to exercise the rights of asset income, participation in major decisions and selection of managers in accordance with the law. From the legislative value orientation, the key is to protect the legitimate rights and interests of small and medium-sized shareholders. Article 34, paragraph 2, of the Company Law provides that "shareholders may request access to the company's accounting books." The right of access to books is an important part of the shareholders' right to know. One of the most important things that shareholders know about the company's operations is to understand the company's financial situation by consulting the company's books. Article 9 of the the People's Republic of China Accounting Law stipulates: "Each unit must conduct accounting according to the actual economic business transactions, fill in accounting vouchers, register accounting books and prepare financial and accounting reports." Article 14 stipulates: "Accounting vouchers include original vouchers and bookkeeping vouchers. In handling the economic business matters listed in Article 10 of this Law, the original vouchers must be filled in or obtained and sent to the accounting institution in a timely manner. ...... The bookkeeping vouchers shall be prepared on the basis of the original vouchers and relevant information that have been examined." The first paragraph of Article 15 stipulates: "The registration of accounting books must be based on audited accounting documents and comply with the relevant laws, administrative regulations and the unified national accounting system." Therefore, the specific business activities of the company can only be known by consulting the original documents, without consulting the original documents, small and medium-sized shareholders may not be able to accurately understand the real business situation of the company. According to accounting standards, relevant information such as relevant contracts is also the basis for the preparation of bookkeeping vouchers and should be recorded as an annex to the original vouchers. Accordingly, the scope of the exercise of the appellant's right of access shall include accounting books (including general ledgers, ledgers, journals and other auxiliary books) and accounting vouchers (including bookkeeping vouchers, relevant original vouchers and relevant information recorded as attachments to the original vouchers). [Case 2] Dispute over Shareholders' Right to Know between Harbin Shenge Sports Chain Co., Ltd. and Bailaimu Co., Ltd. and Gold Medal Sports Co., Ltd. (Case No.:(2020) Heimin Zhong No. 463, Trial Court: Heilongjiang Higher People's Court) The court held that, in accordance with the provisions of Article 33 of the the People's Republic of China Company Law, Belaimu Company and Gold Medal Company, as shareholders of Schenge Company, may consult Schenge's articles of association, resolutions of shareholders' meetings and general meetings and minutes of meetings, resolutions of the board of directors, resolutions of the board of supervisors, financial and accounting reports and accounting books. According to the provisions of Articles 14 and 15 of the the People's Republic of China Accounting Law, the registration of accounting books must be based on audited accounting vouchers and comply with the relevant laws, administrative regulations and the provisions of the unified national accounting system. Accounting vouchers include original vouchers and bookkeeping vouchers, which shall be prepared on the basis of audited original vouchers and related information, and accounting books include general ledgers, ledgers, journals and other auxiliary books. Accounting vouchers are the basis for the registration of accounting books, is an indispensable part of verifying the authenticity of accounting books, the right of shareholders to consult accounting books, should also include the right to consult accounting vouchers, giving shareholders the right to consult accounting vouchers in line with the legislative purpose of protecting shareholders' right to know. Therefore, the first instance ruled that Bellemu and Gold Company had access to the accounting certificate.

2022-08-26