01
2023-03
In order to promote state-owned enterprises to comprehensively strengthen compliance management, effectively prevent and control business risks, promote enterprise compliance management, and ensure the sustainable, stable and healthy development of enterprises, compliance management plays an important role in enterprise risk management, and plays an important role in preventing and controlling risk management and promoting the rule of law. On February 28, lawyer Deng Pu of Zhongcheng Qingtai (Jinan) Law Firm gave a training lecture on "Key Points and Typical Cases of Compliance Management System Construction" for Shandong Property Rights Trading Group and its ownership enterprises. Through concise and clear language, lawyer Deng Pu explained the development process of compliance management, the importance and necessity of compliance management, the objectives of compliance management, the key contents of the compliance management measures of Shandong property rights trading group, and the analysis of typical cases, which were highly praised by the leaders of Shandong property rights trading group.
2023-03-01
28
2023-02
Viewpoint... Study on the legal risk of "gambling agreement".
Foreword With the rapid development of China's market economy, the volume of commercial transactions of listed trading entities, especially enterprises, is increasing year by year, so the financing needs of enterprises are gradually increasing. Traditional financing methods have gradually been unable to meet the needs of enterprises efficient and convenient, so a variety of new financing models have emerged. Among them, the "gambling agreement" as a special means of investment and financing, with its unique adjustment of valuation and risk diversification mechanism is widely used. However, from the beginning of the emergence of the "gambling agreement" financing model, there are more legal risks in terms of its own effectiveness and actual performance. The purpose of this paper is to sort out the common risks of the "gambling agreement" behavior model in practice, and put forward their own solutions to seek advice from colleagues. An overview of the financing function of the 1. "gambling agreement" and its basic form. The essence of the "gambling agreement" is a valuation adjustment mechanism, which is widely used in private equity investment and corporate valuation transaction arrangements by eliminating the uncertainty in equity pricing as much as possible. In the process of gambling, the gambling parties or parties will temporarily put aside the valuation dispute of the target company, and set objective conditions or objectives that can be recognized by all parties within a certain period of time according to the actual operating conditions of the company, so as to finally determine the actual value of the equity of the target company. However, due to the essential characteristics of the "gambling agreement", the gambling agreement itself has the characteristics of commercial information asymmetry: that is, the investor can not determine the equity value of its investment. As a result, "gambling agreements" in practice often contain very clear compensation clauses. The existence of the compensation clause enables the investor to inject capital into the target company at a higher equity valuation when the business information of the gambling counterparty is relatively vague, and also allows the financier to temporarily obtain the huge amount of funds needed for business development. The above is the "gambling agreement" to complete its financing value of the practice. In practice, the investors of the "gambling agreement" are mostly equity funds or venture capital institutions established by private placement, while the financing party is the company, the company's shareholders or the actual controller of the company. The types of "gambling agreement" are generally divided into: ① gambling with the shareholders or actual controllers of the target company; ② gambling with the target company; ③ gambling with the target company, the shareholders and actual controllers of the target company; according to the different gambling methods, they are generally divided into: ① agreed repurchase gambling; ② cash compensation gambling. Changes in the legal risk of 2. "gambling agreements": from effectiveness risk to performance risk The legal risk related to the "gambling agreement" is first reflected in the effectiveness risk, that is, the "gambling agreement" signed by the parties is directly found to be invalid by the court. The "Gansu Shiheng case" in 2012 was recognized as a representative case that found the "gambling agreement" invalid. The Supreme Court judge who heard the case held that in private financing activities, the relevant provisions of the Company Law and the contract Law should be followed when the investment and financing parties agree to gamble. The court held that if the contract was performed, it would enable the investor to obtain excess returns, to the detriment of the interests of creditors and the target company, while putting the investor in a superior position, endangering the basic principles of company law and even civil law, and therefore found that the gambling agreement was invalid. The invalid determination determined by the case lasted for a long time in our country, until the emergence of the "Huagong case" in 2019. The Jiangsu High Court believes that the relevant share repurchase clause involved in the "gambling agreement" signed between Jiangsu Huagong Company and Yangzhou Yangforging Company will not violate the principle of capital maintenance of the company after fulfilling the legal procedures, nor will it cause damage to the interests of the company's shareholders and their creditors, so the "gambling agreement" should not be deemed as of course invalid. The emergence of the "Huagong case" has led to differences in the determination of the validity of the "gambling agreement" in China's judicial practice, but at the same time, it also shows that China's judicial attitude towards the validity of the "gambling agreement" has changed. The issue was then clearly combed in the Ninth Minute, and the dispute over the validity of the "gambling agreement" became history. Article 5 of the Ninth Minute stipulates that the validity of the agreement between the investor and the company or the individual shareholders of the company will not be invalid due to the subject of the gambling, and if it does not violate the relevant mandatory provisions of validity, the court will find the gambling agreement valid and support the performance according to the actual conditions. If the investor appeals to the law for actual performance, whether the target company can be judged to perform its gambling obligations, the people's court shall review whether the performance complies with the provisions of the Company Law and other relevant laws. In summary, it can be seen that since the introduction of the Ninth Minute, the legal risk related to the "gambling agreement" has changed from validity to performance. 3. Combing and Exploring the Performance Risk of "Gambling Agreement" From the relevant provisions of the Ninth Minute on the "gambling agreement", the legal risks of the "gambling agreement" in the performance of the "gambling agreement" are broadly as follows: 1. Agreed repo-type bets may not be materially performed due to the shackles of the capital reduction process. If the "gambling agreement" stipulates the terms of share repurchase, when the target company needs to buy back the shares in order to fulfill the "gambling agreement", according to the principles and relevant provisions of the nine people's minutes and the company law, the capital reduction procedure must be carried out. This is because a share buyback without fulfilling the capital reduction process would violate the capital maintenance principle at the heart of the three principles of corporate law. However, according to the relevant provisions of the Company Law, the resolution of a company to reduce its registered capital needs to be passed by a vote of shareholders representing more than 2/3 voting rights, that is, an absolute majority.. And the legal and effective capital reduction procedure needs to follow the principle of capital maintenance and meet the requirements of protecting the interests of the company's creditors. Such tough regulations bring about the cumbersome nature of the capital reduction process. At the same time, fulfilling the repurchase obligation means that the company uses its own funds to repurchase shares from shareholders that have little commercial value and are not highly held, so in practice, other shareholders do not treat the company's capital reduction process in a positive manner based on their own interests. 2. The source of compensation cash in a cash compensation "gambling agreement" may result in the agreement not being performed or not being fully performed. In judicial practice, the parties in many cases will ask the court to adjust the amount of funds in the "gambling agreement. The reason for the adjustment is unambiguous and is nothing more than underfunding. But the problem behind the lack of funds is worth pondering: what is the scope of the source of funds for cash compensation? The Nine People's Minutes stipulates that the source of funds for cash compensation must be the after-tax profits after the withdrawal of the statutory provident fund. However, the Ninth Minute does not make a clear scope for the "after-tax profits" it refers. Therefore, the following problems arise in practice: Is the source of cash compensation limited to the company's after-tax profits in the current year, or should it include the undistributed after-tax profits in the past business process of the company in order to achieve the business objectives? And is it reasonable to use the existence of distributable profits as the standard for whether the agreement should be fulfilled? Because logically, as long as the prohibition of the law is not violated, the company can fulfill its obligations under the agreement with its own assets. 4. risk response recommendations From the above description, it is easy to see that there are various legal risks in the performance of the "gambling agreement", which may lead to the agreement not being fully performed. In my opinion, most of the above legal risks stem from the restrictions on the performance of agreements imposed by the relevant provisions of China's Company Law. The author thinks that to solve the above risks, we can try to jump out of the scope of the company law regulation: that is, regardless of the nature of the "gambling agreement", from the legal attribute, it belongs to the contract. The failure to perform the agreement due to the principle of capital maintenance, the shackles of the capital reduction procedure or the significance of the repayment of the source of funds constitutes a default in the nature of the contract law. The above-mentioned reasons for delayed performance are often subject to the peremptory norms of the Company Law, but should not prevent the contract law rules from delaying the liability for breach of contract due to temporary performance. Therefore, the author suggests that when the parties to the transaction enter into a "gambling agreement", it is best to agree on a liquidated damages clause in the gambling agreement to ensure the realization of their own legitimate interests. Conclusion With the increasing development of financing means, accurately grasping the legal risk of financing behavior is an indispensable part of the process of improving the efficiency of transactions, so the author introduces the risk of "gambling agreement" and the rough risk response model in this article, with a view to discussing with you.
2023-02-28
25
2023-02
In order to regulate private investment funds engaged in real estate investment business, better support the revitalization of real estate, and promote the stable and healthy development of the real estate market. On February 20, 2023, the official website of the China Securities Regulatory Commission (hereinafter referred to as the "China Securities Regulatory Commission") issued a document "The China Securities Regulatory Commission launched a pilot real estate private equity investment fund to support the stable and healthy development of the real estate market". At the same time, the China Securities Investment Fund Industry Association (hereinafter referred to as the "China Foundation Association" or the Association) issued the "Guidelines for the Pilot Filing of Real Estate Private Investment Funds (Trial)" (China Foundation Association [2023] No. 4) (hereinafter referred to as "" Real Estate Fund Pilot Filing Guidelines ") and supporting drafting instructions clearly allow private equity fund managers who meet the requirements to set up real estate private investment funds, invest in specific residential housing, commercial operating housing and infrastructure projects. Clarify the new category of "real estate private equity investment fund", and promote the pilot work in accordance with the principle of pilot first and steadily advancing, and will be implemented on March 1, 2023. there are a total of 21 filing guidelines issued this time, it mainly puts forward normative requirements from the investment scope of real estate private investment funds, the declaration conditions of pilot managers, product types, initial fundraising scale and capital contribution requirements, the necessary clauses of fund contracts, related party transaction rules, fund leverage rules, regulatory requirements for manager management behavior, special risk disclosure rules, fund application procedures, filing procedures, information disclosure and submission requirements, etc, the relevant provisions of the pilot filing guidelines are described as follows: Investment Scope The investment scope of real estate private equity investment funds includes specific residential housing (including stock commercial housing, affordable housing, market-oriented rental housing), commercial business housing, infrastructure projects, etc. The (I) stock of commercial housing refers to the stock of commercial housing projects that have obtained the state-owned land use certificate, construction land planning permit, construction project planning permit, construction project construction permit, and presale permit, and have achieved sales or the main construction project has started. Including ordinary houses, apartments, etc. (II) affordable housing refers to the policy housing that has obtained the state-owned land use certificate and has set up limited standards, limited prices or rents to solve the housing difficulties, including public rental housing, affordable rental housing, shared property housing, etc. (III) market-oriented rental housing refers to the rental housing that has obtained the state-owned land use certificate and construction land planning license, and does not carry out long-term market-oriented rental operation for the purpose of splitting property rights sales, but is not included in the indemnificatory rental housing system. (IV) commercial business premises refer to real estate projects for the purpose of development, construction or operation for commercial activities, including office buildings, shopping malls, hotels, etc. (V) infrastructure projects refer to real estate projects that are developed, constructed or operated for municipal engineering, public life services, and commercial operations, including high-speed railways, highways, airports, ports, warehousing and logistics projects, urban rail transit, municipal roads, water, electricity and heat Traditional infrastructure such as municipal facilities and industrial parks, new infrastructure such as 5G base stations, industrial Internet, data centers, and new energy wind power photovoltaic facilities. Reporting conditions of the administrator In accordance with the principle of pilot first and steadily advancing, the manager may establish a real estate private investment fund in accordance with these Guidelines if it meets the following circumstances: The (I) is registered as a private equity investment fund manager in the association in accordance with the law; The capital contribution structure of the (II) is stable, and the main investors and actual controllers have not changed in the last two years; The main investor and actual controller of the (III) shall not be the real estate development enterprise and its related parties, except in the case where the private equity fund investment needs to send management personnel to the real estate development project enterprise; The (IV) has a sound governance structure, management system, decision-making process and internal control mechanism; The paid-in capital of the (V) is not less than 20 million yuan; The (VI) has real estate investment management experience, and the principal of real estate investment under management is not less than 5 billion yuan, or the cumulative principal of real estate investment under management since the registration of the manager is not less than 10 billion yuan; (VII) has more than 3 real estate private investment projects successfully exit experience; (VIII) professionals with real estate investment experience, the investment department has no less than 8 professionals with more than 3 years of real estate investment experience, of which no less than 3 with more than 5 years of experience; No major violations of laws and regulations have occurred in the (IX) in the last three years; (X) other circumstances required by the CSRC and the Association. If the investors of the pilot real estate private equity investment fund are all institutional investors, the (VI) requirements of the preceding paragraph may be that the principal of the real estate investment under management is not less than 3 billion yuan, or the accumulated principal of the real estate investment under management since the registration of the manager is not less than 6 billion yuan. Product Type The Association adds a "real estate private equity fund" product type under the type of private equity fund. The establishment of a private equity fund engaged in real estate investment business in accordance with these Guidelines shall select the product type as "real estate private equity investment fund". Initial fundraising scale and capital contribution requirements 1. initial raising scale: the scale of the first round of paid-in funds raised by real estate private equity investment funds shall not be less than 30 million yuan. 2. capital contribution requirements: the first round of real estate private investment fund investors paid-in capital is not less than 10 million yuan. Among them, for real estate private equity investment funds with natural person investors, the total contribution amount of natural person investors shall not exceed 20% of the paid-in amount of the fund. In the form of partnerships, contracts and other unincorporated forms, directly or indirectly investing in real estate private equity investment funds by pooling the funds of most investors, it should be penetrated and verified, but basic pensions, social security funds, annuity funds and other pension funds, charitable funds, etc. Social welfare funds, insurance funds, asset management products issued by financial institutions, and QFLP pilot private equity funds established in China to raise funds for foreign investors are excluded. If the manager and its employees invest in the real estate private investment fund under management, they shall not be subject to the provisions of the first paragraph of this article. Special rules for real estate private investment funds to provide loans or guarantees for invested enterprises. A real estate private equity investment fund that provides loans or guarantees to an investee enterprise shall meet the following conditions: The (I) fund contract has a clear agreement and performs the decision-making procedures agreed upon in the fund contract; the maturity date of the (II) loan or guarantee shall not be later than the date of completion of the liquidation of the fund; If the (III) has a natural person investor, the real estate private equity investment fund shall hold more than 75% of the equity of the invested enterprise; If the (IV) are all institutional investors, the real estate private equity investment fund shall hold more than 75% of the equity of the invested enterprise, or hold more than 51% of the equity of the invested enterprise and the invested enterprise provides guarantee, so as to realize asset control. If the amount of equity contribution of the real estate private equity investment fund to the invested enterprise belongs to item (III) of the preceding paragraph, it shall not be less than 1/3 of the total amount of capital contribution to the invested enterprise; if it belongs to item (IV) of the preceding paragraph, it may be agreed upon by the fund contract. According to the fund contract or after fulfilling the decision-making procedures stipulated in the fund contract, the real estate private equity investment fund may, on the basis of commercial rationality, provide the fund property to the external pledge, and expand the source of investment funds by applying for business property loans, merger and acquisition loans, etc. Clarify the mandatory custody requirements for real estate private equity funds. Real estate private investment funds shall be held in trust by institutions that have obtained fund custody qualifications in accordance with the law. The fund custodian shall earnestly perform the duties of the custodian, supervise the investment scope, investment mode and qualified investors of the real estate private investment fund to continuously meet the requirements, and report the operation of the real estate private investment fund investment target and investor changes to the association on a quarterly basis. Clarify the necessary terms of the fund contract for real estate private equity funds. The real estate private equity investment fund contract shall clearly stipulate the following contents: (1) investment scope, investment mode, exit mode, etc.; (II) fund investment decision-making mechanism arrangement; (III) fund expansion, grading arrangement, pledge and other guarantee arrangements (if any); (IV) the invested enterprise to pay dividends to the fund (if any); (V) the convening mechanism, contents of proceedings and voting methods of shareholders' meetings, partners' meetings or fund share holders' meetings; (VI) other contents required by the CSRC and the association. The real estate private equity investment fund contract invested in a single project shall also clearly stipulate the investment target, investment structure, etc. Associated Transaction Rules Where a real estate private equity investment fund conducts related transactions, the manager shall prevent conflicts of interest, establish an effective related transaction and risk control mechanism, and clearly stipulate in the fund contract the prior and in-process information disclosure arrangements involving related transactions, as well as special decision-making mechanisms and avoidance arrangements for related transactions. The above-mentioned related party transactions refer to the transactions between the real estate private investment fund and the manager, the senior executives of the manager, investors, other private investment funds managed by the manager, private investment funds managed by other managers controlled by the same actual controller, or related parties with other significant interests of the above-mentioned subjects. The manager shall not conceal the related relationship or make the related transaction non-related, and shall not use the property of the private investment fund to transfer benefits to the related party and other illegal activities. Clarify the leverage rules for real estate private equity funds. The manager may, in the light of the actual business situation, set a reasonable leverage ratio for the real estate private investment fund, but shall not use the hierarchical arrangement to protect the capital and income in disguise. The total assets of a real estate private investment fund shall not exceed 200 per cent of its net assets. The regulatory principles and requirements of the management behavior of the manager. The manager shall be diligent and responsible, and effectively control the risks of real estate private equity investment funds by supervising the flow of funds and effectively playing the role of shareholders, and shall not have the following behaviors: (1) The manager uses the fund property to provide guarantees for entities other than the fund and the invested enterprise, Damage the rights and interests of investors; (II) managers use private equity fund property to directly or indirectly invest in private equity fund managers, controlling shareholders, actual controllers and enterprises or projects under their actual control; (III) other circumstances prohibited by the CSRC and the Association. Special Risk Disclosure Rules The manager shall disclose the special risks of the real estate private equity investment fund to investors in the "special risk disclosure" part of the collection and promotion materials and the risk disclosure book, and disclose in detail the basic information such as the investment scope and investment mode of the fund. If a real estate private equity investment fund involves other special risks or business arrangements such as related transactions, single investment targets, hierarchical arrangements, pledges, shareholder loans, loans, investment targets through special purpose vehicles, equity holdings of contractual private equity fund managers, etc., it shall be disclosed together in the "special risk disclosure" section of the risk disclosure statement. Application procedures and material requirements for the pilot of real estate private investment fund managers. The manager shall submit the following information and materials to the association before carrying out business activities such as raising and managing real estate private investment funds: (I) the raising plan and investment operation plan of the real estate private equity investment fund to be established; Proof of the suitability of the main contributors and actual controllers of the (II) manager; Proof of paid-in capital of the (III) manager; Proof of (IV) real estate investment management scale; Information on senior management personnel and employees related to (V) real estate investment business; (VI) legal compliance and integrity; (VII) other information and materials required by the CSRC and the Association. Filing procedures and material requirements for the pilot real estate private investment fund manager. The manager shall submit the following basic information and materials to the association within 20 working days after the completion of the real estate private investment fund raising, and go through the filing procedures: (I) private equity contracts; (II) Fund Custody Agreement; (III) fund prospectus; (IV) risk disclosure statements and investor suitability related documents; Proof of (V) the paid-in funds raised; (VI) underlying investment agreements, investment framework agreements or specific investment programmes (if applicable); (VII) the state-owned land use certificate, construction land planning permit, construction project planning permit, construction project construction permit, presale permit that the project company has obtained, as well as the supporting documents proving the progress of the main construction project of the project (if applicable); Other information and materials requested by the (VIII) Association. Special rules for disclosure of information After the establishment of a real estate private investment fund, the manager shall produce a quarterly real estate fund property management report and disclose it to investors, which shall contain at least the following: The opening of the special account for the property of the (I) fund; (II) fund property investment management, operation, disposition and income; The operation of the project in which the (III) invests in the real estate subject; changes in (IV) investment managers or key persons; Description of major changes in the use of (V) fund assets; (VI) of the circumstances involving major litigation or damage to the fund property or the interests of investors; A description of the (VII) involving connected transactions, pledges, shareholder loans, loans, etc; (VIII) other contents stipulated in the fund contract; Other content required by the (IX) Association. Information submission requirements The manager shall report the operation of the real estate private investment fund to the association on a quarterly basis, and report the overall operation of the real estate private investment fund to the association at the end of the year. Scope of application and time of implementation 1. For real estate private equity investment funds, if they are not provided for in these Guidelines, they shall be implemented in accordance with the requirements of private equity fund managers and private equity funds. Managers who do not participate in the pilot program do not apply these guidelines and can carry out equity investment businesses such as affordable housing, commercial real estate, and infrastructure in accordance with the current self-discipline rules of the association. 2. These Guidelines shall come into force on March 1, 2023.
2023-02-25
25
2023-02
Recently, the "Law Firm Excellent Brand Influence Guide (2022)" and "Law Society 2022 Law Firm Brand Excellent Case" were officially released, and Shandong Zhongcheng Qingtai Law Firm was selected as the "Law Firm Excellent Brand Influence Guide (2022)". Based on brand recognition, brand ecology, brand activity, brand evaluation, and focusing on the content of brand building and the effect of communication influence, the Law News Agency Research Center analyzed 500 brand building cases and submitted them to relevant experts for observation, and selected six awards of "Law News Agency 2022 Outstanding Brand Cases of Law Firm. Among them, the case of "Zhongcheng Qingtai Lawyers Orchestra" won the "Cultural Brand Influence Award" for the excellent case of law firm brand in 2022 ". The "Cultural Brand Influence Award" is mainly aimed at promoting the construction of high-quality culture in law firms, enhancing internal cohesion and external attractiveness, and typical cases with brand influence. Since its establishment, Zhongcheng Qingtai Lawyers Orchestra has participated in many public welfare activities and performances, and has been invited by Shandong TV Station to perform. At the same time, the orchestra has filmed the MV "Prose Poems of Zhongcheng Qingtai", which promotes the culture of Zhongcheng Qingtai Law Firm. Zhongcheng Qingtai Lawyers Orchestra will launch its second MV this year. Please look forward to it. In the future, the orchestra will continue to carry out activities around party building, public welfare, and law firm brand building to enhance the firm's internal cohesion and external attractiveness, and continue to spread positive energy.
2023-02-25
24
2023-02
In order to regulate the behavior of various subjects in the field of construction engineering in Shandong Province, the Department of Housing and Urban-Rural Development of Shandong Province issued the ''Administrative Penalty Discretion Bench'' of the Department of Housing and Urban-Rural Development of Shandong Province., Within the scope of the types and ranges of administrative penalties stipulated by laws and regulations, depending on the severity of the violations and the impact of the consequences, reasonably divide different levels of illegal situations, determine specific administrative penalty standards. The first two articles mainly describe the risks of administrative penalties that may be involved in the construction qualification, subcontracting, construction standards, etc. that "construction enterprises" pay attention to in the production and operation activities in the field of construction engineering: 1. construction enterprises do not take measures to eliminate the hidden dangers of construction safety accidents 2. the construction unit has not established a safety production management organization, equipped with full-time safety production management personnel, or has no full-time safety production management personnel on-site supervision during the construction of partial projects. The main person in charge, project leader, full-time safety production management personnel, operation personnel or special operation personnel of the 3. construction unit shall engage in relevant work without safety education and training or unqualified assessment. 4. The construction unit fails to set up obvious safety warning signs at the dangerous parts of the construction site, or fails to set up fire-fighting passages, fire-fighting water sources, fire-fighting facilities and fire-fighting equipment at the construction site in accordance with relevant national regulations. 5. The construction unit fails to provide safety protection equipment and safety protection clothing to the operators. 6. The construction unit shall use the technology, equipment and materials that endanger the construction safety that are eliminated or prohibited by the state. 7. the construction unit did not make a detailed description of the technical requirements for safe construction before construction. 8. the construction unit fails to take corresponding safety construction measures at the construction site according to different construction stages and changes in the surrounding environment, seasons and climate, or fails to implement closed enclosure at the construction site of the construction project in the urban area 9. The temporary buildings erected by the construction unit at the construction site do not meet the requirements for safe use 10. The construction unit fails to take special protective measures for adjacent buildings, structures and underground pipelines that may be damaged due to the construction of the construction project. Eleven, the construction unit safety protection equipment, mechanical equipment, construction machines and accessories before entering the construction site without inspection or inspection unqualified that put into use Twelve, the construction unit in the construction organization design did not prepare safety technical measures, construction site temporary electricity plan or special construction plan Thirteen, the construction unit to obtain the qualification certificate, reduce the safety production conditions Fourteen, the construction unit to obtain the safety production license to reduce the safety production conditions Fifteen, construction enterprises did not set up safety production management institutions in accordance with the provisions; Not in accordance with the provisions of full-time safety production management personnel; More dangerous parts of the project construction did not arrange full-time safety production management personnel on-site supervision; "safety management personnel" did not obtain the safety production assessment certificate and other illegal acts 16. Decoration and decoration enterprises violate the relevant national safety production regulations and safety production technical regulations, fail to take necessary safety protection and fire protection measures in accordance with the regulations, use open flame operations and carry out welding operations without authorization, or fail to take measures to eliminate the hidden dangers of construction safety accidents.
2023-02-24
22
2023-02
22
2023-02
On the afternoon of February 20th, lawyer Sun Hanchuan, a senior partner of Zhongcheng Qingtai (Jinan) Law Firm, was invited to Shandong Mingshui Guocai Development Group Co., Ltd. (hereinafter referred to as "Guocai Development Group") to give a legal lecture with the theme: "Enterprise Legal liability and typical cases of fire accidents". The deputy general manager in charge of safety and the heads of various departments of CDB Development Group, the heads of Shuangchuang Base under CDB Development Group, the transformation and development demonstration park for small and medium-sized enterprises, the Sino-Italian high-end frontier industrial park, Jidong Zhizao New Town, Fenghuangshan Industrial Park, Diao Town SME Entrepreneurship Innovation Park, and Jinan (Mingshui) Automobile Manufacturing Industrial Park attended the lecture. According to relevant laws such as the Fire Protection Law, the Safety Production Law, the Criminal Law, and the Civil Code, lawyer Sun Hanchuan focuses on the legal responsibilities and typical cases of corporate fire accidents and safety production accidents, combined with his own experience in various accident handling, insurance claims, and emergency management., Fire rescue and other legal services for nearly 30 years, this paper introduces the elements, grade classification, investigation and identification, review and legal liability of fire accidents, focusing on the general situation, causes and legal liability investigation of the April 15 major fire poisoning case of a pharmaceutical company in Jinan in 2019, the January 10 major explosion accident of a gold mine in Qixia in 2021, and the July 24 major fire accident of a wedding dress dream city in Changchun, Jilin in 2021, it fully reveals the root causes of the accident and the seriousness of the legal consequences. In this lecture, senior and authoritative fire protection experts were invited to give lectures on fire protection management in industrial parks. After the meeting, the participants said that the lecture was profound and simple, vivid, close to reality, focused and benefited a lot. The accident lessons in the typical cases deeply analyzed were quite profound and worth pondering and learning. This lecture enhanced everyone's awareness of safety production law and fire safety responsibility, and improved everyone's safety production management level. China Development Development Group is located in Zhangqiu District, Jinan City, with total assets of 15.6 billion yuan. It is a platform company based on the construction, operation, management, service and municipal supporting facilities of the industrial park, integrating financial investment and trade diversification.
2023-02-22
21
2023-02
On February 17, 023, the inaugural meeting of 16 special committees of the Seventh Shandong Provincial Committee of Zhigong Party, Shandong Zhigong Painting and Calligraphy Institute, Zhigong Art Troupe, Digital Development Research Institute and High Quality Development Research Institute was held in Jinan. Wang Guiying, vice governor of Shandong Provincial People's government and chairman of Shandong Provincial Committee of Zhigong party, attended the meeting and delivered a speech. Lawyer Yin Yanbo, senior partner of Zhongcheng Qingtai (Jinan) Law Firm, was invited to participate in the second (enlarged) meeting of the 7th Shandong Provincial Committee of China Zhi Gong Party, and served as the Shandong Provincial Committee of Zhi Gong Party at the inaugural meeting of the Zhi Gong Party Special Committee Deputy Director of the Legal Committee. (The first on the left is lawyer Yin Yanbo) Chairman Wang Guiying put forward three hopes and requirements for performing the functions of specialized work agencies and giving full play to the role of members: First, we must strengthen our beliefs and effectively build a solid ideological foundation. Persist in using Xi Jinping's thoughts on socialism with Chinese characteristics in the new era to cast the soul, thoroughly study and implement the spirit of the 20th National Congress of the Communist Party of China, always adhere to the leadership of the Communist Party of China, adhere to the path of socialism with Chinese characteristics, and deeply understand the decisive significance of the "two establishments" and strengthen "Four consciousnesses", firm "four self-confidence", and achieve "two safeguards". Second, we must deepen our understanding and accurately grasp the nature of positioning. As "the party in action and the think tank of platform", the special working organization is a "big classroom" for building consensus, a "reservoir" for personnel training, and a "big stage" for performing their duties and participating in politics ". Third, we must focus on the overall situation of the center and continuously improve the effectiveness of performance of duties. It is necessary to focus on the primary task of high-quality development in our province, implement the work requirements of the provincial committee for the "three ones" of special work institutions, give full play to their professional advantages, perform their duties, and actively perform their duties and participate in politics. strive to serve the society, and contribute to the wisdom and strength of the public to the "Shandong practice" of Chinese-style modernization! After the meeting, lawyer Yin Yanbo said that it is the responsibility to be appointed as the deputy director of the Law Committee. The next step will be to combine the lawyer's own work and use the platform of the Seventh Shandong Provincial Committee of Zhi Gong Dang to make more contributions to the country and society.
2023-02-21
21
2023-02
Basic case In 2021, the insured (application executor) company a enforced a case due to a private loan dispute with the executed person Guo mou. during the execution process, the outsider Cao mou claimed ownership of the property and garage located in a residential area of wenshang county under the name of the executed person Guo mou and filed an objection to the execution, resulting in the suspension of the execution of the case. on June 2, 2021, the insured (application executor) company a applied to the court for continued execution, and purchase continuing liability insurance from the insurance company. In the case of Cao's objection to the execution of the application, the court made a civil judgment on September 10, 2021, and the house involved in the case was not allowed to be executed. The intermediate court made a final judgment to reject the appeal and uphold the original judgment. On September 2, 2021, the court made an enforcement ruling that the ownership of the property in question under Guo's name belonged to the buyer, Fan. The ownership of the property involved is irreversible. Cao sued the court and requested the insurance company and the executor to compensate for his losses. Court decision results Defendant A Company shall compensate Cao for the loss of XX yuan within 10 days after the judgment comes into effect. The defendant's insurance company shall be liable to Cao for the debts determined in the first item of this judgment, within the scope of XX yuan for the part that cannot be performed in the legal enforcement of the property of defendant a company. Referee Points 1. In this case, Cao raised an objection to the execution of the property involved. During the trial of the outsider's execution of the objection, after Company A insured with a qualified insurance company, the insurance company issued a policy guarantee to the court, and the court continued to execute the property involved in the case in accordance with the law, and the property involved in the case has now been executed. According to the final judgment of the outsider's execution of the objection, Company A applied to continue to execute the house mistake involved in the case. Company A requested the court to continue to execute the mistake and caused losses to Cao, and should be liable for compensation for Cao's losses. 2. Judging from the guarantee letter of the continued execution of the liability insurance policy issued by the insurance company and the compensation conditions specified in the policy, the insurance company shall judge the economic compensation liability of the insured in the people's court for the loss of the continued execution error in accordance with the law. If the insured fails to make compensation, the insurance company shall be liable for compensation within the compensation limit according to the agreement of the insurance contract. Legal basis The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation of Several Issues in the Implementation Procedure Article 16 During the trial of a lawsuit against an outsider's objection to execution, the people's court shall not punish the subject matter of execution. Where the executor of the application requests the people's court to continue the execution and provide a corresponding guarantee, the people's court may grant permission. If an outsider requests the lifting of the seizure, seizure or freezing, or if there is an error in the application for execution, causing losses to the other party, compensation shall be made. Lawyer's opinion The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Extended reading Litigation property preservation liability insurance means that the applicant signs an insurance product contract with the insurance company (insurer), and the insurance company uses the insurance product as collateral to guarantee the property preservation behavior of the litigant (insured). When the insured applies for error and should bear the economic compensation liability according to law, the insurer shall be responsible for compensation or advance payment according to the agreed compensation limit, Then realize the purpose of litigation preservation guarantee. Continued enforcement liability insurance is an insurance that specifically provides service protection for the executor in an enforcement case to continue to enforce the liability. The applicant for enforcement shall provide a policy guarantee issued by an insurance company approved by the court, and after examination by the court, the outsider shall continue to dispose of the property without suspending the execution procedure at the same time as the execution objection or the execution objection, so as to ensure that the legitimate rights and interests of the parties are fulfilled in a timely manner. The insurance is a new type of insurance, which was first born in Beijing Haidian Court on May 24, 2019. This is Beijing's first and the first insurance industry to prevent delays in the implementation of judicial liability insurance products. Litigation property preservation liability insurance and continued execution liability insurance are both an insurance contract signed between the policyholder and the insurance company, and then the two sides establish an insurance contract relationship. They are insurance companies to the court to provide policies or letters of guarantee as proof of security, from the form of the policy guarantee, with some of the characteristics of the guarantee guarantee, but in essence is not a guarantee guarantee relationship. First, the insurer does not appear as a guarantor, and the nature of the insurance policy guarantee payment expenses belongs to insurance claims; second, the insurance contract of this kind of insurance generally has a large number of exemption clauses, which conflict with the promise of unconditional liability in the insurance policy guarantee and do not meet the basic requirements of guarantee guarantee; third, if the insurance policy guarantee is regarded as the guarantee provided by the insurance company, however, if the guarantee does not comply with the current law, because according to the law, the provision of the guarantee requires the authorization or resolution of the shareholders' meeting or the board of directors, but in reality, there are no relevant documents authorized or resolved by the shareholders' meeting or the board of directors in the relevant cases. The insurance liability of litigation property preservation liability insurance is that during the insurance period, if the respondent suffers losses due to the wrong application of the insured's litigation property preservation, the compensation liability borne by the insured according to the judgment of the court shall satisfy at the same time: 1. The property preservation respondent has indeed suffered losses; 2. There is a causal relationship between the loss of the property preservation respondent and the error of the insured's litigation preservation application; 3. The loss of the property preservation respondent was confirmed by the court judgment in force to confirm the specific amount of the loss. In this case, the insurer is responsible for compensation in accordance with the insurance contract. The insurance liability for the continued execution of liability insurance is that during the insurance period, due to the insured's error in requesting the people's court to continue the execution, causing losses to the person subject to execution, interested parties or outsiders, the people's court shall be in accordance with the People's Republic of China laws (excluding Hong Kong, Macao and Taiwan Regional laws, the same below) determine that the insured shall bear the economic compensation liability, and the insurer shall be responsible for compensation in accordance with the insurance contract. Continued enforcement of liability insurance In the policy guarantee submitted to the court, it is further clarified that the insurance liability is that during the enforcement process, the objector files an objection to the enforcement of the subject matter, resulting in the suspension of the enforcement. The insured applies to the people's court for continued enforcement and requests The people's court continues to execute the subject matter. If there is an error in the insured's request to the people's court to continue execution, causing losses to the objector, if the people's court decides in accordance with the law that the insured shall bear the economic compensation liability and the insured fails to pay compensation, the insurer shall be responsible for compensation in accordance with the insurance contract. Litigation property preservation liability insurance liability is based on the principle of attribution of fault liability of the insured, that is, the insurer's liability needs to have at the same time the subjective fault of the insured, the illegality of the insured's behavior, the existence of the fact of damage, the insured's illegal behavior and the damage consequences of the causal relationship between the four constituent elements. In practice, the case of the court after searching shows that the compensation for the liability of property preservation in litigation is based on the causal relationship between the insured's preservation behavior and the loss and the subjective intention or gross negligence of the insured to the property preservation as the elements and premise of the insurer's liability for damages. In the course of litigation, the parties submit an application for property preservation in accordance with the provisions of the Civil procedure Law, which is a manifestation of exercising their litigation rights granted by the law. It is not appropriate to simply judge whether the application is wrong on the basis of the final trial result of the case. The key is to see whether the insured has fulfilled the reasonable duty of care and whether the litigation request filed by the insured is legal and reasonable. The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Because the continued implementation of liability insurance is a new type of liability insurance, the time is short, the judicial jurisprudence is also very few, therefore, the liability insurance liability preconditions should be based on the principle of fault liability attribution, there is a lot of controversy, to be further discussed with the increase in the number of cases.</中华人民共和国民事诉讼法>
2023-02-21
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
