Dynamic | Zhongcheng Qingtai Renbu Institute was granted a practice license-the first law firm in Renbu County, Xigaze City, Tibet was officially put into operation.

At 10:30 a.m. on July 29, 2022, the Ministry of Justice held a press conference in Beijing to promote the basic solution of the problem of "lawless counties" across the country. The press conference was broadcast live in Tibet and other provinces (regions) to the "lawless counties" law firm. The branch office issued a practice license ceremony, and lawyer Zhang Wei, the head of Zhongcheng Qingtai (Renbu) branch, attended the certification ceremony of the Tibet Autonomous Region Justice Department in Lhasa. Zhang Huiming, Deputy Secretary of the Party Committee and Director of the Department of Justice of the Tibet Autonomous Region, Zhang Hongfa, Member of the Party Committee, Deputy Director of the District Department of Justice, and Secretary of the Party Committee of the District Lawyers Industry, Deputy Secretary of the Party Committee of the District Lawyers Industry, and Dawa Tashi, President of the Tibet Autonomous Region Lawyers Association, etc. Leaders attended the meeting. Promoting the basic solution of the problem of "lawless counties" across the country is an important measure to thoroughly implement the spirit of General Secretary Jinping's important instructions and the decision-making and deployment of the Party Central Committee, and to promote the construction of public legal services in underdeveloped areas. It is an important measure to adhere to the people as the center and respond to the new era. An important measure for the new needs and expectations of the people's legal services. At present, China has stepped into a new journey of building a modern socialist country in an all-round way and marching towards the second centenary goal. The people's new expectations for democracy, the rule of law, fairness and justice have been continuously improved. There are new requirements for legal services in terms of scope, field and quality, which is to demonstrate the political advantage of the socialist system to concentrate its efforts on major events, It reflects the important measures of the people's lawyer era. Zhongcheng Qingtai Law Firm actively responded to the relevant requirements of the Ministry of Justice, the National Lawyer Industry Party Committee and the Shandong Lawyer Industry Party Committee, extensively mobilized, carefully organized, and gave full play to its exemplary and leading role. With the strong support and guidance of the Shandong Provincial Department of Justice, 2022 In early May, it began planning to establish a branch office in Renbu, a "lawless county" in Xigaze City, Tibet Autonomous Region, and actively declared various related materials, director Geng Guoyu of Zhongcheng Qingtai Law Firm led the Tibet delegation to Renbu on-the-spot investigation in late June to actively promote the examination and approval and operation preparation of Zhongcheng Qingtai (Renbu) Branch. At the certification ceremony, Zhang Huiming, Deputy Secretary of the Party Committee and Director of the Department of Justice of the Tibet Autonomous Region, Zhang Hongfa, Member of the Party Committee of the District Department of Justice, Deputy Director, and Secretary of the Party Committee of the District Lawyers Industry, Deputy Secretary of the Party Committee of the District Lawyers Industry, and Chairman of the Tibet Autonomous Region Lawyers Association Dawazashi and other leaders cordially met with lawyer Zhang Wei and placed high hopes on the future development of Zhongcheng Qingtai (Renbu) branch. Figure 1: Director Zhang Huiming on the left and lawyer Zhang Wei on the right Figure 2: On the left is Deputy Director Zhang Hongfa, in the middle is lawyer Zhang Wei, and on the right is Director Zhang Huiming. Photo 3: The left is President Dawa Tashi and the right is lawyer Zhang Wei. Zhongcheng Qingtai (Renbu) Branch will carry out business activities in accordance with the unified deployment of the Lawyers Work Bureau of the Ministry of Justice, the All-China Lawyers Association and the China Legal Aid Foundation, in accordance with the Lawyers Law and other relevant laws and regulations, and in accordance with the "Lawyers County" The judicial administrative department deploys to actively participate in public legal service activities, adhere 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 the service standard of "striving for perfection and perfection", vigorously promote the spirit of aid to Tibet, never forget the original intention, keep in mind the mission, and promote the solution of the "lawless county" problem, Promote the construction of public legal services in underdeveloped areas and other aspects to show the spirit and dedication of Zhongcheng Qingtai lawyers.

2022-07-30

Dynamic | Zhongcheng Qingtai Jinan Institute Tian Qingsong Lawyer for Shandong High-speed Rail Transit Group Co., Ltd. Yiyang Railway Management Office to Carry out "State-owned Enterprise Compliance Governance System Construction" Legal Training Lecture

On July 28, 2022, lawyer Tian Qingsong of Zhongcheng Qingtai (Jinan) Law Firm was invited to conduct legal training lectures on "Construction of Compliance Governance System for State-owned Enterprises" for the heads of departments and departments of Yiyang Railway Management Office of Shandong High-speed Rail Transit Group Co., Ltd. Lawyer Tian Qingsong from the high-speed rail transit group business reality, around the state-owned enterprise compliance system to build the main content, from the compliance system overview, risk identification, compliance system construction path and other three sections of the ten topics to give a comprehensive explanation. The participants spoke highly of the training, believing that the training content was comprehensive and the explanation was easy to understand, which effectively promoted the construction of enterprise compliance system, and had strong guiding significance for the legal construction of Yiyang Management Office of high-speed rail transit group.

2022-07-29

Dynamic | Building a Warm Home for Soldiers, Zhongcheng Qingtai in Action

The Red Spring City has a profound military heritage; the great love of Jinan has infinite charitable power. On July 29, the launch of the "Warm Soldier Action" of the Jinan Care for Veterans Foundation and the establishment ceremony of the "Warm Soldier Charity Home" were successfully held in the Red Hall of Jinan Junxiu Building. Zhongcheng Qingtai Law Firm participated in the launching ceremony as a member of the "Warm Soldier Public Welfare Home. Partner lawyer Yin Huili and partner lawyer Zhao Bin participated in the warm-up operation as representatives of Zhongcheng Qingtai Law Firm. This event was guided by the Jinan Veterans Affairs Bureau and co-sponsored by the Jinan Care for Veterans Foundation and Jinan Radio and Television Station. The first batch of more than 500 caring companies joined the ranks of the "Warm Soldier Charity Home" and merged into a strong lineup. They will provide priority, preferential treatment, and preferential services for veterans in life, elderly care, housing, education, culture, and law. Create a warm home. Zhongcheng Qingtai Law firm will actively implement General Secretary Xi's important instruction of "making soldiers a profession respected by the whole society", organically combine the enthusiasm of supporting the army with legal services, deeply integrate the work of legal services into the construction of the cause of loving and strengthening the army, and make concerted efforts with caring units and people from all walks of life to do a good job in the public welfare of soldiers and contribute to the cause of caring for veterans.

2022-07-29

Dynamic | Lawyer Yu Peng, Deputy Director and Senior Partner of Zhongcheng Qingtai Jinan Institute, and Lawyer Zhang Tiantian of International Business Center were invited to attend the "French Enterprises" Exchange Symposium of Jinan Federation of Industry and Commerce Entrepreneurs Association.

On the afternoon of July 29, 2022, under the guidance of Jinan Federation of Industry and Commerce, Jinan people's Procuratorate and Jinan Arbitration Commission, Jinan Federation of Industry and Commerce Entrepreneur Association organized and held a "Symposium on Cooperation and Exchange between French Enterprises in the Development of Service Enterprises". Yu Peng, deputy director and senior partner of Zhongcheng Qingtai Jinan Institute, and Zhang Tiantian, a lawyer from the International Business Center, were invited to attend the meeting. They had in-depth exchanges and discussions on promoting the "Ten Thousand Associations" contact and cooperation mechanism jointly launched by the All-China Federation of Industry and Commerce, the Ministry of Justice and the China Lawyers Association, helping the construction of private enterprises under the rule of law, building a new platform for lawyers to serve private enterprises, and participating leaders and business representatives. The symposium was presided over by Secretary-General Wang Baoling of the Entrepreneurs Association of the Municipal Federation of Industry and Commerce. At the meeting, Director Yu Peng analyzed the current favorable situation of the development of the rule of law in enterprises in the light of the introduction of the Civil Code and the construction of the corporate compliance system. and suggested that law firms tailor-made standardized, customized, personalized, diversified and integrated legal service products for enterprises.

2022-07-29

Building Materials Perspective. "Regulations on the Protection of Payment for Small and Medium-sized Enterprises"-the right moat of building materials enterprises.

According to the 2022 China Corporate Payment Survey released by Coface, 53% of the companies surveyed experienced late payments in 2021, down from 57% in 2020. However, the average time to late payments rose from 79 days in 2020 to 86 days in 2021. The construction industry still has the longest overdue payment period of 109 days. In addition, the proportion of surveyed enterprises with ultra-long overdue payments accounting for more than 2% of annual turnover has increased significantly, from 47% in 2020 to 64% in 2021. Among them, the industry with the highest proportion of enterprises with long overdue payments accounting for more than 10% of annual turnover is also the construction industry (56%). In Coface's experience, 80% of ultra-long overdue payments may never be recovered. If the amount of ultra-long-term overdue payments accounts for more than 2% of annual turnover, you may be exposed to cash flow risk. From the above survey data, it can be seen that small and medium-sized construction materials companies belong to the downstream supply side of the construction industry, and are also in the hardest hit areas of cash flow risk, requiring additional support and protection. Background of the Regulations on Guaranteeing Payment for Small and Medium-sized Enterprises in 1. In recent years, affected by the complex and changeable economic situation at home and abroad and the downward pressure of the economy, the payback period of small and medium-sized enterprises has been extended, and some government organs, institutions and large enterprises have the problem of defaulting on small and medium-sized enterprises to varying degrees. it seriously infringes upon the legitimate rights and interests of small and medium-sized enterprises, aggravates the financial difficulties of small and medium-sized enterprises, and even endangers their survival. In this regard, the Party Central Committee and the State Council attach great importance to the payment of small and medium-sized enterprises. At the 2018 private enterprise symposium, General Secretary Xi Jinping asked to correct the behavior of some government departments and large enterprises that used their dominant position to bully the small and default on private enterprises, and repeatedly gave important instructions and instructions on establishing a long-term mechanism to prevent arrears. On September 4, 2019, the Ministry of Industry and Information Technology website published the Measures for the Administration of Timely Payment of Small and Medium-sized Enterprises (Draft for Comments), and after nearly a year, the Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises (hereinafter referred to as the "Regulations") will come into effect on September 1, 2020. It can be seen that the main purpose of the regulations is to ensure that the funds of small and medium-sized enterprises are paid in a timely manner, alleviate the financial pressure of small and medium-sized enterprises, effectively protect the legitimate rights and interests of small and medium-sized enterprises, and optimize the business environment. A typical case of 2. use of the Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises -- Taking the assumption of deferred payment liquidated damages as an example According to the above cases, it can be seen that in the building materials sales contract, the building materials purchaser generally provides the format text, while in the case of the building materials supplier signing the sales contract, even if there is no agreement on the overdue payment interest, in order to protect the interests of small and medium-sized enterprises, in the case of the building materials purchaser's breach of contract, the court can invoke Article 15 of the Regulations on Guaranteeing Payment for Small and Medium-sized Enterprises, "If government organs, institutions and large enterprises delay in making payments to small and medium-sized enterprises, they shall pay overdue interest. If the parties have an agreement on the interest rate for overdue interest, the agreed interest rate shall not be lower than the market quoted rate for one-year loans at the time of the conclusion of the contract; if no agreement is made, the overdue interest shall be paid at the daily interest rate of five ten thousandth." Therefore, the court ruled that the buyer of building materials should pay the overdue interest at the rate of five ten thousandments per day. Key elements of the 3. Regulations in terms of payment protection In addition to the overdue interest involved in the above-mentioned cases, the Regulations regulate the payment period of agencies, institutions and large enterprises, clarify inspection and acceptance requirements, prohibit disguised arrears, regulate the collection and settlement of deposits, publicize the information of arrears, and establish and improve complaints And supervision and evaluation mechanisms, clarifying the responsibility for delayed payment, etc. Specifically reflected in: (I) regulate payment behavior The Regulations provide for two main aspects: first, to regulate the payment period. It is stipulated that government organs and institutions purchasing goods, projects and services from small and medium-sized enterprises shall pay within 30 days from the date of delivery of the goods, projects and services, and if otherwise agreed in the contract, the maximum payment period shall not exceed 60 days; when large enterprises purchase goods, projects and services from small and medium-sized enterprises, they shall reasonably agree on the payment period and make timely payment in accordance with industry norms and trading habits; if the contract stipulates that settlement methods such as performance progress settlement and regular settlement shall be adopted, the payment period shall be calculated from the date on which the settlement amount is confirmed by both parties. Second, clear inspection and acceptance requirements. In view of the common problem of arrears of accounts owed to small and medium-sized enterprises due to failure to inspect and accept in time in practice, it is stipulated that if government organs, institutions and large enterprises agree with small and medium-sized enterprises to pass inspection or acceptance as the condition of payment, the payment period shall be calculated from the date of inspection or acceptance; both parties to the contract shall agree on a clear and reasonable inspection or acceptance period in the contract, and complete the inspection or acceptance within that period; if the inspection or acceptance is delayed, the payment period shall be calculated from the date of expiration of the agreed inspection or acceptance period. (II) prevention of delinquency The regulations mainly provide for three aspects: first, the prohibition of disguised arrears. It is stipulated that organs, institutions and large enterprises that use non-cash payment methods such as commercial bills to pay for small and medium-sized enterprises shall make clear and reasonable agreements in the contract, and shall not force small and medium-sized enterprises to accept non-cash payment methods such as commercial bills, and shall not use commercial bills to extend the payment period in disguise; it is not allowed to change the legal representative or the main person in charge to perform the internal payment process, or in the absence of an agreement in the contract, on the grounds of waiting for the approval of the completion acceptance, final accounts audit, etc.; refuse or delay the payment of small and medium-sized enterprises; unless otherwise agreed in the contract or otherwise provided by laws and administrative regulations, government agencies, institutions and Large state-owned enterprises shall not force the audit results of the auditing agency to be used as the basis for settlement. The second is to regulate the collection and settlement of margin. It is stipulated that except for the bid bond, performance bond, project quality bond, and migrant worker wage bond established in accordance with the law, no other bond shall be collected during the construction of the project, and the bond shall not be limited to cash; the deposit collection ratio shall comply with the relevant national regulations; after the guarantee period expires, The deposit shall be verified and settled in a timely manner. The third is to clarify the liability for delay in payment. If it is stipulated that government organs, institutions and large enterprises delay in making payments to small and medium-sized enterprises, they shall pay overdue interest in accordance with the contract and the interest rate standards stipulated in these Regulations. Organs and institutions that refuse or delay the payment of small and medium-sized enterprises shall take necessary restrictive measures in terms of official consumption, office space, and funding arrangements. In addition, the regulations also provide for the standardization of contract conclusion and fund guarantee, the establishment of information disclosure system, punishment system for breach of trust and credit supervision and evaluation mechanism. 4. epilogue As we all know, as an indispensable part of the industrial economic chain, small and medium-sized enterprises are in an obvious weak position in obtaining trading opportunities, capital turnover, risk resistance and so on. The "Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises" balances the market transaction status of all parties, provides a legal guarantee for all parties to carry out transactions on the basis of substantial equality, and fully reflects the advantages of national macro-control. As small and medium-sized building materials enterprises, they should fully understand and flexibly use the regulations, and take it as a moat to protect their own rights and interests when their rights and interests are infringed.

2022-07-27

Point of View... The determination of the shareholders of the limited company to bear supplementary liability.

The the People's Republic of China Company Law, which came into effect on March 1, 2014, stipulates that limited liability is subject to a registered capital subscription system, which is the total amount of capital contributions subscribed by all shareholders of the company and represents the creditworthiness of the company. The implementation of the registered capital subscription system has lowered the threshold for the establishment of a company and greatly stimulated market vitality. However, the company's limited liability has also brought many difficulties to the company's creditors to realize their own rights and interests, because some companies are just a shell and have no Fixed assets and funds have caused the company's creditors to sometimes win the lawsuit and cannot realize their own rights. At this time, in order to realize their own interests, creditors should consider the shareholders to bear supplementary liability in addition to suing the company. The basis for the shareholders of 1. Co., Ltd. to assume supplementary liability. (I) law 1. Companies Act of the People's Republic of China The first paragraph of Article 28 stipulates that shareholders shall pay in full and on time the amount of capital contributions they have paid as stipulated in the articles of association. 2. the People's Republic of China Enterprise Bankruptcy Law Article 35 stipulates that after the people's court accepts the bankruptcy application, if the debtor's contributor has not fully fulfilled its capital contribution obligations, the administrator shall require the contributor to pay the capital contribution paid, without being limited by the time limit of the capital contribution. (II) judicial interpretation 1. The Supreme People's Court on the application<中华人民共和国公司法>(III) on Certain Issues Article 12 stipulates that after the establishment of the company, if the company, shareholders or creditors of the company request that the shareholder withdraw his capital contribution on the grounds that the behavior of the relevant shareholder conforms to one of the following circumstances and damages the rights and interests of the company, the people's court shall support it: (1) making false financial and accounting statements to inflate profits for distribution; (II) transferring his capital contribution through fictitious creditor's rights and debt relationship; (III) transferring his capital contribution through related transactions; (IV) other acts of withdrawal of capital contributions without legal procedures. The second paragraph of Article 13 stipulates that if the creditors of the company request the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; if the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, the people's court shall not support the same request. The second paragraph of Article 14 stipulates that the shareholders of the company's creditors who request the withdrawal of capital contributions shall bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions Where the people bear joint and several liability for this, the people's court shall support it. 2. Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Enforcement Article 17 stipulates that as a profit-making legal person subject to execution, the property is not enough to pay off the debts determined by the effective legal documents, and the applicant for execution applies for changes, additional shareholders, investors or shareholders who have not paid or have not paid in full capital contributions in accordance with the provisions of the Company Law. If the promoter who bears joint and several liability for the capital contribution is the person subject to execution, the people's court shall support it. (III) reference Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254) 6. Under the registered capital subscription system, shareholders enjoy the benefits of the term in accordance with the law. The people's court shall not support the creditor's request that the shareholders of the outstanding capital contribution period bear supplementary liability for the debts that the company cannot pay off on the grounds that the company cannot pay off the debts due. However, the following circumstances are excluded:(1) in the case of the company as the executed person, the people's court has exhausted the enforcement measures and has no property to enforce, and has the reasons for bankruptcy, but does not apply for bankruptcy;(2) after the company's debts are incurred, the company's shareholders (General Assembly) will decide or otherwise extend the period of shareholders' capital contribution. 2. Judgment Rules on Supplementary Liability of Shareholders of Limited Companies (I) Judgment Rules: If the company's property is not sufficient to pay off the debts determined by the effective legal instrument, the applicant for execution shall have the right to apply for the change or additional withdrawal of capital contribution as the executed shareholder, and the shareholder who has withdrawn the capital contribution shall bear supplementary liability for the part of the company's debt that cannot be paid off within the scope of the principal and interest of the capital contribution. Case 1: Xinjiang xingwo machinery technology service co., ltd., yin qun and Zhang yingcai, Xinjiang fuxing new materials co., ltd., Hangzhou Huiqun industrial investment co., ltd. and Kuqa xinfa mining co., ltd. applied for execution of the second instance civil judgment of objection [Xinjiang Uygur autonomous region higher people's court (2021) xinmin zong no 101] The court held that it was necessary to determine whether the following circumstances existed when it was found that the shareholders who had withdrawn their capital contributions had to bear supplementary liability for the unliquidated portion of the company's debts within the scope of the principal and interest of the withdrawn capital contributions: 1. Determine whether the company as the executed person belongs to the situation of "the company's property is insufficient to pay off the debts determined by the effective legal instrument". After court investigation, it is sufficient to confirm that Xinfa Company has not actively promoted the extension of the validity period of the prospecting right and has the auction conditions, resulting in Xingwo Company's creditor's rights to Xinfa Company still unable to be paid since 2016. The current property status of Xinfa Company belongs to the situation that "the company's property is insufficient to pay off the debts determined by the effective legal documents. 2. Determination of whether shareholders constitute a withdrawal of capital contributions (1) Determine whether the payment and other related actions are normal business practices of the company. That is, even if the ultimate interests of the company are impaired as a result of the relevant transaction, the transaction should not be considered as a withdrawal of capital contributions if the shareholders are not subjectively malicious at the time of the transaction and it is a normal operation of the company. In short, it cannot be concluded that a related company transaction is a withdrawal of capital contributions solely on the basis that the transaction ultimately results in actual damage to the company's interests. (2) If the capital is transferred out after the registered capital is paid in, although it cannot be directly identified as the withdrawal of capital contribution, when the time and amount of the transferred money are derived from the registered capital, and there is reasonable doubt about the existence of the withdrawal of capital contribution, since the creditor cannot query the bank accounts or financial books of the target company and its shareholders, the target company or its shareholders can only provide rebuttal evidence, it is proved that the transferred capital contribution is reasonable, is used for the normal operation of the company, and has gone through the legal procedures of the company, otherwise it shall bear the adverse consequences of the failure of the proof. Case 2: Shandong Weishan Lake Mining Group Co., Ltd., Jin Han Construction Co., Ltd. and other outsiders executed the second instance civil judgment of objection [Shandong Zibo Intermediate People's Court (2022) Lu 03 Min Zhong No. 158] The court held: 1. Weishan Lake Mining Group claimed that the above-mentioned 19 million transfer was the normal operation of the enterprise, but it could not explain the purpose of the money involved in the case and did not submit relevant basic transaction evidence. Therefore, Weishan Lake Mining Group constituted a withdrawal of registered funds from Jiuxing Longtai Company. 2. The above-mentioned frozen and sealed-up property of Jiuxing Longtai Company is not enough to pay off the debts determined by its effective judgment, and Weishan Lake Mining Group is added as the person to be executed, and it is in accordance with the law to assume responsibility within the scope of the withdrawal of capital contributions. (II) Judgment Rules: If a shareholder reduces the capital contribution without legal procedures, he shall be liable for supplementary compensation for the company's unliquidated debts. Case: Hebi Haichuang Industrial Transformation and Development Investment Fund, Zibo Haoxiang Wear-resistant Material Co., Ltd. and others have decided to apply for retrial and review of civil rulings on contract disputes [Henan Higher People's Court (2021) Yu Min Shen No. 8169] The court held that the shareholders of a limited liability company should not only fulfill the obligation of full capital contribution, but also that the capital contribution paid by the shareholders shall not be withdrawn or reduced without legal procedures. In this case, under the condition that Changye Chemical Company failed to fulfill its notification obligation to creditor Haoxiang Company, its shareholder Haichuang Fund and others reduced their capital through the resolution of the company's shareholders' meeting, which violated the principle of unchanged capital and capital maintenance of the company. It is no different in essence from the infringement of creditors' interests caused by shareholders' failure to fulfill their capital contribution obligations and withdrawal of capital contribution. Therefore, the company's shareholders cannot be exempted from the responsibility for the capital reduction. Although the company law theoretically distinguishes between substantial capital reduction and formal capital reduction, there is no clear distinction in China's current company law. Moreover, whether the company's capital reduction is substantial capital reduction or formal capital reduction, the beneficiaries of the capital reduction are all shareholders of the company. As for whether Haichuang Fund has recovered the capital reduction from Changye Chemical Company, it is its internal operation and does not affect its external responsibility. In summary, Haichuang Fund shall bear supplementary liability for the debts owed by Changye Chemical Company to Haoxiang Company within the scope of capital reduction. (III) Judgment Rules: If a prominent shareholder withdraws his capital contribution, he shall bear supplementary liability for the company's debts within the scope of the capital contribution. Case: Jiangsu Yangzhong Port Investment Development Co., Ltd., China Shipping Engineering Construction General Administration Co., Ltd. and other construction project contract disputes second-instance civil judgment [Hubei Higher People's Court (2021) E Min Zhong No. 133] The court held that: the case formed a complete chain of evidence, sufficient to prove that Yangzhong Development Company in the Shenghao Port Company after the capital contribution of 0.2 billion yuan to the use of fictitious creditor's rights and debts to transfer the capital contribution, constitute a withdrawal of capital contribution, should bear the corresponding legal responsibility. Yangzhong Development Company claims that the relationship between it and Shenghao Investment Company is an equity holding relationship, the Court believes that even if the holding is true, according to the effectiveness of the equity registration publicity, does not affect the legitimate rights of creditors to prominent shareholders, Yangzhong Development Company in the withdrawal of capital contribution of 0.2 billion yuan to bear the corresponding supplementary liability. (IV) Judgment Rules: If the period of contribution has not expired, the shareholders shall not be liable for compensation for the company's debts within the scope of the unfunded principal and interest. Case: Chongqing Shangcheng Landscape Art Co., Ltd. and Shanxi Boxin Construction Engineering Co., Ltd., Shanxi Shanggu Tourism Development Co., Ltd. and other construction project contract disputes retrial civil judgment [Shanxi Higher People's Court (2020) Jin Min Zai No. 270] The court held that the second paragraph of Article 13 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" stipulates: "The company's creditors request shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to be within the scope of the principal and interest of the unfunded capital contribution. If the company's debts cannot be repaid, the people's court shall support it." This provision applies to the situation where the shareholder's capital contribution is due and fails to fulfill the capital contribution obligation. According to the second paragraph of Article 3 of the the People's Republic of China Company Law, which was amended and implemented on March 1, 2014, "the shareholders of a limited liability company shall be liable to the company to the extent of the amount of capital contribution they have paid; the shareholders of a joint stock limited company shall be liable to the company to the extent of the shares they have subscribed." It can be seen that the registered capital of a limited liability company is subject to a subscription system, under which shareholders enjoy the benefits of the term. The ancient travel company in the company's articles of association agreed that the shareholder subscription period is October 18, 2025, there is no violation of the law. Therefore, in accordance with the provisions of Article 13, paragraph 2, of the (III) of the Supreme People's Court on the Application of the the People's Republic of China Company Law, the original court ruled that Shangcheng Garden Company should bear supplementary compensation liability to Boxin Construction Company for the unpayable part of the debts of the ancient tourism company within the scope of the unfunded principal and interest. (V) Judgment Rules: In the case of the company as the executed person, the people's court has exhausted the enforcement measures and has no property to enforce, and has the reasons for bankruptcy, but does not apply for bankruptcy, the shareholders who have not reached the period of capital contribution shall bear supplementary liability for the debts that the company cannot pay off within the scope of capital contribution. (VI) Judgment Rules: After the company's debts arise, if the company's shareholders (large) will resolve or otherwise extend the period of shareholders' capital contribution, the shareholders who have not made the period of capital contribution shall bear supplementary liability for the company's unpayable debts within the scope of the unfunded capital contribution. (VII) Judgment Rules: After the People's Court accepts the bankruptcy application, if the debtor's contributor has not fully fulfilled its capital contribution obligations, the administrator shall require the contributor to pay the capital contribution paid, and the contributor shall bear supplementary liability for the company's unpayable debts within the scope of the unfunded contribution, without being limited by the period of contribution.</中华人民共和国公司法>

2022-07-25

Point of View | The real estate is "unfinished". Is it legal for the owners to set off a wave of suspension of loans?

Recently, "owners of uncompleted residential buildings are forced to stop lending" rushed to the hot search. "The wave of supply and loan suspension has hit, involving many properties in many places across the country. According to incomplete statistics, at least 52 owners of unfinished and suspended buildings have issued a notice of compulsory suspension of loans to the authorities and banks. Including Zhengzhou, Wuhan, Xi'an, Taiyuan, Changsha, Xianning, Shaoyang, Suqian, Qingdao, Jinan and other cities, including a number of developers. Subsequently, a judgment (2019) min again No. 245 issued by the judicial committee of the Supreme People's court was screened on the social platform. The judgment held that in the case of the termination of the housing guarantee loan contract, the developer should bear the obligation to return the principal of the housing loan, and the house buyer should not have the obligation to return the principal of the loan to the commercial bank. The above judgment is diametrically opposite to the original judgment. The original judgment holds that the loan contract relationship is established between the buyer and the commercial bank. According to the principle of relativity of the contract, when the loan contract is terminated, the buyer should return the paid loan principal to the commercial bank. The judicial interpretation of the commercial housing sales contract says that "after the commercial housing sales contract is confirmed to be invalid or canceled or terminated, if the commercial housing guarantee loan contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right and the buyer respectively" should be understood as a third party (developer) to perform on its behalf. In the case that the developer fails to follow the instructions of the buyer to perform the loan principal return obligation in time, the corresponding debt has not been eliminated, and the buyer should still perform the loan principal return obligation to the commercial bank. In the face of the above two judicial views, is it legal for the owners to refuse to repay the remaining loans after the unfinished real estate? What legal consequences will the owners face after they stop lending? 01 The legal relationship involved in the interruption of the loan. There are two main legal relationships in the "down payment commercial loan" purchase model: The first level of legal relationship is the contractual relationship between the buyer and the developer for the sale of commercial housing, which stipulates that in addition to paying the down payment to the developer, the buyer also needs to apply for a house purchase loan from a commercial bank, and the bank will directly issue a loan to the developer. The second level of legal relationship is the secured loan contract relationship between the buyer and the bank, and the secured loan contract relationship can be subdivided into: the loan contract relationship and the mortgage guarantee relationship, which may also involve the developer's phased joint and several guarantee liability. After the bank issues the loan, the buyer needs to make a "monthly payment" in accordance with the loan contract and pay off the loan in installments. 02 The focus of legal controversy over the suspension of loans. The focus of the dispute in such cases is whether the buyer should bear the responsibility for the repayment of the remaining loan after the termination of the individual purchase loan and guarantee contract. Judgment Point 1: According to Article 21, paragraph 2 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes": "After the commercial housing sales contract is confirmed to be invalid or revoked or terminated, the commercial housing guarantee loan If the contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right holder and the buyer respectively." The property was unfinished, and the developer was unable to deliver the house to the buyer due to the bankruptcy liquidation procedure, resulting in the termination of the commercial housing sales contract. The judgment supported the buyer to terminate the personal purchase loan and guarantee contract. At the same time, the guaranteed loan contract was deemed invalid due to the bank's unilateral format clause. The final judgment was that the developer should bear the responsibility for returning the remaining loan and paying interest. Referee opinion 2: According to the principle of relativity of the contract, after the loan guarantee contract is terminated, the buyer should return the purchase loan to the developer. The provisions of Article 21, paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts shall be understood as the developer's return on behalf of the developer (I. e. the third party's performance on behalf of the third party), and the buyer shall not be exempted from the repayment responsibility. 03 Understanding and interpretation of the focus of controversy In the past two years, there has been no lack of similar judgments in judicial practice. The legal basis for the judgment of such cases lies in Article 21 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes. Judging from the content of the judicial interpretation, the buyer does not bear the responsibility of repayment. In addition to the termination of the commercial housing sales contract and the secured loan contract, the above clause cannot be understood as a "third party to perform on behalf of" clause, otherwise the developer cannot In the case of directly returning commercial loans to the bank, the buyer still has the obligation to repay the loan to the bank. Regarding the termination of the purchase contract, that is, the guarantee loan contract, the real estate is unfinished, the buyer can terminate the purchase contract according to the agreement on the developer's overdue delivery in the commercial housing sales contract or on the grounds that the purpose of the contract cannot be realized. Although the guaranteed loan contract and the commercial housing sales contract are two relative contracts signed by the buyer with the loan bank and the developer respectively, after the cancellation of the purchase contract, the buyer can base on the judicial interpretation of the commercial housing sales contract that "the purpose of the commercial housing guaranteed loan contract cannot be realized because the commercial housing sales contract is confirmed to be invalid or canceled or canceled, so that the purpose of the commercial housing guaranteed loan contract cannot be realized. If the party requests the cancellation of the commercial housing guaranteed loan contract, it should be supported, request the release of the secured loan contract. In the case that the house purchase contract and the secured loan contract are terminated, the direct legal consequence is to return the house purchase loan to the bank. The commercial housing sales contract stipulates that the "seller" shall be returned, but some referees believe that the "seller" return stipulated in the judicial interpretation It is performed on behalf of the buyer, and if the developer cannot return it, it should still be returned by the buyer. This view is based on the interpretation of the dual legal relationship in the sale of commercial housing, which has been stated in the first part of this paper. This view is based on the relativity of the contract, although it is reasonable to some extent, there are also obvious conflicts of legal value:(1) the developer should have a major fault in the performance of the contract for the sale of commercial housing due to poor management;(2) under the commercial housing presale system, the buyer pays the down payment to it and applies for the commercial bank to lend directly to it, which acts as the direct recipient of the purchase interest;(3) After the cancellation of the purchase contract and the secured loan contract, if the developer still enjoys the purchase benefits due to his own fault, and the buyer assumes the obligation to return the loan, the rights and obligations are obviously unequal. There is a suspicion that "the buyer pays for the developer's fault", and there is a conflict of legal value goals. To sum up, the author tends to think that when the commercial housing sales contract and the secured loan contract are terminated, the developer should bear the obligation to return the loan to the bank, and the buyer does not need to repay the remaining loan to the bank. 04 Lawyer Summary The real estate is unfinished, although the buyers do not have any fault behavior, and it seems that there is nothing wrong with the compulsory suspension of supply, but the one-way sending the "notice of cut off the supply" to the bank has no substantial legal effect. Although in recent years, there have been a number of cases in which buyers no longer repay loans after unfinished buildings, it is not a unified rule of judgment in judicial practice, and there is a certain degree of uncertainty as to whether the court will judge according to this idea. In the absence of a loan suspension agreement or without a court decision, the buyer has a legal risk of default and may be sued by the lending bank and enforced to repay the loan. For the majority of home buyers, in the event of unfinished real estate, at the level of judicial relief, the court should be requested to terminate the commercial housing sales contract and the secured loan contract in accordance with the law, and request the court to rule that the developer directly assume the obligation to return the house purchase loan to the bank, and obtain court support After that, the legal obligation to repay the principal and interest in the original loan guarantee contract can be eliminated.

2022-07-25

Dynamic | Passioned, "Feather" Different-Zhongcheng Qingtai Jinan Regional First Badminton Competition

Summer heat, "feather" all different. In order to enrich the amateur sports life of lawyers and show the vigorous and energetic style of Zhongcheng Qingtai lawyers, Zhongcheng Qingtai Jinan region held the first badminton competition. On July 23, in the gymnasium of Jinan Jinxu Table Tennis and Badminton Club, the badminton thrown high kicked off the competition. Zhongcheng Qingtai athletes have already done a good job of warming up, energetic, enthusiastically waving their rackets. The air smart leap of badminton, ignited the passion of the game. Men's singles and women's singles competitions adopt single elimination matches, while men's doubles, women's doubles and mixed doubles competitions adopt single round robin matches. All competitions adopt a 15-point scoring system, with two wins in three games. In singles competitions, athletes fully demonstrate their personal abilities, while in doubles competitions, athletes pay more attention to mutual cooperation. Among them, the men's singles final and the mixed doubles match scene pushed the atmosphere to a climax! Frequent cheering shouts from the audience! After the competition, Zhou Jiyong, Du Wentang and Guo Changman presented awards to the winning athletes. Lawyer Du Wentang encouraged everyone to work hard, strengthen physical exercise, strong physique. In this badminton competition, Zhongcheng Qingtai athletes not only played the level and style, but also enhanced the friendship between colleagues and demonstrated the spirit of Zhongcheng Qingtai team cooperation.

2022-07-25

Viewpoint... Suspected non-prosecution-an effective defense of a suspected usury transfer crime.

In a usury on-lending case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. Brief of the case The suspect Zou Moumou is related to the informant Zou Mou 1. Since July 14, 2012, Zou Moumou and Zou Moumou 1 and other five people have signed six loan contracts, with a total loan principal of more than 2270 million yuan, with monthly interest rates ranging from 2% to 2.9. Later, because Zou Mou 1 difficult to repay the follow-up money, Zou Mou filed a civil lawsuit. After the first, second and retrial procedures of the civil case, it was decided that Zou Mou 1 and other five people should repay Zou Mou the remaining loan principal of more than 3.14 million yuan and the corresponding interest. Zou Mou 1 and other five people refused to accept the lawsuit and applied to the procuratorial organ for civil protest. In the protest materials, Zou Mou was reported to be suspected of transferring loans at high interest rates. The reason was that Zou Mou lent bank loans of 3 million yuan and 830000 yuan on September 12, 2012 and March 2, 2013 respectively in his own name, and transferred them to Zou Mou 1 on the same day, corresponding to the second loan contract signed by both parties (3.5 million yuan, 2.6 per month, the loan period is 2 months) and the third loan contract (1 million yuan, 2.9 monthly interest rate, loan period is 3 months). The procuratorial organ then handed over the clues of the above-mentioned case to the public security organ for handling, and the public security organ filed the case for investigation. After obtaining the loan transfer vouchers of the two loans, the public security organ confirmed that the two loans were true and the bank interest rate was 0.95 per cent per month. After obtaining the details of Zou's loan account, it was confirmed that the two loans were lent to Zou 1 on the day they were issued. The public security organ believes that Zou has the act of taking bank credit funds and lending to others at high interest rates, and the amount of illegal proceeds from Zou's usury transfer should be: the interest earned by Zou's transfer bank loan to Zou 1 minus the interest paid by Zou to the bank. In December 2020, the public security organ transferred the case to the local procuratorial organ for review and prosecution. Case handling process and results After being examined by the procuratorate and returned twice for supplementary investigation, the procuratorate held that the facts of the crime identified by the public security organ were unclear and the evidence was insufficient, and decided not to prosecute Zou in accordance with the provisions of paragraph 4 of Article 175 of the the People's Republic of China Criminal procedure Law. Focus of this case On the day the loan was issued, Zou lent the loan to Zou 1, can it be determined that Zou has the criminal intent to transfer the loan for profit and the act of taking the loan from a financial institution? Representation of the defense The defender pointed out that Zou did not have the criminal intention of re-lending for profit and the act of taking credit funds from financial institutions, which did not constitute the crime of usury on-lending. First, the actor has no subjective purpose of re-lending for profit. First of all, Zou Moumou himself and the participating companies do not lack funds. The reason why he borrows money from financial institutions on a daily basis is entirely the normal production and operation mode and production and operation behavior of the company, because in the production and operation, the funds of the company basically All have targeted intended uses. For example, if you need 1 million yuan to purchase a batch of raw materials, you must prepare 1 million yuan in advance for standby, except for special circumstances, the amount is generally no longer used for other purposes, but in this case, it often results in capital binding and makes the liquidity of the enterprise worse, so the enterprise often borrows from the bank to increase liquidity in case of emergency. Secondly, the interest profit that can be obtained through usury is also far lower than its normal business income, Zou, as an entrepreneur, will not give up the end to do such things that go against common sense and harm their own interests. Therefore, Zou has no necessity and objective demand basis for re-lending for profit. It constitutes the crime of usury on-lending, which subjectively requires the actor to have the purpose of on-lending for profit before obtaining the credit funds of the financial institution; on the contrary, if the actor obtains the loan from the financial institution for a legitimate purpose, there is an emergency, or it is found that the funds are abundant or not needed, and then the funds are on-lending to others and interest higher than the loan interest rate is charged from it, the perpetrator should not be found to have the purpose of re-lending for profit under the criminal law. In this case, there is no evidence to prove that Zou has the purpose of re-lending for profit at the time of the loan, Zou only after obtaining the loan, the loan will be changed to another person, then from the subjective elements of the crime, is not a crime. Second, the perpetrator did not take out loans from financial institutions. The so-called arbitrage of loans from financial institutions refers to the use of false reasons for loans, or the provision of deceptive loan information, to apply for loans from financial institutions. For the two loans involved in the case, Zou Moumou did not apply for false loan reasons or deceptive loan conditions when borrowing from the bank, and the public security organs did not find such evidence after investigation. Therefore, Zou Moumou did not have the subjective elements of "taking" behavior, whether based on facts or in accordance with the principle of "favoring the defendant in case of doubt" and the "principle of modesty, its behavior does not belong to the" taking "behavior. And if there is not enough evidence to prove that the perpetrator has "arbitrage behavior", then it cannot be determined that the perpetrator constitutes the crime of usury. Third, the minor circumstances did not cause losses to the bank. The crime of usury on-lending violates the order of national financial management, and the perpetrator transfers credit funds to other uses and makes profits, which makes the credit funds of banks and other financial institutions face a high-risk state. It has been nearly 10 years since the two loans involved in this case have already paid off all the principal and interest of the bank. And the two loans involved are mortgages themselves, not credit loans, and there is no credit risk to the bank. Conclusion and recommendations Whether it constitutes the crime of usury on-lending can be judged from the following aspects: the crime must be manifested as the act of "taking" the credit funds of financial institutions to lend to others at a large amount for the purpose of on-lending for profit. First, subjectively, the crime of usury on-lending requires that the perpetrator must have the purpose of on-lending for profit before obtaining the credit funds of the financial institution, and the crime can only be constituted by intention, and negligence does not constitute this crime; on the contrary, if the perpetrator After obtaining a loan from a financial institution for a legitimate purpose, there is an emergency, or it is found that the fund is abundant or unnecessary, and then the fund is transferred to others, and from which interest is charged higher than the interest rate of the loan, the perpetrator should not be found to have the purpose of re-lending for profit under the criminal law. Second, to see whether it is the credit funds of financial institutions, if it is the normal procedure to obtain the credit funds of financial institutions, it does not meet the requirements of this crime. The arbitrage here refers to applying for a loan from a bank or other financial institution on false loan grounds or loan conditions, and obtaining a loan that is not available through normal procedures. Third, judge from the amount of illegal income to see whether the illegal income obtained from usury on-lending has reached more than 500000 yuan (the (II) of the new "filing standard" in 2022 is adjusted to 500000 yuan). With regard to the determination of "illegal income"-it should be noted that the amount of illegal income is not the interest earned on usury, but the interest difference, that is, the difference between the interest earned on usury and the interest on loans obtained from financial institutions. In short, to constitute the crime, the three elements of "taking illegal gains for the purpose of re-lending for profit" are indispensable. The lawyer's effective defense can start from the above points.

2022-07-22

Viewpoint... The civil liability of the trustee of the management product for breach of the obligation of trust.

Origin of 1. problems With the implementation of "strict supervision" and "deleveraging" of the financial market in recent years, the "rigid exchange" of the asset management industry has been gradually broken, and investors have to bear their own investment risks and obtain returns. In this context, when asset management products completely collapse due to the risk of the investment target, or due to other reasons can not be paid, investors began to consider more on the basis of the manager's breach of trust obligations in the investment management stage, to claim civil compensation. The New Regulation on Capital Management, issued in April 2018, puts forward for the first time in a normative document the "duty of good faith, diligence and due diligence" of financial institutions in the capital management business, and makes clear provisions on the fiduciary duty of trustees in the capital management business. However, it is difficult to effectively guide judicial practice because of its relatively principled and low level of effectiveness. Existing judgments show that in practice, most of the capital management contract investors and managers of the legal nature of the obligations of the manager, the basic connotation and extension of the scope is still controversial, and the case-related capital management contract on the obligations of the manager is not complete and accurate, the manager's responsibility boundary is unclear, the standard of conduct disputes frequently. The basic content of the obligation of 2. faith. The obligation of faith is the earliest concept of common law, it arises from the relationship of faith (fiduciary relationship), the obligation of the trustee in the relationship of faith is called the obligation of faith. In short, the fiduciary duty mainly includes two aspects, namely, the duty of loyalty and the duty of careful management. The duty of loyalty is at the heart of the duty of faith and is reflected in the obligation of the trustee to be absolutely faithful to the beneficiary. The connotation of the abstract concept of "loyalty" mainly includes two aspects: on the positive side, the trustee must act in the best interest of the beneficiary (best interest) when dealing with trust affairs; on the negative side, the trustee cannot place himself in a situation where he can foresee a conflict of interest with the beneficiary (conflict of interests). China's Trust Law has made typed provisions on violations of the duty of loyalty, including self-dealing (Article 28), agency of both parties (Article 28), competition (Article 25 introduced), kickbacks (Articles 25 and 26 introduced), embezzlement of trust property or seeking benefits other than the agreement from trust property (Articles 26 and 27) and other related transactions. The duty of prudent management means that the trustee shall perform the duties of a good manager in the management and use of the trust property. If the duty of loyalty is a bottom-line requirement for trustees, the standard of the duty of prudent management is clearly much higher. The characteristics of fiduciary services and the differences in fiduciary capacity make it difficult to unify the criteria for prudential management obligations and can only be considered in the context of specific fiduciary environments, professional backgrounds and experience. In other words, whether the trustee has fulfilled his duty of careful management needs to be judged by the judge in a specific case. In common law, the criteria for determining the duty of care include, inter alia, the business judgment rule (business judgment rule) and the prudent investor rule (a prudent investor rule). The business judgment rule applies to the company's field, which means that the company's directors, executives and counterparties have no interest in the transaction, and make decisions in good faith on the basis of fully mastering possible business information, and have reason to believe that the decision is in the best interests of shareholders. Even if the decision does not bring benefits to shareholders, or even causes certain losses, it can be considered that they have fulfilled their duty of diligence and due diligence. The prudent investor rule, on the other hand, applies to the financial investment sector, which requires the trustee to manage the fiduciary property as a prudent investor would manage his or her own investment affairs. It should be noted that when examining whether the trustee has fulfilled the obligation of due diligence and due diligence, the obligation is a process obligation rather than an obligation of result. Therefore, a breach of the duty of care cannot be reversed as a result of an investment loss. Criteria for determining a breach of fiduciary duty by a trustee of a 3. asset management product First of all, the determination of whether the trustee violates the duty of trust at the contracting stage should mainly depend on whether the trustee conducts due diligence, whether it conducts risk assessment and whether it conducts risk notification. The trustee's prudent management obligation is mainly manifested in prudent investment, and adequate due diligence is the premise of prudent investment; risk assessment and classification are the basis for determining the risk preference and risk tolerance of investors, so as to judge the investment direction matching with the investor; in the case of clear investor needs, the trustee should make full risk disclosure to investors, which is the key to matching products with investors. Secondly, to determine whether the trustee violates the fiduciary duty in the performance process should mainly depend on whether the trustee performs the management duties in accordance with the agreement and whether the information is disclosed. As mentioned above, the legal provisions on the obligations of the trustee are relatively abstract. Therefore, in judicial practice, judging whether the trustee performs the fiduciary obligations should be mainly based on the specific provisions of the relevant asset management contracts and other documents on the management duties of the trustee, and the specific requirements of the industry association established by the asset management products for the trustee to perform his duties; in addition, the trustee should follow the law and contract in the process of handling asset management affairs, provide investors with all information used for investment decisions in a timely manner, and ensure the authenticity, accuracy and completeness of the disclosed information. Finally, to determine whether the trustee violates the fiduciary duty at the exit stage should mainly depend on whether the trustee liquidates and distributes the product in a timely manner when it expires, and whether it actively takes corresponding measures when it is unable to exit normally. Investors purchase managed products for the purpose of receiving income at maturity, so the trustee has the obligation to liquidate and distribute the managed property in a timely manner at maturity. If the trustee fails to fulfill the obligation of timely liquidation and distribution, it shall bear the corresponding responsibility to the investor; in addition, when the asset management product cannot be withdrawn through normal trading, the trustee shall take positive measures based on the principle of maximizing the interests of investors. Relevant Issues in 4. Judicial Practice Whether the (I) trustee is liable for losses on the premise that the asset management product has been liquidated. When the asset management plan has actually been unable to pay, investors require the trustee to be liable for losses on the premise that the asset management product has been liquidated, on which there are major differences in practice. There is a view that for asset management products that have not yet been liquidated, it is considered that the investor's loss has not actually occurred or cannot be determined, and the investor's claim should be rejected. There is also a view that although the asset management product has not been liquidated, the manager has not invested in accordance with the contract, resulting in the entrusted management of the property has no actual value or corresponding protection, the court can presume that the actual loss of the investor has occurred. In view of the above point of view, the author believes that, on the one hand, if the amount of investors' losses cannot be determined, the investor's claim should be rejected in principle. Based on the characteristics of the asset management business, after the maturity of the asset management product, the profit and loss status of the entire asset management property needs to be finalized through the liquidation process. The investor, as the holder of the asset management product, can only determine whether there is a loss and the specific amount of the loss after the product is liquidated. In addition, where the asset management product has not yet been liquidated, it is difficult to determine the causal relationship between the trustee's breach of fiduciary duty and the investor's loss. On the other hand, in order to protect the investor's right to judicial relief, the trustee may be judged to be liable on a pro rata basis if the total amount of the loss is not determined, but the causal relationship between the trustee's actions and the investor's loss is clear. At this time, although the total amount of loss is not easy to determine, but the proportion of investor loss can be determined according to the size of the trustee's fault, in the case can be determined that the trustee of the asset management products after the liquidation of the investor failed to pay the loss in accordance with a certain proportion of the corresponding liability. Otherwise, if at this time to adhere to the incomplete liquidation and investor losses are not fixed referee thinking, will undoubtedly greatly increase the difficulty of investors to recover investment funds, resulting in substantial unfairness. (II) whether investor losses include expected gains In different cases, the investor or based on the contract, or based on tort litigation, the basis of the claim may be different, but the determination of the amount of the investor's loss is an important part of the determination of the investor's breach of contract or tort liability. In the case of a recognized investor who has incurred a loss, the court generally recognizes the principal of the investor's investment as a loss, but there is a different understanding of whether the expected return on the investment agreed upon in the contract is a loss. In my view, in principle, expected returns should not fall into the category of investor losses. First of all, the expected income is not the income that the manager guarantees to obtain, and there are corresponding investment risks for investors to invest in asset management products. Secondly, based on the consideration of preventing "rigid payment", if the investor has no evidence to prove that this part of the expected income actually exists, the expected income should not be recognized as the actual loss of the investor, but only the interest loss of the investor is recognized according to the LPR interest rate of the same period. As Shanghai L Equity Investment Fund Management Co., Ltd., Shanghai T Culture Development Co., Ltd. and other contract disputes with Wang, the judge pointed out that "the expected return does not mean that the manager guarantees that the investor will obtain the corresponding amount of investment income, nor does it mean that the manager guarantees that the principal of the fund will not be lost. Since the plaintiff has not proved the existence of this part of the income, the court does not support it." [Excerpt from (2020) Hu 74 Min Zhong No. 1045]]

2022-07-22