"March 15" in Action | Zhongcheng Qingtai Lawyers Participate in Shandong Consumer Association Consumer Rights Popularization and Law Promotion into Colleges and Universities

On March 15, 2022, on the "March 15" International Consumer Rights Day, the "March 15" rights protection education and publicity activity sponsored by the Shandong Consumers Association was held at Shandong Normal University. This activity relied on the library of the university in Jinan to display the knowledge of consumer rights protection on March 15 and broadcast the video of consumer rights protection. Some of the activities were carried out online, and through the establishment of the "Consumer Rights Protection Cloud Class 3.15 Activity Group", the cloud class 3.15 consumer rights protection knowledge publicity and education was carried out. Tian Lizhen, Vice President and Secretary-General of Shandong Consumers Association, and Tao Weiduan, Member of the Party Committee of Shandong Normal University, Chairman of the School Trade Union, Standing Member of the Shandong Education Trade Union Committee, and Director of the Shandong Consumers Association. "Group" made written speeches; online released relevant pictures and videos of the on-site activities of the March 15, 2022 consumer rights promotion and consultation service on campus; consumer rights lawyers such as Liu Baoxi, Wang Zhi and Ni Xiaojie (internship), partners of Zhongcheng Qingtai Jinan Institute, have carried out online legal consultation to answer all kinds of doubts, difficulties and hot issues in the consumption process, and to carry out consumption warning education. "3 · 15 Cloud Classroom" has received strong support and assistance from the grassroots organizations of the Democratic Progressive Party of Shandong University, Shandong Jianzhu University, Shandong University of Finance and Economics, Shandong University of Political Science and Law, and Qilu Normal University. As part of the "Five Enters of Consumer Law Propaganda" (entering enterprises, shopping malls, campuses, communities, and villages) organized by the Shandong Consumers Association, the March 15 law popularization activities on campus have achieved good social effects. It has gradually become a leader in Shandong brand public welfare activities. Zhongcheng Qingtai Jinan is willing to work hand in hand with the Provincial Consumer Association and various agencies and units to work together to continuously safeguard the legitimate rights and interests of consumers.

2022-03-16

Zhongcheng Qingtai Jinan Institute Organized Online Symposium on Resolving Microfinance Disputes

At present, the rapid development of social economy has also brought about the explosive growth of non-performing creditor's rights. Although there is a relatively mature digestion mechanism for large amount of non-performing assets in the market, the current society lacks the corresponding governance and digestion ability due to the business characteristics of large number, small amount, poor connection and low quality of creditor's rights. In the case of small batches of non-performing debts, financial institutions have been facing the helpless situation of difficult collection and litigation. In order to explore the way to deal with microfinance disputes under the new situation and resolve the risks of small batch business of banks, Zhongcheng Qingtai Jinan Institute organized an online forum on resolving microfinance disputes on March 15, 2022. Lawyer Tang Xiangdong, Deputy Director of Zhongcheng Qingtai Jinan Institute, Lawyer Yu Cuilan, Partner Zhao Bin and Lawyer Zhang Hao, Director of Financial Investment Department I, Duan Yijin, Secretary General of Shandong Financial Industry Federation, Zhang Zhenwei, Deputy Secretary General, Gao Qiang, full-time Deputy Director, Secretary General, Party Secretary and Director of Weifang Arbitration Commission Office, Zhang Chao, Director of Weifang Commercial Mediation Center and other relevant leaders attended the online forum. Lawyer Yu Cuilan presided over the meeting and introduced to the participants the specific situation of non-performing microfinance business in the current market, analyzed the new opportunities brought about by the issuance of the Notice on the Pilot Transfer of Non-performing Loans issued by the China Banking and Insurance Regulatory Commission in early 2021, and shared the long-term experience accumulated by Zhongcheng Qingtai's financial team in handling batch microfinance cases. Secretary-General Duan Yijin introduced the membership structure and business model of the Shandong Financial Industry Federation, a 5A-level social organization, and emphatically introduced the financial dispute mediation center of the Shandong Financial Industry Federation established by the organization, as well as the relevant work and exploration made by the center in promoting the construction of the "secondary mediation docking" and "litigation mediation docking" mechanism. Director Gao Qiang explained in detail the one-stop financial dispute resolution mechanism for mediation and arbitration litigation initiated by Weifang Arbitration Commission. Director Gao Qiang said that Weifang Arbitration Commission has a long-term vision, a high degree of innovation, advanced technical conditions and sound institutional mechanisms, and has been brave in exploring the handling of bad microfinance business. After that, Director Zhang Chao introduced the business model and future business plan of Weifang Commercial Mediation Center, the only special mediation institution established by the Arbitration Commission and approved by the establishment department. Lawyer Tang Xiangdong of Zhongcheng Qingtai Jinan Institute reviewed the long-term good cooperative relationship with Shandong Financial Industry Federation and various arbitration committees, and looked forward to the achievements that all parties will make in the field of batch non-performing disposal of microfinance in the future, and hoped that through the combination of "strong committee", "strong committee" and "strong institute", a new model for resolving the small non-performing assets of financial institutions through the cooperation of all parties has been explored. The participants fully affirmed the significance of this meeting and looked forward to further strengthening cooperation among all parties in the follow-up.

2022-03-16

Viewpoints. The impact and guidance of the Civil Code on the consumer protection system.

《民法典》出台前，我国已形成以《消费者权益保护法》为核心的消费者权益保护制度，其中：1993年10月31日颁布的《消费者权益保护法》通常被称为“综合性消费者保护法”，集中地反映了消费者与经营者之间的权利义务关系，规定了消费者的九项基本权利（包括消费者的安全权、知情权、选择权、公平交易权、依法求偿权、结社权、受教育权、受尊重权和监督权）；《产品质量法》、《食品卫生法》、《食品安全法》、《广告法》、《反不正当竞争法》、《反垄断法》等通常被称为“单项消费者保护法”，对消费者的各项基本权利和经营者的各项基本义务进行了细化和延伸。   基于前民法典时代消费者权益保护的立法传统，考虑到消费者保护兼具公法性与私法性，为了民法体系化的需要，借鉴域外立法例，我国《民法典》最终没有将《消费者权益保护法》整体纳入法典，而是通过总则编、合同编、物权编、侵权编等规定了消费者保护的相关内容，并采用了“一般规定 + 特殊授权”的立法模式。《民法典》第一百二十八条规定：“法律对未成年人、老年人、残疾人、妇女、消费者等的民事权利保护有特别规定的，依照其规定”，从制度上确立了消费者保护法以私法为基本属性，进一步明确了《民法典》与消费者保护法的基本法与特别法的关系，即《民法典》对消费者权进行一般保护，由单行法对消费者权进行特别保护。标志着我国消费者权益保护制度的进一步完善，消费者权益保护力度的进一步升级。   《民法典》作为消费者权益保护制度的基本法，为消费者权益保护提供切实保障的同时，也对消费者权益保护制度起到深远影响和指引作用。首先，在法律原则上，纵观诸多消费者权益保护制度，无不体现着“诚信原则”这一民法基本原则的身影，要求经营者秉持诚实、恪守承诺、守法经营，这是维护社会和经济秩序，弘扬社会主义核心价值观的必然要求。在具体规则上，又通过“基本法——特别法——配套规定”的制度模式，细化和完善着对消费者权益保护，举例说明如下：     其一，《民法典》将“惩罚性赔偿”明确纳入民事责任，进而强化了惩罚性赔偿制度在消费者权益保护制度中的地位，为相关规定引入该制度提供立法指引，并提出了“惩罚性赔偿制度”体系化的要求。   我国民事法律体系中，最早规定惩罚性赔偿的就是《消费者权益保护法》，后又被其他与消费者权益保护密切相关法律规范借鉴，将其作为一般赔偿责任的例外。本次《民法典》的编纂，相比于《侵权责任法》第十五条列举的八种“承担侵权责任的方式”，第一百七十九条第二款明确规定“法律规定惩罚性赔偿的，依照其规定”，从而将惩罚性赔偿与填补性、预防性的一般责任承担方式置于并列的位置。当然，《民法典》第一百七十九条第二款作为指引性规定，需要法律有明确规定才得以适用惩罚性赔偿，目前消费者权益保护制度中，主要涉及的规定有：   ◆《消费者权益保护法》第55条（欺诈情形下，赔偿3倍价款或服务费、最低500元，经营者明知商品或者服务存在缺陷，赔偿2倍损失）； ◆ 《食品安全法》第148条（生产不符合食品安全标准的食品或者经营明知不符合食品安全标准的食品的，赔偿10倍价款或3倍损失）； ◆ 《旅游法》第70条（有履行条件，经要求仍拒绝，造成人身损害、滞留等严重后果的，赔偿1-3倍旅游费用）； ◆ 《最高人民法院关于审理旅游纠纷案件适用法律若干问题的规定》（法释〔2010〕13号）第17条（提供服务时欺诈的，赔偿2倍损失）； ◆ 《最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》（法释〔2003〕7号）第8条、第9条（隐瞒无（真实）许可证、已抵押、已卖给第三人或为拆迁补偿安置房屋的，一房二卖、又抵押，赔偿不超过已付价款１倍）、第14条（房屋面积小于约定面积并超过３％，面积误差比超过3％部分的房价款由出卖人双倍返还买受人）。   除其他法律规定的惩罚性赔偿外，《民法典》侵权责任分编第1207条规定了产品侵权责任中的惩罚性赔偿，规定“其中明知产品存在缺陷仍然生产、销售，或者没有依据前条规定采取有效补救措施，造成他人死亡或者健康严重损害的，被侵权人有权请求相应的惩罚性赔偿”，相比于《侵权责任法》第47条、《消费者权益保护法》第55条第2款，增加了“没有依据前条规定采取有效补救措施”这一情形，至于其中“相应的惩罚性赔偿”，有《消费者权益保护法》、《食品安全法》、《旅游法》等有明确规定的，应适用特别规定，没有特别规定的适用《民法典》第1207条，这给法院自由裁量权留有一定的空间，也有待其他规定的完善。   《民法典》将惩罚性赔偿明确纳入民事责任范围，并予以适当扩展，有助于缓解大量消费者侵权导致的负面影响，提升社会治理效率，在指引消费者权益保护制度明确惩罚性赔偿相关规定的同时，也应注意制度的体系性设计，以确保在术语界定、消费者主体资格的认定标准、侵权人与被侵权人主观状态应否（或如何）限制惩罚性赔偿、赔偿责任竞合时的处理等方面实现制度的逻辑自恰、适用标准的相对统一。     其二，《民法典》对格式条款的规定作出调整，拓展了《消费者权益保护法》的相关规则，为消费领域中订立格式条款的消费者提供了更为全面、有利的制度保障。   《民法典》第496条规定“格式条款的定入规则”，相比于《合同法》及《合同法司法解释（二）》：1.扩大了格式条款提供者提示说明义务的范围，增加了“与对方有重大利害关系的条款”的提示说明义务（应参考和吸纳了《消费者权益保护法》第26条的规定），即不限于免除或减轻其责任的条款，一切与对方有重大利害关系的条款均需尽到合理的提示说明义务；2.提高了提示说明义务的要求，不仅需要对方注意到相关条款，还需确保对方理解；3.明确了提示说明义务违反的法律后果，即对方可主张相关条款不作为合同的内容，其内在法理在于双方未就该条款达成“合意”，该条款因缺乏意思表示这一合同成立的要件而未成立。这相比于《合同法司法解释（二）》“可申请撤销”的规则，降低了诉讼成本、取消了撤销权行使期间的限制，从而更加简明、直接的保护了消费者的权利。   《民法典》第497条规定“格式条款的效力规则”，确定三种情况下格式条款无效，即违反民事行为效力规定的，排除对方主要权利的，以及不合理地免除或者减轻其责任、加重对方责任、限制对方主要权利的，需要注意的是，以上三种情形下格式条款均无效，至于是否解释说明在所不论。相比于《合同法》关于“提供格式条款一方免除其责任、加重对方责任”的格式合同一律无效的规定，《民法典》增加了“不合理地”这一限制条件，与此同时，增加了“减轻其责任”这一情形。   《民法典》第498条规定“格式条款的解释规则”，与合同法一致，即格式条款和非格式条款不一致的，应当采用非格式条款。   从目前《民法典》的相关规定看，并没有对消费者合同与商事合同的适用进行区分，但实践中两商事主体的合同纠纷主张适用该规则的，法院及仲裁机构往往持谦抑和谨慎的态度。格式条款规则最早就源于《消费者权益保护法》，故其应在消费者权益保护制服中的应用本身并无异议。但消费者权益保护制度可在《民法典》的立法指引下，从规则上体现消费者权益保护领域相比于其他商事领域，对消费者的特别保护，并针对不同应用场景进行类型化的划分，并对“重大利害关系”、“合理提示”、“对方理解”等的认定作出更有针对性的规定，比如：   1.如何界定“重大利害关系”？如争议解决条款是否有“重大利害关系”？最高人民法院2018年公布的《最高人民法院关于互联网法院审理案件若干问题的规定》第3条第2款规定:“电子商务经营者、网络服务提供商等采取格式条款形式与用户订立管辖协议的，应当符合法律及司法解释关于格式条款的规定。”   2.何种方式可认定为“合理提示”？通常需考察提示方式、时间、地点等，以保监会2012年2月23日颁布的《关于加强机动车商业保险条款费率管理的通知》为例，第2第2项和第3项规定了机动车商业保险条款的提示说明义务规范:“商业车险条款应当内容完整、格式清晰、方便阅读”。“保险公司应当在投保单首页最显著的位置，用红色四号以上字体增加‘责任免除特别提示’，对保险条款中免除保险公司责任等条款作出足以引起投保人注意的提示，并采用通俗易懂的方式，对该条款的内容以书面或者口头形式向投保人作出明确说明。保险公司应当提示投保人在投保单‘责任免除特别提示’下手书:‘经保险人明确说明，本人已了解责任免除条款的内容’并签名。”也有学者提出，应以格式条款对法律的背离度为标准，将之分为三类：未背离法律的盾式条款，无须提示即可纳入；背离法律推定的许可或弱豁免的剑式条款，经合理显著的概括提示可以纳入；背离法律明定的强许可或强豁免的钩式条款,在符合合理显著的提示标准之外,还须单独提示方可纳入。当然，这种细致规定恐怕不适合直接入法，但可以做规范性文件和司法指引。   3.何种情形可认定为“对方理解”？在“已知悉全部合同条款”的字样后签字，能否认定为“理解”？消费者手写“已理解上述须知的内容”，能否认定为“理解”？电子合同中在“已阅读”处打钩，能否认定为“理解”？以电子商务领域的格式合同为例，2014年7月30日国家工商总局发布《网络交易平台合同格式条款规范指引》（工商市字(2014)144号）第9条的规定，以及《电子商务法》第49条的规定，需在《民法典》的规则指引下，进行修正和完善，对电子商务领域的格式条款订入控制设置特别规则。         其三，《民法典》丰富和完善了个人信息保护规则，与《消费者权益保护法》、《个人信息法》、《网络安全法》等规定一起，全面构建了消费者个人信息保护制度，从而全方位保障消费者个人信息安全。   2013年修改《消费者权益保护法》，第一次将“个人信息受到保护”作为消费者权益予以确定，个人信息保护才进入民事法律规制范畴。（《消费者权益保护法》规定消费者在购买、使用商品和接受服务时，享有个人信息依法得到保护的权利；经营者收集使用消费者个人信息，应当遵循合法正当必要的原则，明示收集使用信息的目的方式和范围，并经消费者同意；经营者侵害消费者个人信息得到保护的权利的，应当承担相应的民事责任、行政责任等法律责任等。）   随着经济与科技的高速发展，APP、SDK（Software Development Kit，软件开发工具包）违规收集、处理用户个人信息的情况时常发生，对个人隐私保护构成严重威胁；个人信息非法交易猖獗，时刻侵害着消费者个人隐私；人脸识别等新技术的滥用为个人生物信息泄露埋下巨大隐患。诸多个人信息安全的乱象推动着个人信息保护制度的建设。   《民法典》回应上述热点问题和法治需要，在人格权编的第六章专设“隐私权和个人信息”一章，对个人信息保护问题进行了专门规范，结合总则编及人格权编一般规定，以及合同编、侵权责任编相关规定，构建了我国民事基本法中关于个人信息保护的制度框架和基础。《民法典》确立了“知情同意”的个人信息处理原则，经营者未告知用户收集个人信息的目的、方式、范围或未经用户同意，私自收集用户个人信息；未以显著方式标示或未经用户同意，将收集到的用户搜索、浏览记录、使用习惯等个人信息，用于定向推送或广告精准营销，且未提供关闭该功能选项的行为均构成对消费者权益的侵害，应承担相应责任。   在《民法典》的统领下，近年来，国家不断出台法律、法规保障个人信息安全。其中，2021年3年15日国家市场监督管理总局发布《网络交易监督管理办法》（2021年5月1日实施，国家市场监督管理总局令第37号），就对网络消费者个人信息的收集和使用做出了详细规定，以保护消费者个人信息安全。   2021年9月1日实施的《数据安全法》规定“任何组织、个人收集数据，应当采取合法、正当的方式，不得窃取或者以其他非法方式获取数据”，数据处理活动不得损害“个人、组织的合法权益”。   2021年8月20日发布、11月1日生效的《个人信息保护法》，作为我国第一部保护个人信息的单行立法更是补缺了我

2022-03-15

Civil and Commercial Perspective... The drafting and performance of the bequest.

Brief of the case Uncle Zhang and Aunt Wang have three daughters and a son, all three daughters have daughters, and the son has a son. . Uncle Zhang and Aunt Wang love their grandson very much and want to leave their own property to their grandson after a hundred years. How can we make Uncle Zhang and Aunt Wang get what he wants? Lawyer Advice In this case, Uncle Zhang and Aunt Wang can write a bequest in their own hands, with grandparents as bequeaths and grandsons as recipients, and grandparents indicating in the bequest that their property will be owned by their grandchildren after a hundred years. It is important to emphasize here that it must be a bequest rather than a will, because the grandson is not his legal heir and does not fall within the scope of testamentary succession. In order to ensure the validity of the bequest, because the two parties are 70 years old, before the bequest, it is recommended that Uncle Zhang and Aunt Wang file a lawsuit with the local court in accordance with the cause of the special procedure case, and file a judicial appraisal application to request whether they have civil capacity to identify. If the appraisal institution is identified as a person with civil capacity and declared by the court as having civil capacity, a valid bequest may be made. At the same time of writing the bequest, they should also write two pages of autograph for standby (if the legal heir of the old man has any objection to the authenticity of the bequest, he can apply for handwriting identification of the bequest as a test material), and then the two people write the bequest in full, and autograph and date. If the Legacy Agreement exceeds one page, each page shall be autographed. It is best to let the lawyer witness (or notarize by the notary office) the writing process of the bequest, so as to prove the authenticity of the bequest, signature and date written by the two old people. Since the bequest was made unilaterally by the two old men, the grandson did not participate in the whole process and did not need to sign the bequest. According to the relevant legal provisions, the bequest is a private document and is presumed to be true as long as it is signed or stamped by the maker. The intention of the bequest to give the property to another person indicates that although it was made before the bequest, the transfer of ownership of the property did not occur before the bequest's death, and the bequest would have legal effect only after the bequest's death. His grandson must make a statement of acceptance of the bequest within 60 days from the date on which he knows or should have known of the bequest, otherwise he shall be deemed to have waived the bequest. Regarding the starting point of the bequestee "knowing the bequest within 60 days after the bequest", the author believes that because the inheritance starts from the death of the heir, the bequest occurs only after the beginning of the inheritance, so the earliest starting point of 60 days is from the date of the bequest's death. In other words, if the bequestee was informed of the bequest before the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days from the date of the bequestee's death, and if the bequestee did not learn of the bequest until after the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days of the bequest. The concept of bequest The so-called bequest refers to a way of dealing with an estate in which a natural person gives part or all of his legal property to a person other than the legal heir or a state or collective organization in the form of a will. Supreme People's Court judicial view that First, bequests are unilateral, essential civil legal acts. When a legatee gives his personal property to another person by way of a will, he does not need to obtain the consent of the legatee and any other person. The act of bequest must be carried out in the form of a will, in accordance with the legal form of the will. After the death of the bequestee, the bequestee may or may not accept the bequest. Second, a bequest is an act of giving an estate free of charge. The property benefits given by the bequestee to others through bequests are often gratuitous and, even if accompanied by some obligation, generally have no reciprocal nature, and the bequestee is not bequeathed if it gives property obligations (e. g. debts) to others or makes the bequestee's obligations exceed the rights it enjoys. Third, a bequest is a legal act that takes effect on the occurrence of the fact of death. Although a bequest is an expression of meaning made in a will before the bequest, it must take legal effect only after the bequest's death, so it can be understood as a conditional legal act. Before the bequestee makes a bequest without death, he may change or revoke his intention at any time in accordance with the law. Fourth, the bequestee must survive when the bequest takes effect. If the bequestee dies before the bequestee or at the same time as the bequestee, he cannot become a bequestee because the bequest has not yet taken effect, nor can a legal person become a bequestee if it has been revoked or dissolved at the time of the bequestee's death. Fifth, the bequestee must be a person other than the State, the collective or the legal heir. The legal heir cannot be a legatee, but can only be an heir to the will. The heir to the will can only be designated within the scope of the legal heir, and the bequestee can only be designated outside the scope of the legal heir. In addition, the bequestee must have civil capacity, and the bequest written by the person without civil capacity has no legal effect. For example, minors, mental patients, etc. have no capacity for civil conduct, so their bequests have no legal effect. When a natural person gives his personal property in the form of a will to a person other than the state, collective or legal heir, once the natural person dies, the bequestee knows the bequest of the bequestee, there is a problem of accepting or abandoning the bequest. By nature, the acceptance of a bequest or the abandonment of a bequest is a unilateral civil legal act, that is, as long as the bequestee's unilateral expression can have legal effect, resulting in the consequences of accepting the estate or abandoning the estate. Accepting a bequest requires attention to the following issues (1) The subject of the acceptance or abandonment of the bequest. The subject of the bequest may be the bequestee himself or his agent. (2) The time limit for accepting the bequest. The bequestee shall make an indication of acceptance within 60 days (it must be noted that it is within 60 days, not two months) after the death of the bequestee and the knowledge of the bequest. The 60-day representation period is self-knowledge of the fact of the bequest, and the "knowledge of the fact of the bequest" should be understood as "knowledge or should have known". (3) The form of acceptance of the bequest. To accept a bequest, there must be a clear expression of meaning, the so-called clear expression of meaning, that is, the act of expression must be able to confirm the acceptance of the bequest. The form of representation may be written or other forms, direct or indirect, but to the extent that the acceptance of the bequest can be confirmed. If the bequestee has not expressed its acceptance in writing or orally, but its specific conduct can reflect its acceptance of the bequest, it should also be considered to accept the inheritance, and it cannot simply deny its right to accept the bequest without making a written statement. (4) The right to accept a bequest may be transferred to another person. After the commencement of the inheritance, if the bequestee expressly accepts the bequest, he may transfer the right to another person, and other heirs cannot restrict it, which is in fact a disposition of his own property under civil law. Another way of transfer is that after the commencement of the inheritance, the bequestee has indicated that he accepts the bequest, but dies before the division of the estate, and his right to accept the bequest may be transferred to his heirs in accordance with the law. (5) Treatment of obligatory bequests. If the bequest is accompanied by an obligation, it is necessary to perform the obligation in order to receive the bequest, but whether the obligation is performed first depends on the requirement of the bequest of the decedent. In practice, if the obligation can be fulfilled and the legatee fails to do so without justifiable reasons, the people's court may cancel the right to accept part of the estate with the obligation upon the request of the beneficiary or other heirs, and the requesting heir or beneficiary shall be responsible for performing the obligation and accepting the estate according to the will of the testator; if the legatee with the obligation is indeed unable to perform due to objective reasons, etc, the limitation of rights to bequeathed estates needs to be dealt with on a case-by-case basis, which is not explicitly provided for in the current law. Extended thinking: What to do if the bequestee dies before the estate is divided. If the bequestee dies before the division of the estate, the right of his heirs to accept the bequest depends on the expression of the bequest before the bequest. Only when the bequestee expressly accepts the bequest can he enjoy the right to accept the bequest, and if he waives the bequest, he no longer enjoys the right, and if he does not express it, he is deemed to have waived the bequest and does not enjoy the right. Thus, in the case of the bequestee's acceptance of the bequeathed property, the bequestee's heirs have the right to accept the bequeathed property, and if the bequestee renounces the bequest before life or does not express the bequest, the bequestee's heirs no longer have the right to accept the bequest property because the bequestee does not have the right. Relevant legal provisions (1) the People's Republic of China Civil Code Article 1122: An estate is the lawful property of an individual left over from the death of a natural person. Inheritance may not be inherited in accordance with the provisions of the law or in accordance with its nature. Article 1123: After the commencement of inheritance, it shall be handled in accordance with legal inheritance, and if there is a will, it shall be handled in accordance with testamentary inheritance or bequest; if there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement. Article 124: If the heir renounces the inheritance after the inheritance has begun, he shall make a written statement of renunciation before the estate is disposed of; if there is no such statement, the inheritance shall be deemed to be accepted. The donee shall, within 60 days after knowing the bequest, make a statement of acceptance or abandonment of the bequest. 2. Article 38 of the (I) of the Supreme People's Court on the Interpretation of the Inheritance Code of the the People's Republic of China Civil Code: "If, after the commencement of inheritance, the bequestee expresses his acceptance of the bequest and dies before the division of the estate, his right to accept the bequest is transferred to his heirs." 3. Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (Revised 2019, effective as of May 1, 2020) Article 92 With regard to the authenticity of private documentary evidence, the burden of proof shall be borne by the party who claims to prove the facts of the case by private documentary evidence. If the private document certificate is signed, sealed or stamped by the producer or his agent, it is presumed to be true. If there is any deletion, alteration, addition or other form of defect on a private document, the people's court shall judge its probative force on the basis of the specific circumstances of the case.

2022-03-14

Viewpoint | From "several crimes" to "exemption from punishment" ------ the whole defense of a middle school student's crime-related case

Recently, Jia Xincui, director of the criminal department of Zhongcheng Qingtai (Jinan) Law Firm, accepted the entrustment to handle a case in which a senior high school student was suspected of provoking trouble and gathering people to fight. The case involved nearly 30 high school students, and most of them were close to the college entrance examination. The children's lives seemed to be full of haze. The defense lawyer defended the whole process, peeling off the cocoon layer by layer, from combined punishment for several crimes to exemption from criminal punishment, the sky of the children finally opened. Brief of the case Client Li Moumou (senior high school students) was insulted by Lin and others (all senior high school students) and made an appointment with Lin and others. There were about 8 people in Li and 22 people in Lin. After the two sides arrived at the agreed reservoir, there was a fight, causing one person to be slightly injured. In the afternoon, because classmate Liu Moumou wanted to ask Wang Mou for his girlfriend's medical expenses, Li Moumou followed Liu Moumou to the scene. Liu Moumou beat Wang Mou and demanded 2000 yuan from Wang Mou. The public security organ filed a case on suspicion of gathering people to fight and provoke quarrels, and the public security bureau of a certain district handled the case as a crime-related case. Because the case involved a large number of people, all of whom were students at school, and involved two administrative regions, after the incident, it caused great concern in the two districts. The defense process Investigation stage: The defender proposed that this case is not a criminal case involving gangs, but only a dispute between students and does not constitute a crime. Later, the public security organ took the case as a general criminal case and transferred it to the procuratorate on suspicion of provoking quarrels and affray; Review and prosecution stage: the defender proposed that Li did not constitute the crime of provoking trouble, although there was an act of affray, but it could not be regarded as a crime, and suggested not to prosecute. The procuratorial organ recognized that Li did not constitute the crime of provoking quarrels, but constituted the crime of affray, and filed a lawsuit in the court on suspicion of affray; Trial stage: The defender proposed that although Li Moumou and others had the behavior of gathering crowds to fight, they belonged to a group fight between middle school students due to ordinary conflicts, and the persons involved in the case were all high school students who were about to take the college entrance examination and applied for them. Exempt from punishment. The court finally accepted the defender's opinion and exempted the two (principal offenders) from criminal punishment. The procuratorate then made a decision not to prosecute the remaining 20 or so involved. A whirlwind of adolescence ends in calm. Enlightenment of this case 1. 30 high school students, there are 30 families behind them. If they are treated as crimes, the life trajectory of 30 children will be rewritten. They may really become the opposite of society. The result of such treatment will be unbearable for children, families and society; adolescent children are a special group, and more tolerance and help should be given to them; The ultimate goal of 2. justice is not to punish, but to educate, guide and inspire people's good thoughts and good deeds. The handling of this case is a judicial process with a temperature, which has achieved a high degree of unity between legal and social effects; 3. the current Supreme People's Procuratorate's judicial concept of less arrest, cautious prosecution and cautious judgment is conducive to maintaining social stability and promoting judicial progress; 4. defense lawyers should be able to defend the whole process, and they can do much at the three stages of public, procuratorial and legal.

2022-03-14

Strie ahead | 2022 Jinan Regional Partner Meeting Held Successfully

On March 12, 2022, Zhongcheng Qingtai Law Firm Jinan Regional 2022 Partner Meeting was successfully held. Lawyer Zhou Jiyong, chairman of the Jinan Regional Partner Conference, presided over the meeting, and all partners attended the meeting by video conference. The meeting successfully completed various topics in accordance with the law firm's articles of association and agenda, and listened to and deliberated the 2021 work report of the Administrative Committee, the 2021 supervision report of the board of supervisors, the 2021 financial final accounts report and the profit distribution plan. Voted and approved the 2022 partnership and promotion personnel, Jinan regional management organization adjustment plan; The new Jinan regional management organization was elected. The 2022 financial budget report was reviewed and approved. The board of supervisors supervised the whole process of the meeting and issued a supervision report. The meeting decided to establish a new strategic development committee, which is responsible for formulating strategic plans, analyzing and judging market and industry development, making decisions on major issues, and integrating law firm resources. The meeting elected a new management body, the new members of the management committee are all excellent lawyers born after 1975, and a number of young lawyers born in the 1980 s have entered the partner meeting, the board of supervisors and other institutions, opening the prelude to the intergenerational inheritance of the management rights and responsibilities of the law firm. Lawyer Du Wentang, newly elected director of the management committee, made a report on the main points of the work of the whole institute in 2022 on behalf of the new management organization. Director Geng Guoyu put forward expectations for the new management organization, hoping that the new management committee will be clear-cut in politics, unity and tolerance, take responsibility, forge ahead, reform and innovation, inject more vigor and vitality into the development of the law firm, and promote the high-quality development of the law firm. 2021 is the first year of the 2021-2025 five-year plan for Zhongcheng Qingtai Jinan region. All my colleagues are pragmatic and pragmatic, seeking progress in stability, and realizing the steady development of the law firm. 2022 is a key year for the five-year plan to connect the preceding and the next. All partners will thoroughly implement the spirit of this meeting, strive to adapt to the new situation of economic and social development and the legal service market, and continue to strive for the goal of building a mainstream national project. Go ahead, do your best to do all the work, and bravely create new brilliance.

2022-03-13

Strie ahead | 2022 Jinan Regional Partner Meeting Held Successfully

On March 12, 2022, Zhongcheng Qingtai Law Firm Jinan Regional 2022 Partner Meeting was successfully held. Lawyer Zhou Jiyong, chairman of the Jinan Regional Partner Conference, presided over the meeting, and all partners attended the meeting by video conference. The meeting successfully completed various topics in accordance with the law firm's articles of association and agenda, and listened to and deliberated the 2021 work report of the Administrative Committee, the 2021 supervision report of the board of supervisors, the 2021 financial final accounts report and the profit distribution plan. Voted and approved the 2022 partnership and promotion personnel, Jinan regional management organization adjustment plan; The new Jinan regional management organization was elected. The 2022 financial budget report was reviewed and approved. The board of supervisors supervised the whole process of the meeting and issued a supervision report. The meeting decided to establish a new strategic development committee, which is responsible for formulating strategic plans, analyzing and judging market and industry development, making decisions on major issues, and integrating law firm resources. The meeting elected a new management body, the new members of the management committee are all excellent lawyers born after 1975, and a number of young lawyers born in the 1980 s have entered the partner meeting, the board of supervisors and other institutions, opening the prelude to the intergenerational inheritance of the management rights and responsibilities of the law firm. Lawyer Du Wentang, newly elected director of the management committee, made a report on the main points of the work of the whole institute in 2022 on behalf of the new management organization. Director Geng Guoyu put forward expectations for the new management organization, hoping that the new management committee will be clear-cut in politics, unity and tolerance, take responsibility, forge ahead, reform and innovation, inject more vigor and vitality into the development of the law firm, and promote the high-quality development of the law firm. 2021 is the first year of the 2021-2025 five-year plan for Zhongcheng Qingtai Jinan region. All my colleagues are pragmatic and pragmatic, seeking progress in stability, and realizing the steady development of the law firm. 2022 is a key year for the five-year plan to connect the preceding and the next. All partners will thoroughly implement the spirit of this meeting, strive to adapt to the new situation of economic and social development and the legal service market, and continue to strive for the goal of building a mainstream national project. Go ahead, do your best to do all the work, and bravely create new brilliance.

2022-03-12

Viewpoint... The subject qualification determination and judicial application rules of the third party's withdrawal of the lawsuit.

Introduction As one of the three ways to remedy the rights of outsiders, the third party's revocation lawsuit system is a new system established on the basis of the execution of the objection lawsuit and the outsider's application for retrial. Since the system was established by the Civil Procedure Law in 2012, it has played an increasingly important role in trial practice. As the premise and focus of the trial of such cases, the qualification examination of the subject of the third party to withdraw the lawsuit is controversial in theory and judicial practice. 1. of the Civil Procedure Law of the People's Republic of China to determine the subject qualification of the third party to revoke the action According to the provisions of the first and second paragraphs of Article 59 of the Civil Procedure Law, the third party shall have the right to file a lawsuit against the subject matter of the litigation of both parties if it considers that there is an independent right of claim. Although the third party has no independent claim to the subject matter of the litigation of both parties, if the outcome of the case has a legal interest in him, he may apply to participate in the litigation, or the people's court shall notify him to participate in the litigation. The third party who bears civil liability in the judgment of the people's court shall have the litigation rights and obligations of the parties. Thus, the subject of the third party's revocation action includes two types of third parties, namely, the right of independent claim and the right of non-independent claim. Among them, "a third person with an independent claim" refers to a person who participates in the litigation, whether in whole or in part, as an independent entity right holder, in the subject matter of the litigation between others. "No independent claim third party" refers to the subject matter of the litigation of both parties. Although the third party has no independent claim, but the result of the case has a legal interest with it, it can apply to participate in the litigation, or the people's court Notify the person who participated in the lawsuit. Disputes 2. the qualification of ordinary creditors to bring a third-party revocation suit. There is a great deal of controversy in judicial practice as to whether ordinary creditors with independent claims and third parties other than those without independent claims, as stipulated in the Civil Procedure Law, can bring a third-party revocation suit: The view 1. completely negates that The view was that an ordinary creditor could not independently claim substantive rights in respect of the subject matter in the original case and was not a third person with an independent claim in the case. At the same time, based on the relativity and independence of the claim, the creditor has only an economic interest rather than a legal interest in the outcome of the original case, and is not a third party without an independent claim, and does not meet the subject conditions of the third party's revocation of the claim as stipulated in Article 59 of the current Civil Procedure Law. [Bulletin Case] (2017) Supreme Law Minzong No. 319 The main purpose of the decision: the subject of the third party's revocation shall be strictly limited to two types of third parties with independent claims and no independent claims, and the subject of the right to bring a third party's revocation shall not be extended to two types of third parties who enjoy ordinary claims. The court held that the original case was a dispute over the equity transfer contract between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong. Hu Bingguang and other five people are ordinary creditors who have a private lending relationship with Chen Lianying. First of all, as far as the original case is concerned, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, Hu Bingguang and other five people do not enjoy the independent claim right to the litigation object of both parties in the original case, and they do not belong to the third party with the independent claim right stipulated in the first paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. Secondly, no matter how the original case, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, the result will not affect the rights and obligations under the private lending legal relationship between Hu Bingguang and other five people and Chen Lianying. Hu Bingguang and other five people, as ordinary creditors who have a private lending relationship with Chen Lianying, have a certain de facto relationship with the original case in terms of whether the creditor's rights can be realized, but this de facto relationship is different from legal interests. As far as the original case is concerned, Hu Bingguang and other five people do not belong to the third party without independent claim as stipulated in the second paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. opinion 2. conditional affirmation In this view, ordinary creditors have the subject standing to bring a third-party revocation suit under certain conditions. The legislative purpose of the third party's revocation lawsuit is to provide relief to the third party who has been infringed by the false lawsuit, and should expand the interpretation of Article 59 of the current Civil Procedure Law to include ordinary creditors in the category of third parties. However, considering that the third party's revocation action is a special relief procedure, in order to prevent the abuse of the right of action, and taking into account the authority of the effective judicial instrument, strict conditions should be set for ordinary creditors to bring a third party's revocation action. Ordinary creditors generally do not have the right to bring a third-party revocation action, but in some special circumstances, if the creditor has the right of revocation against the debtor's related civil acts, there is evidence that the debtor's external litigation is suspected of false litigation, the third-party revocation action may be brought. [Guidance Case] (2017) Supreme Law Minzhong No. 626 The main purpose of the decision: because the rights and obligations of the debtor and others are determined by the effective decision document, resulting in the creditor could not exercise the right of avoidance of the debtor's conduct under Article 74 of the Contract Law (Articles 538-540 of the Civil Code), the creditor may bring a third party to cancel the action. The court held that: looking at the relevant provisions of the current civil procedure law on the relief of the third party who has suffered damage to civil rights and interests, such as the third party revocation lawsuit, the outsider's execution objection and the trial supervision procedure, combined with the practical need of establishing the third party revocation lawsuit system for strengthening the relief of the third party who has damaged the legitimate rights and interests due to false litigation or transferring property through litigation, evading debts and other acts in the revision of the civil procedure in 2012, it cannot be concluded that the civil rights and interests claimed by the guarantee center in this case do not fall within the scope of the remedy of the third party's revocation. Therefore, although the relationship between the guarantee center and Wang Wei belongs to creditor's rights and debts in this case, based on the relationship between the guarantee center's creditor's rights to Wang Wei and the aquaculture plant transferred by Wang Wei, the preservation and enforcement measures taken by the court in the litigation and enforcement procedures for the due creditor's rights transferred by Wang Wei due to the aquaculture plant make the impact on the interests of the guarantee center, as well as the basic facts of this case that the guarantee center claims that the damaged civil rights and interests have obstacles to filing a revocation right lawsuit according to Article 74 of the Contract Law due to civil mediation document No. 183, it can be concluded that Wang Wei and Lu Jinying have a legal interest in the handling result of the dispute over the sales contract with the guarantee center, and the guarantee center has the right to file a lawsuit for revocation by the third party in this case. [Supreme Law Case] (2018) Supreme Law Minshen No. 3403 The main purpose of the decision: Ordinary creditors damaged by false litigation have the right to file a third-party revocation. The court held that the question of whether Ding Jianbing was a qualified plaintiff in the third party's revocation lawsuit had been clarified in the original trial. That is to say, in the original lawsuit, Ruiya Company requested to confirm the invalidity of the Commodity House Sales Contract with Xu Aiyun, which only involved the relationship between Ruiya Company and Xu Aiyun. Ding Jianbing did not put forward an independent claim on the subject matter of the original lawsuit. The subject matter of the original lawsuit and the private loan contract and the guarantee contract involved in the case No. 20 are independent of each other, and have no legal implications, therefore, Ding Jianbing is not a third party with an independent claim, nor is he a third party without an independent claim who has a legal interest in the original case. However, one of the main purposes of the revision of the the People's Republic of China Civil Procedure Law in 2012 to create the third party revocation litigation system is to regulate false litigation. Therefore, in addition to the third party with the right of independent claim and the third party without the right of independent claim, the subject of the third party's revocation of the lawsuit also includes the third party whose civil rights and interests have been infringed by the false lawsuit, and the ordinary creditor whose claim is difficult to realize due to the result of the original judgment also has the subject qualification to bring the third party's revocation lawsuit. In this case, Ding Jianbing applied for pre-seizure of the presale commercial housing purchased by Xu Aiyun, the original party, and obtained a successful judgment. The realization of his creditor's rights is related to whether the pre-seizure property can be realized, and the result of the original judgment may defeat the purpose of pre-seizure. In fact, Raya Company has also filed a separate lawsuit against the execution of the pre-seizure act by outsiders based on the effective judgment of the original case, demanding to block the execution of the property involved in the case. In the case of claiming that there is a false lawsuit in the original case, Ding Jianbing, as a creditor, has the subject qualification to bring a third party to cancel the lawsuit. The expansion of the subject qualification of the third party's revocation lawsuit in the Minutes of the Ninth People's Conference in 3.. Article 120 of the Minutes of the Ninth People's Meeting stipulates that the third party in the third party's revocation action is limited to the third party with independent claim and no independent claim as stipulated in Article 56 of the Civil Procedure Law, and generally does not include creditors. However, the purpose of the establishment of the third party's revocation suit is to remedy the civil rights and interests enjoyed by the third party who did not participate in the proceedings because of the cause that cannot be attributed to him but was damaged by the wrong content of the effective adjudication document. Therefore, the creditor can bring the third party's revocation suit under the following circumstances:(1) the creditor's right is the creditor's right that the law clearly gives special protection, for example, the priority of compensation for construction project price stipulated in Article 286 of the Contract Law and the priority of ships stipulated in Article 22 of the Maritime Law;(2) Because the rights and obligations of the debtor and others are determined by the effective judgment document, the creditor could have enjoyed the right of revocation but could not exercise the debtor's behavior stipulated in Article 74 of the Contract Law and Article 31 of the Enterprise Bankruptcy Law;(3) The creditor has evidence to prove, the contents of the creditor's rights determined in the main text of the judgment document are partly or wholly false. Creditors also have to meet other conditions stipulated in the law and judicial interpretation to file a third party revocation suit. For other claims, creditors may not, in principle, sue for avoidance by a third party. As a result, the Minutes of the Ninth People's Meeting, on the one hand, strengthens the third party with independent claim and the third party without independent claim as the subject of the third party's revocation lawsuit stipulated in Article 59 of the current Civil Procedure Law, and on the other hand, appropriately expands the subject of the third party's revocation lawsuit, bringing creditors in line with specific circumstances into the subject category of the third party. However, in order to prevent outsiders from abusing their litigation rights and affecting the stability and authority of the effective decision, the Minutes of the Ninth People's Meeting strictly limits the subject qualification of creditors to bring a third-party revocation suit, that is, it is limited to creditors who have priority, statutory revocation rights and who are victims of false litigation in accordance with the law. Conclusion The plaintiff of the third party's revocation action should be the third party who did not participate in the original litigation because it could not be attributed to himself, including the third party with the right of independent claim and the third party without the right of independent claim. In principle, ordinary creditors are not protected by a third-party revocation suit, I .e., the ordinary creditors of the original parties are generally not able to initiate a third-party revocation suit as a plaintiff. However, if the parties in the original case collude in bad faith to carry out false litigation, ordinary creditors may, as victims of false litigation, file a third-party revocation suit; in addition, the law clearly provides for special protection of claims, including those with legal priority and those with legal right of revocation, can also be protected by a third-party revocation suit.

2022-03-11

Not guilty! No prosecution! A contract fraud case defended by lawyers Meng Fanhu and Cui Shouxu from Jinan, Zhongcheng Qingtai, was legally non-prosecuted.

Yangchun March, spring is full! When Zhang Jun, chief procurator of the Supreme People's Procuratorate, made a report on the work of the Supreme People's Congress at the fifth session of the 13th National People's Congress that the procuratorial organs should actively implement the criminal justice policy of less arrest and cautious prosecution, the procuratorial organ in Jinan, Shandong Province, implemented the new era procuratorial concept of "active performance of duties according to law", In-depth investigation and study of a major contract fraud crime case in the examination and prosecution stage, strictly control the facts, evidence, and law, and carefully listen to the opinions of defense lawyers, and believe that "the behavior of the person who is not prosecuted does not fabricate facts, conceal the truth to defraud the other party's property, and there are no criminal facts", and decided not to prosecute him in accordance with the law. It protects the legitimate rights and interests of the parties and avoids the occurrence of a major criminal misjudged case that may be sentenced to more than ten years in prison. The investigation agency of the case believes that in 2003, the suspect Liu Moumou, in the name of a real estate development company in Qingdao, acquired an independent building in a military property in Qingdao through auction and gave the property to others. After many rounds of work, the building was transferred by Dong Moumou with 5.5 million yuan. In June 2012, Liu Moumou used the above-mentioned real estate that had been donated to others and did not belong to him, and signed the "House Use Right Transfer Agreement" with the victim Xing Moumou, defrauding Xing Moumou of 800000 yuan, suspected of contract fraud. The client entrusts a team of senior criminal lawyer Meng Fanhu and lawyer Cui Shouxu, who has been practicing in our institute for nearly 30 years, to serve as his defender. After accepting the entrustment, the lawyer team carefully analyzed and studied the case file materials, communicated with the parties several times on the details of the case, based on the facts and evidence in the case, and determined the idea of innocent defense. The defender believes that the 1. evidence in the case proves that before purchasing the right to use the real estate involved, Xing Moumou knew that the real estate involved was under the actual control of others, Liu Moumou had lost his right to control the real estate, and Xing Moumou knew the fact that he could only get the real estate involved and could not directly obtain the right to use the real estate after paying the consideration. 2. the subject matter transferred in this case is the real estate involved, it is actually the auction procedure, xing's intention was to try to get the auction procedures and then sue the owner of the property; 3. the property involved in the transfer process, Liu did not carry out any fictitious facts or conceal the truth; 4. the transfer process involved is a normal market transaction activity, Liu Guanglong subjectively has no purpose of illegal possession. Therefore, Liu Moumou delivered the procedures of the real estate involved in the case, and Xing Moumou paid the corresponding consideration. Without violating the mandatory provisions of the law, the transaction activities involved in the case should be protected by law. This is a normal market transaction behavior. In the course of the transaction, Liu's behavior is obviously different from the criminal act of defrauding other people's property for the purpose of illegal possession, and Liu's behavior involved in the case does not constitute the crime of contract fraud. During the year-long review and prosecution period, the defender communicated with the prosecutor many times and submitted a written defense of innocence and an application for non-prosecution. In the end, the public prosecution agency recognized and adopted the defender's opinion, and declared the party Liu Moumou innocent by not prosecuting, and the defense was a complete success! The legal basis for the procuratorial organ to make a decision not to prosecute in this case is Article 177 of the the People's Republic of China Criminal procedure Law, which gives the procuratorial organ the important power to exercise the decision not to prosecute. "Shangshu" contains: "It is better to lose than to kill innocent people". The right of non-prosecution is an important part of the right of public prosecution in China, which plays an active role in strengthening the objective and impartial obligation of prosecutors, ensuring that innocent people are not subject to criminal investigation, implementing the criminal policy of combining justice with mercy, and implementing the economic principles of litigation. The procuratorial organ in this case has the courage to take responsibility, adheres to the criminal concept of "no suspected crime" and "no prosecution in doubt", objectively and comprehensively examines the evidence in the case, and attaches great importance to the opinions of lawyers. it avoids the criminal risk that the person who is not prosecuted may be wrongly prosecuted and sentenced to 10 years in prison, protects the legitimate rights and interests of the parties to the maximum extent, and ensures the correct implementation of the law. The professionalism and dedication of the defense lawyers in this case was highly praised by the parties. The successful defense of the case demonstrates the professional image of our criminal business team of "craftsmanship and high-quality cases", and further enhances the reputation of "Zhongcheng Qingtai" lawyers in the industry and society.

2022-03-11

Judicial Interpretation of the General Provisions of the Civil Code | Interpretation of "Major Misunderstandings"

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the the People's Republic of China Civil Code (hereinafter referred to as the "Judicial Interpretation of the General Provisions of the Civil Code") was adopted at the 1861st meeting of the Judicial Committee of the Supreme People's Court on December 30, 2021 and will come into force on March 1, 2022. The judicial interpretation of the general provisions of the civil code is an in-depth and detailed interpretation of the ten chapters in the general provisions of the first part of the civil code. It is an interpretation formulated by the Supreme People's court in order to correctly hear civil cases, protect the legitimate rights and interests of civil subjects according to law, and maintain social and economic order, in accordance with the the People's Republic of China civil code, the People's Republic of China civil procedure law and other relevant laws and regulations, combined with trial practice. Articles 19 and 20 of the Judicial Interpretation of the General Provisions of the Civil Code are the interpretations of major misunderstandings in Article 147 of the Civil Code. With the continuous development of the theory and practice types of civil legal acts, the understanding and scope of application of "major misunderstandings" have also changed. This article will start from the "Judicial Interpretation of the General Provisions of the Civil Code" to interpret "major misunderstandings. Historical changes in relevant provisions of 1. major misunderstandings General Principles of the People's Republic of China Civil Law (2009 Amendment) (Expired) Article 59 A party shall have the right to request a people's court or an arbitration organ to modify or cancel the following civil acts: The perpetrator of the (I) has a major misunderstanding of the content of the act; (II) is obviously unfair. A revoked civil act shall be null and void from the beginning of the act. Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the the People's Republic of China Civil Law (for Trial Implementation) (Expired) 71. If the perpetrator's misunderstanding of the nature of the act, the other party, the variety, quality, specification and quantity of the subject matter makes the consequences of the act contrary to his own meaning and causes greater losses, it may be considered a major misunderstanding. 73. If the parties request a change in a major misunderstanding or obviously unfair civil act, the people's court shall change it; if the parties request a revocation, the people's court may, as appropriate, change or revoke it. The people's court shall not protect a civil act that can be changed or revoked if the party concerned requests to change or revoke it more than one year from the time of its establishment. 77. The meaning is conveyed by the obligation of a third party, and if the third party causes damage to others due to negligence or failure to convey, the meaning person may generally be liable for compensation. However, unless otherwise provided by law or otherwise agreed by both parties. the People's Republic of China Civil Code Article 147 The perpetrator of a civil juristic act committed on the basis of a material misunderstanding shall have the right to request a people's court or an arbitration institution to cancel it. Guidelines for the Operation of Litigation Operations in Civil Contract Dispute Cases Article 11 The examination of whether a major misunderstanding is constituted shall be conducted in the following aspects: (I) whether the counterparty to the contract has a major misunderstanding of the nature of the contract, the type, quantity, quality, and consequences of the subject matter; Whether the (II) misunderstanding was caused by the misunderstood party itself and not by fraud or improper influence on the other party; whether the counterparty to the contract made the wrong meaning as a result of a material misunderstanding; and whether the misunderstanding directly affected the rights and obligations of the misunderstood party. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the the People's Republic of China Civil Code Article 19 If the perpetrator has a wrong understanding of the nature of the act, the other party or the variety, quality, specification, price, quantity, etc. of the subject matter, according to the usual understanding, if the wrong understanding does not occur, the perpetrator will not make a corresponding expression of intention, the people's court may determine that it is a major misunderstanding as stipulated in Article 147 of the Civil Code. If the perpetrator can prove that there was a major misunderstanding in the implementation of the civil legal act and request the revocation of the civil legal act, the people's court shall support it in accordance with the law; however, unless it is determined that the perpetrator has no right to request revocation based on transaction habits. Article 20 If the perpetrator requests the revocation of a civil juristic act on the ground that his will expresses the existence of a third party's transmission error, the provisions of Article 19 of this Interpretation shall apply. Interpretation of the current judicial interpretation of 2. major misunderstandings Definition of (I) "Major Misunderstanding" Article 71 of the "People's Opinions": "The perpetrator's misunderstanding of the nature of the act, the other party, the variety, quality, specification, and quantity of the subject matter makes the consequences of the act contrary to his own meaning and causes greater losses., Can be considered a major misunderstanding." The invalid "People's Opinions" summarized that it was identified as a "major misunderstanding", which was a misunderstanding that made the consequences of the behavior contrary to its own meaning and caused greater losses. The first paragraph of Article 19 of the Judicial Interpretation of the General Provisions of the Civil Code is amended to read, in accordance with the usual understanding, that if the wrong understanding does not occur, the perpetrator will not make a corresponding intention. This amendment not only perfects the expression of "contrary to meaning", but also reasonably deletes "causing loss. 1. "Major misunderstanding" itself is a kind of meaning expression, which is made on the basis of wrong understanding. If there is no "wrong" understanding, it will not be based on "error" and "meaning". Therefore, whether or not to cause a large loss can not be the basic element to judge whether it constitutes a major misunderstanding, from the result of the act to extrapolate the nature of the act itself is a logical reversal, so that some of the wrong understanding to make the corresponding meaning but did not produce the corresponding loss of the act can not be characterized. 2. If the wrong understanding does not occur, the actor will not make the corresponding understanding. First of all, the wrong understanding is the nature of the error rather than the value of the error. The nature error includes the nature of the act, the other party or the subject matter of the variety, quality, specification, price, quantity and other objective existence of the wrong judgment, and personal value judgment is not included. Example: Wang's husband, Li, died in a traffic accident on the way to send Zhang a driver's license. Zhang mistakenly thought that he should bear tort liability for Li's death, so he signed an economic compensation agreement with Wang for 200000 yuan. After Zhang fulfilled part of the payment, he found that he had a misunderstanding of the law. In fact, he did not have to bear any legal responsibility for Li's death, so he did not agree to fulfill the obligation of payment. The court of second instance held that the agreement between Zhang and Wang was valid, "and Zhang's personal value judgment, that is, the wrong understanding of the law, was not a major misunderstanding, and accordingly rejected Zhang's appeal request. Secondly, according to the principle of "interpretation precedes error", according to the rules of interpretation of meaning, combined with the objective situation and specific background at the time of the act, to confirm the normative meaning of the expression of the act, if the normative meaning is inconsistent with the inner meaning of the meaning of the person, it constitutes a major misunderstanding. For example, a Tmall store mistakenly set the navel orange of "4500g in 26 yuan" to "4500kg in 26 yuan" due to operational errors. Millions of orders were formed overnight. After a large number of buyers placed orders, they complained to the Tmall platform on the grounds that the store did not deliver the goods on time, resulting in the deposit of the store being deducted and closed. The buyer agreed to the seller's offer and made a valid commitment to establish a 26 yuan 4500kg navel orange sales contract between them, but the seller established a major misunderstanding and had the right to cancel the contract. Finally, the exclusion of "misinformation does not harm the true meaning" and "narrowly motivated errors. "Miscarriage does not harm the true meaning" means that the parties have reached an agreement on the expression of meaning, just because the expression or expression is wrong, such as the wrong use of words is not a major misunderstanding. Example: A and B agreed that A would sell 100 tons of whale meat to B. The written contract signed by the two parties stated: "A sells 100 tons of Haakjoringskod to B." "Haakjoringskod" is Norwegian and means "shark meat", but both A and B entered into the written contract with the word meaning "whale meat". It can be determined by explanation that A and B agree that A sells whale meat to B, not shark meat. Although the written contracts of A and B used the wrong words, "miscarriage does not harm the true meaning", A and B established a 100-ton whale meat sales contract instead of a 100-ton shark meat sales contract. Similarly, "error of motive in the narrow sense" means that the motive is not part of the content of the legal act, and if the content of the meaning is not wrong, the mere error of the inner cause (motive) of the meaning is not a major misunderstanding. Example: The buyer heard that a house somewhere will open the subway in two years, and then it will appreciate significantly (hearsay, not the developer's promise), so he decided to buy the house. In fact, the subway will not be opened in two years. The buyers feel that they have misunderstood the house and asked to return it. At this time, the buyer cannot ask to check out on the grounds of major misunderstanding, because this is only the wrong motive for buying a house, and the civil law does not protect the motive. (II) "trading habits" Article 19, paragraph 2, of the Judicial Interpretation of the General Provisions of the Civil Code also lists "trading habits" as an exception to the right to release major misunderstandings, and cautiously and creatively uses "trading habits" as an auxiliary line of judgment to determine whether they constitute a major misunderstanding. In considering whether a civil juristic act constitutes a "material misunderstanding", the context of the conclusion of the contract, the overall economic situation and other factors should be taken into account. For example, in the classic case, we discussed drinking a bottle of mineral water in the hotel. The guests thought it was a gift and the hotel thought it was consumption. We should consider the objective rules when judging. If it is now, the hotel will give away two bottles of water, which is also a common phenomenon. Although there is no written contract agreement, it is already a common standard for hotel accommodation agreements, and there is no major misunderstanding. Admittedly, to take a step back, even 20 years ago, there was no general rule for hotels to give away mineral water. In the absence of agreement between the two parties, it was neither a gift nor consumption. The act of picking up mineral water to drink could not constitute a promise. There was no intention to buy water. The contract was not established and there was no "major misunderstanding". The Judicial Interpretation of the General Provisions of the Civil Code adds the exception of "trading habits" and lists "trading habits" separately, taking into account the objective environment and general understanding, as well as special industry norms and specific trading habits, such as the field of art trading. Although this new rule is not used as a basis for adjudication, it is reflected in the gist of adjudication in typical cases in practice. (2011) Bai Minchu Zi No. 2694 Case Judgment Summary The buyer and the seller have confirmed the pictures and objects of the artwork before signing the contract for the sale of the artwork. In the whole transaction process, the seller has not made any evaluation, judgment and commitment to the manufacturing age and material of the artwork. Because the folk trade of art depends to a greater extent on the knowledge and experience of traders, its value depends on the spiritual needs of decoration and appreciation. Once the buyer decides to proceed with the transaction, it should be determined that the buyer does not constitute a material misunderstanding, even if the material or age of the artwork does not conform to his judgment. In this case, the buyer is not entitled to claim avoidance of the contract on the grounds of material misunderstanding. (III) the effect of "third person relaying wrong" behavior is consistent with "material misunderstanding" According to article 77 of the People's Republic of China, "The expression of intention is conveyed by the obligation of a third party, and if the third party causes losses to others due to negligence or failure to convey it, the person expressing the intention may generally be liable for compensation. Except as otherwise provided by law or otherwise agreed by both parties." This provision only allocates the responsibility for the loss arising from the "misrepresentation", establishes the principle that the person expressing the intention is liable for compensation, and the law provides otherwise or the parties agree otherwise as an exception to the allocation of responsibility, but does not give a clear characterization of the act of "misrepresentation. Article 20 of the Judicial Interpretation of the General Provisions of the Civil Code aligns the effect of the act of "third party conveying errors" with the "major misunderstanding" of Article 19. But it is worth noting that the third person to convey the error should be distinguished from the unauthorized agent. The third person's transmission error must be that the ideographic person expresses his intention to the third person to convey it. The third person's error in the process of transmission is unintentional, but the transmission effect of the error belongs to the ideographic person. In this case, the contract can be directly canceled according to major misunderstanding. According to the rule of unauthorized agency, the ideographic person can ratify the behavior of the unauthorized agent, A bona fide counterpart may exercise the right of reminder and revocation.

2022-03-09