06
2022-12
Foreword In the export declaration, export enterprises should fill in the export declaration form according to the actual situation, but in reality there are a large number of export declaration is not true, and even some export enterprises will export tax rebate rate of 0 goods declared as export tax rebate rate of 13% of the goods. If the export declaration is not true and causes negative effects, the export enterprise will face the legal risk of customs administrative punishment and serious criminal risk. Through this paper, the author combs the legal risks of false declaration and negative impact of export declaration, in order to have some enlightenment to readers. Legal Risks of 1. Customs Administrative Penalties Article 15 of the regulations on the implementation of administrative penalties of the the People's Republic of China Customs, if the name, tariff number, quantity, specification, price, mode of trade, origin, place of departure, place of arrival, final destination or other items that should be declared are not declared or declared falsely, they shall be punished in accordance with the following provisions respectively. If there are any illegal gains, the illegal gains shall be confiscated: (1) those affecting the accuracy of customs statistics, give a warning or impose a fine of not less than 1000 yuan and not more than 10000 yuan; (II) affect the order of customs supervision, give a warning or impose a fine of not less than 1000 yuan and not more than 30000 yuan; (III) affect the management of national licenses, impose a fine of not less than 5% and not more than 30% of the value of the goods; If the (IV) affects the collection of national taxes, a fine of not less than 30% and not more than 2 times the tax shall be imposed; (V) affecting the national foreign exchange and export tax refund, A fine of 10% to 50% of the declared price. Here, we need to focus on the legal risks brought about by the administrative penalties stipulated in the fourth and fifth paragraphs of Article 15. From a practical point of view, the Customs has imposed more administrative penalties in accordance with Article 15, paragraph 5. The main reason is that it is difficult for the Customs to find out the amount of tax missed and often requires the cooperation of the tax authorities. It is much easier for customs to find out the declared price than to find out the amount of tax missed. As a result, in such cases, customs often impose administrative penalties in accordance with the provisions of article 15, paragraph 5. Legal Risks of Administrative Penalties by 2. Tax Authorities Article 64 of the the People's Republic of China Tax Collection and Administration Law of the People's Republic of China. If a taxpayer or withholding agent fabricates a false tax calculation basis, the tax authority shall order it to make corrections within a time limit and impose a fine of less than 50,000 yuan. If a taxpayer fails to file a tax return and fails to pay or underpays the tax payable, the tax authorities shall recover the tax or late fee not paid or underpaid, and impose a fine of not less than 50% but not more than five times the tax not paid or underpaid. In fact, the export tax rebate of export enterprises is the responsibility of the competent tax authorities. If the export enterprise fails to fill in the customs declaration form according to the actual situation, resulting in non-payment or underpayment of tax payable, the competent tax authorities will generally impose administrative penalties in accordance with the provisions of Article 64 of the the People's Republic of China Tax Collection and Administration Law, and in serious cases, the case may be transferred to the economic investigation department for criminal responsibility. 3. criminal legal risk Article 204 of the the People's Republic of China Criminal Law. Whoever defrauds the state of export tax refunds by false export reports or other deceptive means shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than one time but not more than five times the amount of tax fraudulently obtained; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and not more than five times the fine; if the amount is especially huge or other especially serious circumstances are involved, the offender shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than one but not more than five times the amount of tax fraudulently obtained or confiscation of property. A taxpayer who, after paying the tax, fraudulently obtains the tax paid by means of deception as provided in the preceding paragraph shall be convicted and punished in accordance with the provisions of Article 201 of this Law; the portion of the tax fraudulently exceeding the tax paid shall be punished in accordance with the provisions of the preceding paragraph. Article 153 of the the People's Republic of China Criminal Law Whoever smuggles goods and articles other than those specified in Articles 151, 152 and 347 of this Law shall be punished according to the seriousness of the circumstances in accordance with the following provisions: (1) Whoever smuggles goods and articles with a large amount of tax payable or smuggles again after being given two administrative penalties for smuggling within one year shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and impose a fine of not less than one time but not more than five times the amount of tax due for evasion. Any (II) who smuggles goods or articles and evades a huge amount of tax payable or has other serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years, and shall also be fined not less than one time but not more than five times the amount of tax payable. (III) who smuggle goods or articles into which the tax payable for evasion is particularly large or where other particularly serious circumstances are involved shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and a fine of not less than one time but not more than five times the tax payable for evasion or confiscation of property. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than 10 years. For repeated smuggling without processing, according to the cumulative amount of smuggled goods and articles evaded tax penalties. In judicial practice, judicial organs often investigate the crime of fraudulently obtaining export tax rebates or smuggling in accordance with the provisions of Article 204 or Article 153 of the the People's Republic of China Criminal Law. Concluding remarks In the face of the above risks of false declaration of export declaration, export enterprises should fill in the export declaration form according to the facts, and if necessary, entrust professional customs declaration agencies or lawyers and other professionals to make customs declaration.
2022-12-06
06
2022-12
The right of access to an individual creditor in insolvency proceedings is not a statutory independent right, but a way for creditors to exercise their right to know. The creditor's right to know is divided into two main categories, one for the general right to know, one for the special right to know. The former is the right created by the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the Enterprise Bankruptcy Law) and other relevant laws for the common interests of all creditors. It is mainly exercised collectively through creditors' meetings, creditors' committees, etc. The realization of creditors' general right to know is mainly realized by the courts and managers in the process of performing their duties, actively disclosing relevant information to creditors, and generally does not require creditors to apply voluntarily, the special right to know, on the other hand, is a right created for an individual creditor and is generally exercised by an individual creditor on its own initiative, without being dependent on the creditor as a whole. The creation of the special right to know gives the initiative to protect the rights and interests of individual creditors, while the exercise of rights by individual creditors directly affects the protection of the rights of other creditors and debtors. Presentation of 1. issues The Enterprise Bankruptcy Law, as a law that combines procedural law and substantive law, is of great significance in regulating bankruptcy proceedings, paying off claims and debts fairly, and safeguarding the legitimate rights and interests of creditors and debtors. The Enterprise Bankruptcy Law has both the protection of the interests of creditors and the protection of the interests of debtors. However, in the case of the debtor's bankruptcy, there is also uncertainty about the amount and time of settlement of the creditor's claim, which makes it more difficult for the already opposing creditors and debtors to cooperate with each other in the case of the debtor's bankruptcy to achieve the purpose of fair settlement of claims and saving the enterprise. In practice, creditors often, in order to avoid the "evasion of debts" of bankrupt enterprises, often to protect their right to know, to the bankrupt enterprise administrator, the court to disclose all the information of bankruptcy proceedings. This requirement of creditors will undoubtedly bring great pressure to the work of the administrator of the bankrupt enterprise. If the creditor's right to know is not maintained, the administrator will face the risk of performing his duties. Then defining the exercise of individual creditors' right to know in bankruptcy proceedings can not only safeguard the legitimate rights and interests of other creditors, but also protect the rights and interests of debtors, but also give the administrator to do a good job of performance risk prevention. 2. creditors special right to know the main legal search. Through the search of legal provisions, the scope of the creditor's special right to know is mainly to consult the creditor's rights form, the creditor's rights register, the claim declaration material, the debtor's property status report, the creditor's meeting resolution, the creditor committee resolution, the administrator's supervision report and other financial and business information required to participate in the bankruptcy proceedings. The constituent elements and limiting elements of the exercise of the special right to know of 3. creditors. Since the protection of the special right to know does not fall within the scope of the people's court's acceptance of a civil case, the public judgment document does not have the relevant creditor's special right to know litigation. By combing through the legal provisions and typical cases of bankruptcy cases, combined with the author's experience in handling bankruptcy cases, the exercise of the creditor's special right to know needs to meet the following conditions, but also needs certain restrictions, so as to balance the protection of the rights and interests of individual creditors, other creditors and debtors. The Constitutive Elements of the Exercise of Special Right to Know in (I) 1. The subject of the inspection has the appropriate identity of a real creditor. The right to know is the right of creditors in bankruptcy proceedings and should be protected. However, there is a different understanding of whether the creditor here is a creditor who declares his claim in accordance with the law or a creditor who has been verified by the administrator, the creditors' meeting and the court ruling. I prefer the latter. In bankruptcy practice, the first-hand creditor information obtained by the administrator is the creditor's rights list provided by the debtor. Based on the time pressure of notifying the creditor to declare the creditor's rights (notifying the known creditor within 25 days from the date of accepting the bankruptcy application), the administrator generally sends the creditor's rights declaration documents directly to the creditor according to the creditor's rights list provided by the debtor without checking the creditor's rights list. However, there are often reasons such as the elimination of creditor's rights due to bookkeeping errors and the elimination of creditor's rights due to the limitation of action. The creditor in the creditor's rights list does not have the real creditor identity. At this time, if the debtor's financial and business information is provided to the "actual creditor" who no longer has the actual creditor-debt relationship, the relevant information will be leaked, undoubtedly damaging the legitimate rights and interests of the real creditor and the debtor. 2. Access should be limited to the financial and business information of the debtor involved in the insolvency proceedings. The Enterprise Bankruptcy Law III provides that individual creditors have the right to access the debtor's financial and business information necessary to participate in the insolvency proceedings, such as the debtor's property status report, the resolution of the creditors' meeting, the resolution of the creditors' committee, the administrator's supervision report, etc. If the administrator refuses to provide it without justifiable reasons, the creditor may request the people's court to make a decision; the people's court shall make a decision within five days. The scope of access to individual creditors is clearly defined in the Enterprise Bankruptcy Law III, which is limited to financial and operational information relating to insolvency proceedings. 3. The purpose of access is legitimate and should be applied to the administrator, and the administrator should provide access to the information in accordance with the law. In practice, the reason for individual creditors to apply for access to information is generally to verify the creditor's rights, but it does not rule out that there is a contradiction between individual creditors and debtors in the process of creditor's rights settlement, or because creditors who have entered the enforcement procedure want to find out the reasons for the defects of the bankruptcy procedure because the debtor enters the bankruptcy procedure. In this regard, the manager should strictly review its application materials, communicate with it for the purpose and scope of inspection, and see if there are any materials involving commercial secrets and not within its scope of inspection. If so, a confidentiality agreement should be signed, and the inspection site should also be attended by the manager. Restrictive elements of the exercise of the special right to know in (II) 1. Scope limitations. The scope of the individual creditor's application for inspection shall be limited to the scope of the materials taken over by the administrator. The manager takes over the company's materials mainly include: the company's seal, licenses, financial information, personnel information, litigation information and other documents, movable property, real estate, intangible assets, etc. Sometimes the debtor's operation and management system is not very perfect, and there may be incomplete financial account books, personnel data, and incomplete contracts related to the daily operation of the enterprise. At this time, it is not possible to require the administrator to provide financial information and operation information for individual creditors in full accordance with the requirements of individual creditors. Therefore, the scope of individual creditors applying for inspection should be limited to the scope of materials taken over by the administrator. 2. Time and place restrictions. The realization of the creditor's special right to know mainly depends on the administrator to provide individual creditors with all kinds of materials they need. However, in practice, the work of the administrator is complicated, and the requirements of individual creditors undoubtedly increase the workload of the administrator, especially the need to provide matching information for creditors in accordance with their requirements. In order to facilitate the work of the administrator, the administrator may require creditors to provide information access to creditors at the administrator's office within a fixed working day during the administrator's working hours. 3. Restrictions on ways. In the "Enterprise Bankruptcy Law" and related legal provisions, the exercise of the special right to know is stipulated, that is, "inspection", which does not include "copy, extract". However, in the theoretical circle, there is another understanding of "access", that is, it should not be limited to the meaning of access, but should be interpreted from the purpose of "access" exercise should realize the right, allowing individual creditors to copy, volume (copy), photograph, scan, and by professional knowledge of lawyers, accountants, appraisers to assist creditors to access. In this regard, in the course of actual business operations, the administrator should consider the way of access to information materials in the light of the purpose of individual creditors and whether they are related to their claims, allowing access to the scope of materials and other factors. Information Protection in the Exercise of 4. Access Creditors' access to exercise rights in bankruptcy proceedings involves the protection of trade secrets and personal information. In practice, it is very important for the manager to balance the creditor's right to know, trade secrets and personal information protection. When the administrator allows creditors to inspect the exercise of rights, as long as it complies with the law and strictly performs the duties of the administrator in accordance with the law, the following measures may be taken: 1. Require the creditor's declaration to promise in writing that the interested party shall consult the information of its claim declaration. The administrator may adopt a clause expressly indicating on the claim return that allows the interested party to access the information of its filing materials, or it may allow the creditor to provide a separate written commitment document to allow the interested party to access it. 2. If it is required to consult the information of the operation, finance and major contracts of the bankrupt enterprise, if it involves trade secrets, the creditor shall sign a confidentiality agreement. 3. If state secrets are involved, in principle, the administrator may not grant permission, or inform the interested party to apply to the court, and the court decides whether to grant access. Obstacles and remedies for 5. access to exercise rights 1. Check the exercise obstacles. In practice, there is an objective situation in which a single creditor's access to the exercise is not possible or smooth. First, there is no material to consult due to the lack of information caused by the debtor or the failure to hand over to the manager due to complicated reasons such as illegal operation. Second, the manager cannot meet the inspection requirements in time due to heavy management work. Third, it may be due to investors' reasons, worrying that creditors' inspection will bring interest disputes to investors, affecting the progress of reorganization procedures and passively or neglecting to provide access information to creditors. 2. Access to exercise routes Access to exercise rights as a way to protect the right to know, creditors exercise does not have the right to sue, can not be litigation to request the court decision, can only apply to the administrator, if the administrator does not allow, the court review and decision.
2022-12-06
06
2022-12
The digital age has changed the mode of information dissemination. Convenient dissemination channels and low reproduction costs have greatly promoted the speed of information dissemination, and it has also become a nightmare for copyright owners. Although digitization enables copyright owners to reduce distribution costs and quickly send their works to hundreds of millions of audiences, creating a huge market. However, this way can also be used by infringing pirates. If the right holder protects his rights afterwards, the market may have been lost, so the copyright owner is more inclined to save himself-take technical protection measures. 1 What Are Technical Protection Measures in Copyright Law? There are no uniform provisions on the definition of technical protection measures. The World Intellectual Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performance and Recording Treaty (WPPT) adopted in 1996 have made special provisions on technical protection measures, which indicates that the provisions of technical protection measures have been recognized by the member states of the World Intellectual Property Organization. In accordance with article 11 of the WCT: "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technical measures used by authors for the purpose of exercising their rights under this Treaty or the Berne Convention to bind them to acts in respect of their works that are not licensed by the author concerned or permitted by law." The EU's definition of technical measures is: "According to its normal operation, it can be used to prevent or prohibit infringement of copyright or other legal rights related to copyright, or the European Parliament and Council Directive 96/9/EC Chapter 3 Any technology, equipment or part of the parts of the right." These translations are more mouthful. The Digital Millennium Copyright Act (DMCA) defines it as "any technology that effectively controls access to copyrighted works and effectively protects the rights of copyright owners. "The Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society adopted by the EU in 2001 is defined as" equipment, products or equipment, products or components combined with methods designed in the normal course of its operation to prevent or prevent infringement of copyright or copyright-related rights granted by law or special rights granted in the database directive ". Similarly, the translation is quite mouthful, only the general picture can be known. China revised the Copyright Law in October 2001 and incorporated technical measures into the copyright law system for the first time. However, it was not until 2006 that the Regulations on the Protection of the Right of Information Network Communication had further explanation on technical measures, but it was limited to the perspective of network communication and stipulated as "technical measures, it refers to the effective technology, device or component used to prevent or restrict the browsing and appreciation of works, performances, audio and video products without the permission of the right holder, or to provide works, performances, audio and video products to the public through the information network." Since the "Copyright Law" did not yet stipulate "audiovisual works" at that time, the expression of this provision seems to be relatively obscure and confusing, and it is limited to the scope of information network dissemination rights, and the true connotation of technical protection measures cannot be confirmed. The current "Copyright Law" stipulates that "without the permission of the copyright owner or the copyright-related right holder, deliberately avoiding or destroying technical measures, deliberately manufacturing, importing or providing others with devices or devices mainly used to avoid or destroy technical measures Components, or deliberately providing technical services for others to avoid or destroy technical measures, unless otherwise provided by laws and administrative regulations;" this provision also does not define the technical measures in the copyright law, but only divides them into three situations: one is that the actor deliberately avoids or destroys the technical measures and uses the copyright of others; the other is to provide material conditions to avoid destroying the technical measures; the third is to help others avoid or destroy the technical measures of technical services. Is it necessary to avoid infringement of technical protection measures? Let's analyze it. 2 Legitimate technical protection measures shall meet the following conditions The law protects the legal copyright and regulates the infringement, so that the license holder can take technical measures, but not all technical measures are licensed by the law, otherwise it will lead to the abuse of technical measures and hinder the dissemination of knowledge, and even produce monopoly to undermine the order of fair competition, thus deviating from the original intention of intellectual property protection. (I) protection measures must be consistent with the purpose of protecting legitimate copyright The purpose of protection measures is to protect legitimate copyright from infringement, so its purpose is only to protect the legitimate use of copyright, not to ban it all. There are many technical measures, such as software serial number, login dynamic password, firewall, security scanning, signature authentication and so on. Among these technical measures, only the technical measures taken to protect copyright from infringement are the technical measures regulated and protected by copyright law. Otherwise, it will enter the illegal category and can be ignored. The Supreme People's Court Guidance Case No. 48 can be used for reference. Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd. in the case of infringement of computer software copyright dispute. For Beijing Jingdiao Technology Co., Ltd. to realize the bundled sales of software and machines, the output data of software operation is set to a specific file format to restrict other competitors' machines from reading the data stored in the specific file format, thus extending its competitive advantage in software to the machine does not belong to the technical measures taken by the copyright owner to protect his software copyright as stipulated in the copyright law. If another person develops software to read the specific file format set by it, it does not constitute an infringement of computer software copyright. (II) protective measures must be effective The term "effective" here is relative and means that it is not easy to be avoided or cracked under normal circumstances, not that it is absolutely not avoided or cracked under any circumstances. However, if the threshold of technical measures is very low, needless to say, professionals, and even easy to be avoided or cracked by ordinary personnel, these measures obviously cannot achieve the purpose of protection, and the copyright owner is lazy to take effective protection measures. Although the copyright itself is protected, it cannot be questioned, but it cannot achieve effective protection of technical measures. It should be considered that it does not belong to the protection measures in the sense of copyright law. If it is dealt with in accordance with the destruction of technical protection measures, it is not suitable for law. (III) protection measures should not constitute a monopoly As mentioned earlier, the technical measures of legal protection are used to protect the copyright itself, not to exclude legitimate competition by means of protection. For example, the use of technical measures to bind software and hardware, and remote control, restrict users to modify or maintain, and charge high maintenance fees afterwards. Another example is that cross-regional sales are prohibited by attaching regional codes to products. Although there is controversy over this business model, if it is limited to internal sales network control, there is no need to intervene. However, if cross-regional use of products is prohibited, even if users directly "change bricks" after appropriate upgrading or modification, it has obviously violated the legitimate rights and interests of consumers and users and is inconsistent with the principle of "one-time sales exhaustion. (IV) protection measures must not conflict with fair use No matter what kind of protection measures are adopted, they shall not restrict the exercise of the right of fair use in the copyright law, that is, the thirteen exceptions stipulated in Article 24 of the copyright law. No remuneration may be paid to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and the normal use of the work shall not be affected, and the legitimate rights and interests of the copyright owner shall not be reasonably damaged. This is also the basis for the balance of monopoly rights and public interests granted by law to copyright owners. In short, copyright technology protection measures are a self-help protection method given by law to copyright owners, which can prevent the occurrence of large-scale infringement damage in advance and avoid the loss of rights protection afterwards. At the same time, however, it should be noted that intellectual property rights benefit from monopoly rights, and that rights holders tend to expand their boundaries when using the technical measures, tend to restrict competition, tend to restrict user behavior, and tend to constantly test the bottom line of the public interest. In judicial practice, we should strengthen the consideration of technical protection measures themselves and define their protection boundaries in order to achieve a balance between public and private interests, which not only promotes the spread of literature, science and art, but also protects the interests of creators.
2022-12-06
06
2022-12
In order to thoroughly study and implement the spirit of the 20th National Congress of the Communist Party of China and deeply understand Xi Jinping's thoughts on the rule of law, on December 1, lawyer Zhou Jiakui, deputy director of the Civil Committee of the Shandong Lawyers Association and deputy director of Zhongcheng Qingtai (Jinan) Law Firm, was invited to be Laiwu Vocational and Technical College gave a special lecture on "Xi Jinping's Thought on the Rule of Law. Kong Xiangmin, Secretary of the Party Committee of Laiwu Vocational and Technical College, President Xu Yunguo, Secretary of the Discipline Inspection Commission of Fu Ping, Zou Cuilan, Vice President Li Yunshi, other cadres and workers and Mao Yukun, lawyer of Zhongcheng Qingtai (Jinan) Law Firm, attended the lecture online. In this lecture, lawyer Zhou jiakui gave a comprehensive and detailed explanation of the essence of Xi Jinping's thought on the rule of law from the aspects of the formation process of Xi Jinping's thought on the rule of law, the key requirements of promoting the comprehensive rule of law, the in-depth implementation of Xi Jinping's thought on the rule of law, and the "voice of the rule of law" of the 20th CPC National Congress; this paper summarizes the methodology of implementing Xi Jinping's thought of the rule of law from the aspects of politics, people, systematicness and practicality, and explains in simple terms what is meant by people-centered and how to prevent administrative legal risks through the combination of theory and practice. This lecture provides strong scientific guidance for practicing the core concept and spiritual essence of Xi Jinping's thought of the rule of law, guiding the practice of the rule of law, administration according to law, and teaching according to law. After the meeting, the college appointed lawyer Zhou and lawyer Mao Yukun as part-time lecturers of the college's legal system course for a period of three years, and expected the two lawyers to continue to provide legal support to their college.
2022-12-06
05
2022-12
1. issues raised Housing expropriation is the act of expropriating and compensating the houses legally occupied and used by the expropriated person in accordance with the legal procedures and authority in the public interest. Carrying out the expropriation of houses on state-owned land is an important measure to accelerate the organic renewal of cities and promote the transformation of old cities and infrastructure construction. This work not only makes urban planning more reasonable but also helps to optimize the allocation of land resources. Article 17 of the "Regulations on Expropriation and Compensation of Houses on State-owned Land" and Article 21 of the "Measures for Expropriation and Compensation of Houses on State-owned Land in Jinan City" both stipulate that the subject of compensation for house expropriation is the expropriated person, and the scope of compensation includes (I) compensation for the value of the expropriated houses; (II) compensation for relocation and temporary resettlement caused by house expropriation; (III) compensation for the loss of suspension of production and business caused by house expropriation. In practice, it is very common for the expropriated person of non-residential houses to rent out the house to obtain income. In the case that the expropriated person and the lessee (the current user of the house) have not agreed on the resettlement compensation fee and still cannot reach an agreement at the time of house expropriation, how to allocate the above fees will have an important impact on the rights and interests of both parties. The Regulations on Expropriation and Compensation of Houses on State-owned Land do not have more detailed provisions on this, while the Regulations on Expropriation and Compensation of Houses on State-owned Land do 《<济南市国有土地上房屋征收与补偿办法>Item (II) of Article 31 of the Detailed Rules for Implementation stipulates that "if there is a dispute between the expropriated person and the current user of the expropriated house over the receipt of the relocation fee, temporary resettlement fee, compensation for losses caused by suspension of production or business, and relocation incentive fee, the parties concerned shall settle the dispute through consultation. If the negotiation fails and the current user of the house moves on schedule within the signing period, the house collection department may distribute the relocation fee to the current user, other payments will be temporarily kept by the housing collection department and will be handled according to the agreement after an agreement is reached." In judicial practice, how to judge the above-mentioned disputed fees? This paper intends to analyze the scope of compensation that the current user of the expropriated house can claim based on the lease contract through relevant cases. 2. Related Cases and Referee Views (I) removal fees, equipment removal fees shall be obtained by the actual payer or owner. Case 1: Re-trial of Disputes over Housing Lease Contracts in Chen Ping An and Chen Youxiang (Hubei Higher People's Court [2017] E Min Zai No. 217) Referee's view: on moving compensation. When the government expropriated the house involved in this case, the house was still within the lease term stipulated in the Lease Contract, and the government's expropriation caused the lessee Du Fang to transfer the relevant products and facilities used for the sale and operation of the front room, and thus incur moving expenses. Therefore, the government compensation of the moving compensation fee of 1000 yuan should be owned by Du Fang, the actual payer of the moving expenses. Since the above expenses have been received by Chen Pingan and Chen Youxiang, Chen Pingan and Chen Youxiang should return the moving compensation fee of 1000 yuan to Du Fang. About broadband migration fee, air conditioning migration fee. As a result of the government's expropriation of the housing involved in this case, the broadband and air conditioning in the house need to be relocated to other places and the relocation costs incurred, and the relevant relocation fees compensated by the government should be obtained by the owner of the broadband and air conditioning. According to Article 76 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", Du Fang's claim that he should obtain broadband transfer fees and air conditioning transfer fees cannot be established according to law because Du Fang did not submit relevant certificates for the installation of broadband and the purchase of air conditioners in the first, second and retrial. Broadband and air conditioner, as movable property and attachments in the house, shall be recognized as owned by Chen Pingan and Chen Youxiang, the owners of the house according to law. The broadband transfer fee of 360 yuan and the air conditioner transfer fee of 200 yuan compensated by the government shall be obtained by Chen Pingan and Chen Youxiang. The object of compensation for (II) temporary placement fee exists on the part of the expropriated or lessee and on the part of both parties to share three views of the decision. Case 2 (to the expropriated person): Zhang Fuyi, Yan Chengfang and other housing lease contract disputes (Xuzhou Intermediate People's Court of Jiangsu Province [2018] Su 03 Min Zhong No. 2234) Referee's point of view: with regard to the compensation fee of 43236 yuan for temporary resettlement advocated by Zhang Fuyi, Article 22 of the regulations on Housing expropriation and compensation on State-owned Land stipulates: "if the relocation is caused by the expropriation of houses, the housing expropriation department shall pay the relocation fee to the expropriated person; if the property right exchange is chosen, the housing expropriation department shall pay the expropriated person a temporary resettlement fee or provide a revolving house." Accordingly, the temporary resettlement compensation fee is a fee paid by the housing expropriation department to the expropriated person who chooses to exchange the property rights of the house. The fee has nothing to do with the lease behavior, and the lessee is not entitled to compensation for the fee. Therefore, the court does not support Zhang Fuyi's request. In the second instance of this case, the court held that the temporary resettlement compensation fee was the resettlement fee that should be obtained because the expropriated person chose to exchange property rights. Zhang Fuyi has applied for Yan Chengfang and Jiang Qing to refund the rent. Yan Chengfang and Jiang Qing no longer have the obligation to provide resettlement places. Zhang Fuyi's claim has no contractual and legal basis. Case 3 (owned by the lessee): Guangdong Yuchen Paint Co., Ltd. and Liang Lihua Housing Lease Contract Dispute (Guangdong Foshan Intermediate People's Court [2021] Yue 06 Min Zhong No. 7793) Referee's view: On the temporary placement fee. As Liang Lihua has obtained compensation for the right to use the land, his loss has been compensated to some extent. In this case, the compensation for the temporary resettlement fee given by the government demolition department is based on the fact that Yuchen Company is still operating on the demolished land at the time of the assessment on September 1, 2019, and the loss caused by the demolition can not continue to operate. The object of the compensation is the actual business entity, namely Yuchen Company, not Liang Lihua. Therefore, even if the lease term of Yuchen Company has expired when it actually moved out, Yuchen Company still has the right to request a temporary resettlement fee of 249495.48 yuan, which is supported by our hospital. Case 4 (shared by both parties): Ding Mingjun, Meng Xiangfeng and other housing lease contract disputes (Jinan Intermediate People's Court of Shandong Province [2022] Lu 01 Min Zhong No. 5473) Referee's view: On the temporary placement fee. According to the statement of the collection center, "the temporary resettlement fee is to make up for the cost of temporary transitional resettlement required by the housing owner for demolition". In this case, after the demolition of the house involved, the owner of the house and the actual user have the need for turnover resettlement during the transition period, resulting in the corresponding temporary resettlement expenses, so the owner of the house and the actual user should be compensated for the temporary resettlement fee. The court of first instance determined that the temporary resettlement fee was only compensated to Jiang Yakun, the actual user of the house, and did not fully consider the loss of resettlement expenses incurred by the house owner due to demolition, and the court corrected it. Considering the above situation in this case, the court supports Jiang Yakun, the actual user of the house, Ding Mingjun and Meng Xiangfeng, the owners of the house, to enjoy 50% of the temporary resettlement fee for the house involved. If the (III) parties do not agree or the agreement is unclear on the loss of production and suspension of business, it shall be determined on the basis of the term of the lease and the actual loss. Case 5: Dispute over Housing Lease Contracts between Dongying Wantai Petroleum Equipment Co., Ltd. and Xia Wei (Shandong Dongying Intermediate People's Court (2022) Lu 05 Min Zhong No. 1285) Referee's view: On the issue of loss of production and closure. The Court believes that because the lease term of the house involved has not yet expired, the demolition of the house will not allow Xia Wei to continue to operate, but also cause Wantai Company to be unable to collect the rent for the remaining lease term of the house involved, so Wantai Company also has a loss of suspension of production and business. The first-instance judgment decided that it was not improper for Xia Wei and Wantai to enjoy 50% of the compensation for this part of the loss. The premise of obtaining compensation for (IV) decoration expenses is that the behavior is approved by the lessor and the compensation amount shall not exceed the decoration compensation range determined in the relocation compensation. Case 6: Case of Retrial Review and Trial Supervision of Lease Contract Dispute between Guo Mou and Shanxi Guangjuyuan Coal Washing Co., Ltd. (Shanxi Higher People's Court [2020] Jin Minshen No. 450) Referee's point of view: on the decoration of the plant involved in the case. Guo signed a plant lease agreement with Guangjuyuan Company. The two parties did not agree on the decoration of the leased plant in the plant lease agreement, and the two parties did not reach an agreement afterwards. Therefore, how to deal with the renovation and loss of the plant involved should be handled in accordance with the provisions of the law and relevant judicial interpretations. In the counter-complaint, Guo admitted that Guangjuyuan Company hindered its renovation, and Guo did not submit evidence to prove that Guangjuyuan Company agreed to renovate the plant involved. According to the second paragraph of Article 223 of the the People's Republic of China Contract Law and Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban Housing Lease Contracts, the lessee shall bear the expenses incurred in the decoration of the leased property without the consent of the lessor. Guo Mou did not obtain the consent of Guangjuyuan Company for the decoration of the plant involved, it shall be at its own expense. Case 7: Qingdao xingda automobile sales co., ltd., Qingdao dahong special vehicle manufacturing co., ltd. and other housing lease contract disputes (Qingdao intermediate people's court of Shandong province [2022] Lu 02 min zong no 6004) Referee's point of view: Xingda Company sued Dahong Company to compensate for its decoration losses, but the loss was not caused by Dahong Company. The reason why Xingda Company could not continue to occupy and use the house involved was that the house was recovered by the government and was not subject to the subjective will of Dahong Company. Both parties clearly agreed not to bear any liability for breach of contract under such circumstances. Xingda Company can only obtain the corresponding compensation for the decoration part. Therefore, if Dahong Company is ordered to compensate for the decoration of Xingda Company beyond the scope of decoration compensation determined in the relocation compensation, it is against the principle of fairness and has no contract basis. Therefore, the court believes that it is not improper to determine the decoration loss claimed by xingda company in the first instance based on the (2020) green and yellow real estate appraisal report No. 2XXX property appraisal report made by Qingdao best land real estate appraisal consulting co., ltd. 3. Summary 1, on the collection of housing value, relocation fees and equipment relocation fees compensation subject is relatively clear. In practice, the value of the expropriated house mainly refers to the demolition compensation of the expropriated house and its appendages, which is obtained by the expropriated person, I .e. the owner of the house, and the lessee has no objection. The payment object of the relocation fee and the equipment relocation fee should be the actual payer of the relocation fee and the owner of the relocation equipment, respectively. 2. Regarding the temporary resettlement fee, the referee has different opinions in practice. The author prefers that the fee should be shared by both parties without clear agreement. There are two reasons: first, the second paragraph of Article 31 of the regulations on the Administration of Urban Housing demolition issued by the State Council stipulates: "during the transitional period, if the person to be demolished or the lessee arranges his own accommodation, the demolisher shall pay the temporary resettlement subsidy; if the demolished person or the house lessee uses the revolving house provided by the demolition person, the demolition person shall not pay the temporary resettlement subsidy." Although the regulation has been abolished, it clearly stipulates that the housing lessee is also the subsidy object of the temporary resettlement fee, which has certain guiding significance. Secondly, although Article 22 of the regulations on Housing expropriation and compensation on State-owned Land stipulates that if the house property right exchange is chosen, the housing expropriation department shall pay the expropriated person a temporary resettlement fee or provide a revolving house before the house is delivered. This is mainly because the compensation agreement is signed between the housing expropriation department and the expropriated person, and the fee should be paid to the expropriated person according to the relativity of the contract. However, it does not mean that there is no need for temporary resettlement after relocation due to demolition during the normal production and operation of the lessee (current user of the house) during the lease period. If the lessee has no right to claim the full compensation to the expropriated person, the time cost and additional expenses incurred by the lessee in finding a separate place for resettlement shall be borne by the lessee, which is detrimental to its legitimate rights and interests. 3. With regard to the loss of suspension of production and business, in the absence of an agreement between the two parties, it should not be limited to the compensation object stipulated in the demolition policy, but should be based on the actual losses caused by the demolition to both parties to the lease contract, combined with the remaining lease term, The actual business investment situation, the subject of business license and license rights and other factors shall be reasonably distributed. 4. With regard to the decoration expenses, the lessee claims to be compensated for the decoration expenses on the premise that the decoration and decoration behavior has been approved by the lessor in advance, and the amount of compensation shall not exceed the scope of decoration compensation determined in the relocation compensation. In addition, it should be noted that if the lessee's decoration is necessary for the production and operation of the industry, the above expenses can be appropriately compensated even without the consent of the lessor. 4. Risk Alert When leasing houses on state-owned land, the lessee shall clearly stipulate in the lease contract the rights and obligations of both parties after the expropriation, and try to avoid disputes over the distribution of compensation due to lack of agreement or unclear agreement. Secondly, during the lease period, the lessee should pay attention to the retention of raw materials, facilities and equipment purchase documents and production and operation related data, which is an important basis for claiming the loss of shutdown and relocation costs. Finally, at the time of expropriation, the lessee should actively communicate with the lessor and the housing expropriation department to understand the expropriation compensation policy and the progress of expropriation, and if the lessor deliberately fails to inform the resettlement compensation situation or is unable to obtain compensation fees from the lessor through negotiation, it can take litigation to safeguard its legitimate rights and interests.</济南市国有土地上房屋征收与补偿办法>
2022-12-05
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In order to establish and improve the guarantee mechanism for the planning, construction, management and use of supporting kindergartens in urban and rural residential areas, expand preschool education resources, and increase the popularization rate of preschool education, the State Council issued the ''Notice of the General Office of the State Council on Carrying out the Governance of Supporting Kindergartens in Urban Communities'' in 2019. Under the premise of strictly following the "the People's Republic of China Urban and Rural Planning Law" and "Urban Residential Area Planning and Design Standards, for the transformation of old urban areas (shantytowns), the development of new cities and the construction of residential areas, and the relocation of poverty alleviation and relocation, the supporting construction of kindergartens should be included in the public management and public service facilities construction planning. In the process of policy promotion, the property rights dispute of supporting kindergartens in urban and rural residential areas is a big problem. Therefore, in judicial practice, there are many disputes among the government, owners and developers on the ownership of the property rights of supporting kindergartens, which will be discussed one by one in this paper. 1. Status of Property Rights Transfer of Supporting Kindergartens in Urban and Rural Residential Areas in China According to Article 3, Item 2 of the "Notice of the General Office of the State Council on Carrying out the Management of Supporting Kindergartens in Urban Communities", rectification should be carried out one by one in accordance with the requirements of "one matter, one discussion" and "one garden, one case", and recycling, replacement, Purchase and other methods. After inquiring about the relevant regulations issued by various provinces and cities, this paper finds that the transfer of supporting kindergartens in residential areas is roughly divided into the following three situations: (I) transfer without compensation 1. The land transfer contract stipulates the transfer obligation of the construction subject and the ownership of property rights to the education administrative department, the government will offset the construction cost of the supporting kindergarten in the land transfer fee, and the construction subject will be transferred to the government after the completion of the supporting kindergarten. 2. If there is no relevant agreement in the land transfer contract, the construction subject is encouraged to hand over free of charge, and the construction area of the supporting kindergarten in the community is not included in the plot ratio accounting of the land to be supplied. 3. Although the land transfer contract does not stipulate that it must be transferred free of charge, the supporting kindergartens that belong to the construction of state-owned enterprises must be transferred free of charge. 4. Supporting kindergartens built on the allocated land shall be handed over free of charge after completion. (II) Paid Repurchase 1. There is no relevant agreement in the land transfer contract, and the supporting kindergartens built by the construction subject shall be repurchased by the government with compensation. For repurchase criteria, some provinces provide for reference to the results of land acquisition costs and construction costs audits. two.. The measures for the recovery and compensation of supporting kindergartens in urban and rural residential areas where the property rights belong to development and construction units and individuals shall be determined by the governments of various cities and counties (districts) in accordance with the local actual situation in accordance with the law and regulations. (III) determine whether handover is necessary after considering the actual situation Some provinces and municipalities make exceptions in view of special circumstances and do not necessarily require transfer (including the above-mentioned paid or free transfer). Shenyang City stipulated in the "Opinions on Strengthening the Construction and Management of Supporting Kindergartens in Urban Residential Communities in Our City": "For supporting kindergartens that have been used, if the land is supplied according to the allocation method, it shall be cleaned up in accordance with relevant policies, and the property rights unit, organizer or individual The supporting kindergartens in use are transferred to the local education department for management and use; the supporting kindergartens whose property rights have been privately owned shall not be used for other purposes." Nanchang City stipulates in the "Administrative Measures for the Planning, Construction and Use of Supporting Kindergartens in Urban Residential Districts in Nanchang City": "Before the implementation of these Measures, it was not agreed in the land transfer contract that the supporting kindergartens will be handed over to the government free of charge. Based on the principle of active, stable and differentiated treatment, the county (district) government adopts various methods to gradually clean up and recover within 2 years from the implementation of these Measures. Supporting kindergartens in residential communities whose property rights have been privately owned shall not be converted to other uses, and those that have been converted to other uses shall be rectified within a time limit within 6 months." The above-mentioned provisions, combined with the actual situation of supporting kindergartens in urban and rural residential areas, objectively confirm that the property rights of supporting kindergartens are not always transferred to government departments, but should be determined in combination with the land acquisition method, investment subject, construction cost allocation and other comprehensive factors of supporting kindergartens. If the property right has been privately owned, it is only required not to be used for other purposes. Cases 2. the Ownership of the Property Rights of Supporting Kindergartens in Urban and Rural Residential Areas and the Main Principles of the Referee The previous article describes the relevant policies of some provinces and cities in China on the transfer of property rights of supporting kindergartens in urban and rural residential areas. If the situation that needs to be transferred to the government free of charge is excluded, whether the property rights of supporting kindergartens are owned by developers or by all owners is currently not clearly stipulated in relevant laws and regulations in China. Therefore, there are different debates in judicial practice, and the judgments of the courts on the ownership of kindergartens in urban and rural residential areas are also different. (I) supports the case that the property right of the supporting kindergarten is owned by the developer. 1.(2016) Wan 01 Min Zhong No. 2278 Civil Judgment Summary of the decision: The court held that the kindergarten planned in the community involved in the case was independent in construction, could be used exclusively, and could be registered as the object of ownership of a particular subject. Therefore, the above-mentioned kindergarten belongs to the exclusive part of the "the People's Republic of China Property Law", and because the developer has agreed in the housing sales contract signed with the buyer that the above-mentioned housing construction not included in the allocation belongs to the seller, so the above-mentioned supporting kindergarten belongs to the developer. 2.(2017) Su 03 Min Zhong No. 1026 Civil Judgment The main point of the judgment: The court held that the kindergarten house involved in the case is not shared by all the owners of the community. The reasons are as follows: First, the kindergarten involved in the case does not belong to the legal common part. Article 73 of the the People's Republic of China Property Law stipulates: "The roads in the building area, It belongs to the owners, except for those that belong to urban public roads. The green space within the building division belongs to the owners, except for those that belong to the urban public green space or that expressly belong to individuals. Other public places, public facilities and property service houses within the building area belong to the owners." The planned use of the kindergarten involved in the case is a kindergarten. The kindergarten is a single building in the community. It has structural independence and utilization independence. It conforms to the characteristics of the exclusive part and is a legal exclusive part. Second, both parties agree that the kindergarten involved in the case is a public kindergarten, and it is not a public kindergarten that should be transferred to the education department according to national or local regulations. Third, the kindergarten involved in the case is not a common part of the agreement; fourth, the community industry committee involved in the case recognized the kindergarten housing department developer investment and construction, but did not provide sufficient evidence to prove that the cost of the kindergarten involved in the case was eventually spread into the development and construction costs of commercial housing, and constitute a component of the external sales price of commercial housing. And although the sales price of commercial housing is related to the development cost, it is not the decisive factor. The price of commercial housing is related to many factors such as the real estate market environment, the district location, and the developer's business model. Whether the construction cost of the kindergarten is amortized into the development cost of the community does not necessarily lead to changes in the sales price of commercial housing. To sum up, the court rejected the claims of the community industry committee. 3.(2017) Wan 05 Line Final 94 Administrative Judgment Summary of the judgment: the court held that according to the "the People's Republic of China Construction Project Planning permit" issued by the developer and the local county construction bureau, the certificate of unshared area, the description of the cost of separate accounting for kindergarten costs and other evidence materials, it is proved that the kindergarten involved in the case is a commercial house that is independently planned, independently constructed and exclusively usable, and should be recognized as the exclusive part stipulated in the the People's Republic of China property Law. In addition, the local county construction bureau required in the "Planning and Design Conditions" that "the community should consider setting up kindergartens, residents' fitness activity spaces or places, property management and security facilities, etc.", and did not specify that supporting kindergartens are public facilities or public places. Therefore, the appellant's appeal reason that the kindergarten should belong to the public facilities or public places in the community is not supported. Through the above cases, it can be seen that the court tends to have the property right of supporting kindergartens in urban and rural residential areas owned by developers. The argument mainly includes the following three aspects: first, supporting kindergartens in urban and rural residential areas are independent in construction, can be used exclusively, and can be registered as the object of ownership of specific owners, and it has been agreed in the housing sales contract that the housing buildings not included in the kindergarten shall be owned by developers. Second, whether the construction cost of the supporting kindergarten is amortized into the overall construction cost of the community; Third, the developer provides evidence such as proof that the kindergarten area is not apportioned and the cost is accounted for separately, proving that the supporting kindergarten is a commercial house that is independently planned, independently constructed and can be used exclusively. The (II) supports the case that the property right of the supporting kindergarten is shared by all the owners. 1.(2020) Wan 0102 Min Chu No. 7456 Civil Judgment Summary of the judgment: The court held that the community involved in the case was developed and constructed by Zhongxiang Company. According to Article 73 of the the People's Republic of China Property Law, other public places, public facilities and property service houses within the building area belong to the owners. The kindergarten in the community involved in the case belongs to the community supporting facilities, and its ownership shall be owned by all owners. 2.(2016) Lu 16 min zong No. 220 civil judgment Summary of the judgment: the court held that the developer and the owner signed a house purchase contract, but there was no agreement on the ownership of the supporting kindergarten. According to the planning and design drawings and functions of the community involved in the case, it can be determined that the supporting kindergarten is a single building independent of other buildings, and there is no separate "Land Use Certificate", "Construction Land Permit", "Construction Permit" and other related procedures. After completion, it has not been accepted by relevant departments. The developer cannot provide sufficient evidence to prove that it has separately accounted for the "investment" of the supporting kindergarten when developing the community, and should bear the legal consequences of the inability to provide evidence. 3.(2016) Lu 17 Min Zhong No. 1735 Civil Judgment Summary of the judgment: The court held that the reasons why the ownership of the kindergarten house involved in the case belongs to the owner are as follows: First, the commercial housing sales contract signed between the developer and the owner of the community involved in the case did not stipulate the ownership of the house occupied by the supporting kindergarten, and the above-mentioned house has not yet For the property right certificate, the developer cannot provide evidence that the property right of the house belongs to it; second, the planning drawing of the planning department of the Development Business Daily shows that the district planning includes kindergartens. Third, the developer cannot provide evidence to prove that it will separately account for the "contribution" of the houses occupied by the kindergarten when developing and constructing the residential area involved. Fourth, the developer claimed that the supporting facilities include kindergartens in the development case and in the publicity, so that the owner can obtain reasonable trust in the corresponding supporting facilities by purchasing the proprietary parts. To sum up, the supporting kindergartens involved in the case should be shared by all owners. Through the above cases, it can be seen that the court tends to share the property rights of supporting kindergartens in urban and rural residential areas. The argument mainly includes the following four aspects: first, whether the ownership of kindergartens in urban and rural residential areas is agreed in the commercial housing sales contract, and whether the planning drawings show that the district planning includes kindergartens; Second, whether the area of supporting kindergartens has been shared and borne by the owners when purchasing houses; Third, whether the construction cost of supporting kindergartens is included in the development cost of commercial housing and constitutes an integral part of the housing price; fourth, whether the developer advertises the kindergarten as a public supporting facility in the community in the sales publicity materials, resulting in reasonable trust of buyers. Legal Analysis on the Ownership of the Property Rights of Supporting Kindergartens in Urban and Rural Residential Areas in 3. Whether it is the previous "the People's Republic of China Property Law" or the current "the People's Republic of China Civil Code", there are no clear regulations on the property rights of supporting kindergartens in urban and rural residential areas. However, through the previous case analysis, it can be seen that the court's judgment of the ownership of the property rights of supporting kindergartens in urban and rural residential areas can be roughly divided into the following two views. Supporting kindergartens in urban and rural residential areas of (I) are structurally independent In judicial practice, if it is considered that the supporting kindergarten in urban and rural residential areas is structurally independent, the supporting kindergarten conforms to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Distinguishing Ownership of Buildings" Secondary specialized school has some characteristics. Based on the principle of autonomy between the parties to the contract, the court will give priority to respecting the agreement between the two parties to the contract when judging the ownership of the kindergarten property. When the two parties to the contract have no agreement or the agreement is unclear, the developer is required to show relevant evidence in the planning, construction process and subsequent sales process, such as district planning drawings, kindergarten area unallocated certificate, cost separate cost accounting cost description and sales publicity materials, etc, it is used to prove that it has a property right to the kindergarten, otherwise it shall bear the adverse consequences. The supporting kindergartens in urban and rural residential areas in (II) are not structurally independent. If it is considered that the supporting kindergartens in urban and rural residential areas are not structurally independent, they are regarded as public places or public facilities in the community. According to Article 274 of the the People's Republic of China Civil Code: "... other public places within the building area, public facilities and property service houses belong to the owners." The kindergarten should be shared by all owners. The court should focus on the non-independence of the supporting kindergarten to balance the interests of both parties. 4. epilogue It can be seen that after the "Notice of the General Office of the State Council on Carrying out the Governance of Supporting Kindergartens in Urban Communities" was issued, in response to the document, "The completed supporting kindergartens in the community should be handed over to the local education administrative department in a timely manner in accordance with the regulations, and those that have not been handed over to the local education administrative department should be completed within a time limit, and effective measures should be taken to recover those that have been diverted for other purposes." Many local governments have successively issued management measures to provide for the transfer of property rights of supporting kindergartens in urban and rural residential areas. However, the scope of property rights transfer does not cover all supporting kindergartens in urban and rural residential areas. Some local governments still allow supporting kindergartens to be privately owned, provided that they are not used for other purposes. In judicial practice, there are also great differences in the judgments of local courts on the ownership of property rights of kindergartens in urban and rural residential areas. It can be seen that the current legal provisions on the ownership of supporting kindergartens in China are not perfect. In order to better establish and improve the urban and rural residential areas supporting kindergarten planning and construction and management of the use of security mechanisms, the expansion of pre-school education resources, improve pre-school
2022-12-05
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Viewpoint... The digital age is the end of property ownership?!
Thirty years ago, Vice President Al Gore and Secretary of Commerce Brown formally announced the implementation of the "National Information Infrastructure" plan in the United States, which is known as the "Information Highway" plan. At that time, the U.S. Department of Commerce released the emerging digital economy. This report put forward a point of view: the core resources that play a decisive role in the economy will change from "currency" to "data". This is the beginning of the digital era. The United States has successively laid out cloud computing, big data, advanced manufacturing, 5g, quantum communication and other frontier fields, And put forward the "digital government" strategy. At that time, personal PC was still an expensive luxury in China, and university computers were also taken care of in special computer rooms. 286, 386, win95 and win98 represented that era, and even DOS games of "Legend of Sword and Fairy" could dominate the market. Thirty years later, China has also stood on the runway of the digital economy. At the Global Supercomputing Conference in Frankfurt, Germany, the "Shenwei · Light of Taihu Lake" from China topped the list of the "Top 500 Global Supercomputers. This is the first computer in China that does not use American chip technology and runs at the world's first speed. It has three "world first" indicators: peak system performance 1.25 billion billion times per second, continuous performance 0.93 billion billion times per second, and performance per watt 6.05 billion times per watt. Its 1-minute computing power is equivalent to 7.2 billion people around the world using a calculator to calculate continuously for 32 years. What can this computing power do? It can achieve a million-core-scale global 10-kilometer high-resolution numerical simulation of the Earth system, which will comprehensively improve China's ability to mitigate and prevent extreme weather and natural disasters; the National Computational Fluid Dynamics Laboratory's return path for Tiangong-1 will provide accurate predictions for its smooth return home; and the digital age is already before us. The China Academy of Information and Communications Technology believes that the core of the digital age is the two successive processes of industrial digitization and digital industrialization, turning the existing industry, life, culture, and management into a digital drive to realize industrial digitization, and the huge value of the data itself can Stimulate industrial upgrading and the birth of new industries, and realize digital industrialization. Thus forming a spiral upward cycle, increasing the internal drive for economic development, the digital age has unfolded a magnificent picture. Big data, Internet of Things, artificial intelligence, 5G industry and block chain "digital industry" are surging like waves and evolving into various industrial forms-unmanned driving, intelligent logistics, black light factory....... However, when the property is digitized, where is our property? How to protect the property ownership? Has the property ownership come to an end?! The Dilemma of 1. Digital Property Property ownership is a concept given by law, and law has a lag. But in the digital age, this lag is even more pronounced, even putting our property ownership in a bind. Ownership is the right of the right holder to possess, use, gain and dispose of his property (movable or immovable) according to law, also known as "right to the world", which is a classic right of free control rooted in civil law. The Civil Code also recognizes the value of virtual property, but how to deal with the creation, use, management and protection of digital property? In the digital age, all this will be broken. When we register users of the network platform, we habitually skip the user agreement, usually ignore the various management tips and privacy policies of the platform operators, and click the "agree" button to confirm. And behind this, the ownership we think we should get is being severed by a strong platform agreement. On November 17, 2022, the game company Blizzard suddenly announced that it would end its license agreement with Netease until January 23, 2023: from 0:00 on January 24, all national service games such as World of Warcraft and StarCraft series will cease operation. Netease "is very sorry that Activision Blizzard announced the suspension of cooperation first, we will have to accept this decision", the property formed by countless players is unknown. But according to the platform agreement you ignored, although the property has value, you are not allowed to make any transactions. The ownership you believe may be limited to your own use and only for the duration of the platform operator's license. The rights of possession, use, income and disposition at our disposal are limited to "a time-limited right to use". You can't actually control him, you can't transfer him, you can't generate any income, and you'll be arbitrarily revoked all rights at any time. Is this the tragic end of digital property ownership? Some people say that this is virtual property, not enough. So, let's look at the books again. We can buy and own a book in the real world, we can choose to read or decorate our room, we can lend, donate, transfer old books online, this book is our property. And what about books in electronic form? E-books and physical books not only change in form, but directly deny the current ownership system. In the case of a physical book, you can transfer or mail the book to the next user for a fee or free of charge. But if it is an e-book, where is the data? If your e-book is stored on the platform and you only read it in real time, for example, if your book is read through Amazon e-reader, you can hand over your e-book reader to the other party, which means handing over your entire library and valuable electronic equipment, just as it is absurd that you must hand over the physical book to the other party together with the bookshelf or even the study. Another way to consider is to keep your equipment, only send the file to your friends, but the problem is that this process actually creates one or more new copies, which is precisely the "copying" behavior prohibited by copyright law, and enters the category of infringement consideration. So where are your rights to possess, use, gain and dispose of digital products? How do you exercise your ownership? The dilemma arises...... 2. who deconstructed our ownership In the face of cheap data-based products, such as e-books, the price is often only the 1/2 of physical books, or even lower. For readers who pay attention to the content, it has a natural price attraction. Even you can exchange for free reading by watching advertisements for a certain period of time. This is the premise and basis for us to accept him, so more people choose to "subscribe" every day. Digital products instead of buying. However, this kind of subscription is obviously not the subscription to physical books and periodicals that we understand every day. No matter whether we continue to subscribe or not, these physical newspapers and periodicals are controlled by you and no one can take them away. However, if you stop subscribing to the platform, your account may be emptied and nothing will remain. Even if the platform compromises, you need to rely on the platform to exist forever, otherwise it will still be gone. The platform uses cheap data replication, or even just network "access", without having to spend huge amounts of replication, transportation, and warehousing costs. Of course, it is happy to see it. Moreover, it has directly cut off the resale of the second-hand market. All those who want to obtain services must pay directly to the platform. All people will become the same customers again. For the platform, the blowout demand has brought the market to life. Will creators receive more as a result? This is just a good assumption. If digital books have only one export platform. When the creator asks for a license fee to be added to the huge sales revenue, the platform may directly take the work off the shelf on the grounds that it involves an infringement dispute, breaking its transmission chain. The corresponding consumers must also accept the result that the books they subscribe to disappear without their consent and cannot get the corresponding compensation. If this situation continues to be deduced and developed, you will find that our knowledge, thoughts, hobbies and trends will be mastered by the platform. He only provides what he thinks he wants to provide, and then by guessing what you like, you will continuously weaken your ability to obtain information and think. Finally, everyone's thoughts and insights will be "cloud" to the platform, not only losing ownership, but even people as the main body of thinking will slowly lose. Technology really is a revolution, it deconstructs everything, doesn't it? 3. what else can we do in the face of the impending loss of digital ownership? All this is happening quietly, whether conscious or indifferent. The Institute of Electrical and Electronics Engineers (IEEE), an association of engineers, scientists, and other technologists, is one of the most influential organizations in the world that has developed a large number of standards and specifications for our society, as well as the establishment of a working group to develop a "consumer-owned personal digital property" (DPP) standard as early as ten years ago, but it has not yet been released. The law must face change: (I) platforms should be denied misleading ownership and false promises. Let the consumer know clearly whether his payment is "all" or "license", not just "buy immediately". If the consumer really only wants to temporarily own, such as leasing, but the platform cannot provide only temporary license in the name of ownership. This kind of non-committal misleading or intentional false promise makes consumers lose the right to free choice. In this regard, of course, supervision should be strengthened. We are not only concerned about network security, but also whether our property is safe after paying the consideration. Abuse of (II) Restriction (EULA) End User License Agreement (EULA) The end-user license agreement is drawn up unilaterally by the platform, often at length. There are some standardized platforms, license agreements and even hundreds of pages. Reading this obscure agreement takes longer than reading the book I want to buy. Moreover, you simply don't know where to hide the trap in the manuscripts drawn up by these professionals. So we often choose to tick the OK after consent, but this (EULA) end user license agreement. The Civil Code makes a transformative provision for format clauses, "If the party providing the format clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." But the rejection of some of the standard terms of the contract means that we must have acquired ownership? This is not a black or white question. It is still within the scope of the contract between the two parties, and it still needs to be confirmed by both parties. It is still necessary to regulate the legal relationship that is constantly breaking the balance and being destroyed. (III) digital protections will remain the armour of platforms to resist ownership Even if we break through the (EULA) end-user license agreement, the machine code limitations of digital protection measures (e. g., self-destruction, remote deletion) remain an obstacle for owners to control their property. Digital protection measures themselves are major measures that are transferred to the platform in the development of the digital industry, which can independently determine how you access, use and recover your digital assets. For example, the original Microsoft software genuine verification lock hardware or interfere with the normal use of users, how to balance digital protection measures and user ownership, will face great challenges. These let a person feel the power of technology, the pressure of these protective measures, let a person like a throat. Of course, there are still a number of issues that need to be considered and resolved. Besides, there are e-commerce, digital currencies, digital collections, financial data, software, personal information data, and all kinds of digital assets of enterprises, how do we face the surging digital economy, digital society, digital government and digital ecology......
2022-12-05
05
2022-12
In order to "study, publicize and implement the spirit of the 20th CPC National Congress and promote the full implementation of the Constitution", Song Huidong, director of the Urban Construction Real Estate Department of Zhongcheng Qingtai (Jinan) Law firm, conducted special rule of law training on Constitution publicity Day for Jinan Jinlin Real Estate Co., Ltd. The training content of this Constitution Publicity Day mainly focuses on the promulgation and implementation process of my country's constitution, the important content of my country's current Constitution, the significance of the establishment of the National Constitution Day, and the content and significance of the 2018 constitution amendment. With the theme of the 2022 Constitution Propaganda Day-"Study, publicize and implement the spirit of the Party's 20th National Congress, and promote the full implementation of the Constitution", starting from the eleven work requirements of General Secretary Xi Jinping's comprehensive rule of law and the implementation of Jinping's rule of law as the entry point, In-depth explanation of the political, popular, systematic, and practical nature of the Constitution. This training was well received by the consultants, and they all expressed that through the legal lectures of this Constitution Propaganda Day, they deeply realized the importance and authority of the Constitution as the fundamental law of our country, and also deeply realized our country's determination to fully implement the rule of law.
2022-12-05
02
2022-12
Presentation of 1. issues At the entity level, the main contract and the guarantee contract are mainly subordinate to the contractual relationship, and at the procedural level, in practice, most of the main-subordinate contract agreement supervisor jurisdiction is different, at this time still follow the principle of contract subordination? This paper takes "whether the validity of the arbitration agreement of the main contract can be expanded to apply to the contract, and whether the judicial organ should accept and how to deal with the guarantee contract" as the focus, combined with examples, with a view to clarifying the main contract at the procedural level on the jurisdiction of the agreement of the judicial disposal of the problem. The cited example Company A applies to Bank B for financing. Both parties sign a Financing Contract with a financing amount of RMB 0.2 billion. The main contract stipulates that the jurisdiction is N Arbitration Commission. In order to guarantee the performance of Company A's obligations to Bank B, C entered into a Guarantee Contract with Bank B and undertook to assume an irrevocable joint and several liability guarantee for the obligations under the above-mentioned main contract, with the jurisdiction of the M court from the contractual agreement. After Bank B paid the financing amount to Company A, as Company A experienced significant operational difficulties and began to owe interest on the financing, which constituted a breach of contract, Bank B then filed an arbitration with the N Arbitration Committee on the main contract dispute, requiring Company A, the principal debtor, to assume responsibility for the return of the financing amount and the corresponding losses. (as shown in the figure) As can be seen from the above figure, there is a master-slave relationship between the two contracts in this case, when the principal debtor A company overdue payment of the due debt constitutes a default, creditor B Bank chose to first to the N arbitration committee on the main debt of the arbitration. At this point, the following questions arise: 1. Can the creditor B Bank file an arbitration with the N Arbitration Commission on the guarantee claim against C? (Is the arbitration agreement agreed in the main contract effective as the guarantee contract?) 2. Can the creditor B bank bring a lawsuit to the M court together with the principal creditor's right and the guaranteed creditor's right? (How to determine the competent authority when the principal-subordinate contract stipulates that the competent jurisdiction is inconsistent?) 3. After the creditor B initiates arbitration, can the creditor B separately file a separate lawsuit for the guarantee contract dispute with the M court? (Does the creditor have a separate right of action against the joint and several liability guarantor?) 4. If the creditor B brings the lawsuit of guarantee contract to the M court, should the M court accept the case? If the case is accepted, how should the subsequent judgment be made? (The acceptance and judgment of the lawsuit of joint guarantee contract in the arbitration of the main contract?) 2. association law (I) Article 21 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Code on the Guarantee System: If an arbitration clause is agreed upon in the main contract or the guarantee contract, the people's court shall have no jurisdiction over the dispute between the parties to the contract in which the arbitration clause is agreed. If the creditor sues the debtor and the guarantor together, the competent court shall be determined in accordance with the main contract. Where the creditor may sue the guarantor alone and only the guarantor in accordance with the law, the competent court shall be determined in accordance with the guarantee contract. (II) (abolished) Article 126 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Guarantee Law (abolished and now replaced by Article 21 of the above-mentioned Judicial Interpretation of the Guarantee System): If the debtor of joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period stipulated in the main contract, the creditor may directly require the guarantor to bear the guarantee responsibility within the scope of its guarantee. Article 5 of the (III) the People's Republic of China Arbitration Law: If the parties reach an arbitration agreement and one party sues the people's court, the people's court shall not accept it. (Arbitration clause has the compulsory effect of excluding the jurisdiction of the court) Article 21 of the (IV) the People's Republic of China Arbitration Law stipulates: "The parties applying for arbitration shall meet the following conditions: (1) there is an arbitration agreement; the (II) has specific arbitration claims and facts and reasons; and the (III) shall fall within the scope of acceptance of the Arbitration Commission." (The judgment of the principal-subordinate relationship of the contract is not a statutory consideration for the arbitration institution to decide whether to accept the case) Article 24 of the (V) the People's Republic of China Arbitration Law (Revised) (Draft for Comment) stipulates: "If a dispute involves a master-slave contract, and the arbitration agreement between the master contract and the slave contract is inconsistent, the agreement of the master contract shall prevail. If there is no arbitration agreement in the slave contract, the arbitration agreement of the master contract shall be valid for the parties to the slave contract." 3. Practice Review (I) the validity of the arbitration agreement of the main contract shall not be extended to the subordinate contract. There are three reasons for this: First, from the perspective of laws and regulations, Article 21 of the Judicial Interpretation of the Guarantee System expressly states: "If the main contract or the guarantee contract stipulates an arbitration clause, the people's court shall have no jurisdiction over the dispute between the parties to the contract that stipulates the arbitration clause." The jurisdiction of the court can be forcibly excluded for the main contract or guarantee contract that has agreed on the arbitration clause in advance. However, in the second paragraph of the above judicial interpretation: "If the creditor sues the debtor and the guarantor together, the competent court shall be determined according to the main contract", it is stated that the principal-subordinate contract and the application of the principal contract to determine the competent court are not stipulated in the principal-subordinate contract, that is, there is no statutory situation that excludes the jurisdiction of the court from the contract. In addition, according to article 5 of the Arbitration Act, the arbitration clause has the mandatory effect of excluding the jurisdiction of the court. Second, from the point of view of the independence of the arbitration agreement and the relativity of the contract, according to article 19 of the Arbitration Law: "The arbitration agreement exists independently, and the modification, termination, termination or invalidity of the contract does not affect the validity of the arbitration agreement". And Article 21 of the Arbitration Law, from the point of view of weightlifting, since the change, termination, termination and invalidity of the contract will not affect the validity of the arbitration agreement, only by the subordinate nature of the main contract, can not cause the expansion of the validity of the arbitration agreement. Third, the classic case view of the Supreme Court is mainstream: Judicial precedent 1: Chengdu Youbang Stationery Co., Ltd. and Wang Guojian applied for revocation of Shenzhen Arbitration Commission (2011) Shen Arbitration Zi No. 601 Arbitration Award [(2013) Min Si He Zi No. 9]] Views of the Supreme Court: (Refer to the following reply) The case-related security contract did not agree on an arbitration clause, and the arbitral tribunal's opinion that the main contract had an arbitration clause and that the security contract as a subordinate contract should be bound by the arbitration clause in the main contract lacked a legal basis. The arbitral tribunal heard and made an award on a security contract that did not agree on an arbitration clause, and the guarantor Wang Guojian applied to set aside the grounds for the arbitration award involving his part as a guarantor. In view of the fact that Wang Guojian and Qi Xiang and Chen Jianjun are co-guarantors, the three have a common legal status, and the ruling on the liability of the three persons is expressed in item (IV) of the award, the people's court should set aside the award as an indivisible award. Thus, the Supreme People's Court held that the guarantee contract was not bound by the arbitration clause of the main contract. At the same time, the guarantee contract dispute case of Xi 'an Maike Metal International Group Co., Ltd. and Jinchuan Group Co., Ltd. [(2017) No. 47 of the Supreme People's Court] also involves the dispute over the jurisdiction of the principal-subordinate contract supervisor. The Supreme People's Court once again quoted the reply letter and stressed once again that the validity of the arbitration agreement of the principal contract cannot be extended to the subordinate contract. Judicial precedent 2: dispute over performance guarantee between Huizhou weitong real estate co., ltd. and Huizhou municipal people's government [(2001) min er zong zi no 177]] The Supreme Court's view: The case creditor Weft Company and the guarantor Huizhou City Government in the "performance confirmation" signed by both parties did not agree on the arbitration clause. This case is a performance guarantee dispute filed by Weitong Company against Huizhou Municipal Government, and the contract dispute between Weitong Company and Jiacheng Company is two different civil relations. The performance guarantee civil relationship formed between Weitong Company and Huizhou Municipal Government is not bound by the arbitration clause agreed in the contract between Weitong Company and Jiacheng Company. The parties did not choose arbitration to resolve the dispute in the performance confirmation signed. The lawsuit of Weitong Company complies with the provisions of Article 108 of the the People's Republic of China Civil Procedure Law, and the Guangdong Higher People's Court shall accept it. The Higher People's Court of Guangdong Province ruled that the arbitration clause in the contract was clear, thus excluding the jurisdiction of the people's court over the performance guarantee dispute, and ruled that the lawsuit of Tongweitong Company should be corrected according to law. Contrary view: According to Article 24 of the the People's Republic of China Arbitration Law (Revised) (Draft for Comment), "If a dispute involves a master-slave contract, and the arbitration agreement between the master contract and the slave contract is inconsistent, the agreement of the master contract shall prevail. If the slave contract does not agree on an arbitration agreement, the arbitration agreement of the master contract shall be valid for the parties to the slave contract." This provision actually expands the validity of the arbitration agreement of the main contract, showing that the legislator has expanded the scope of the validity of the arbitration agreement to apply the subordinate attribute of the main contract in order to improve the legislative purpose of judicial efficiency. However, the author believes that the arbitration clause generally only strictly restricts the parties to voluntary arbitration, and not only considers the subordinate nature of the guarantee contract, and applies the law of substantive law to the level of procedural law. This provision not only conflicts with other provisions of the Arbitration Law, but also leads to some problems in judicial practice. Therefore, it is suggested that this provision should be adopted carefully. In summary, the arbitration clause in the main contract does not necessarily bind the parties to the security contract, nor should its effect be extended to the contract. Therefore, in the cited example, Bank B may not apply to the N Arbitration Commission together with the guarantee contract (the arbitration agreement may not be extended to a subordinate contract), nor may it bring the main claim against Company A together with the guarantee claim against C to the M court (the arbitration agreement excludes the jurisdiction of the court). After the (II) creditor has initiated arbitration on the main claim (or has not initiated arbitration), the judicial treatment of a separate lawsuit for the guarantee contract dispute. According to Article 21, paragraph 3, of the Judicial Interpretation of the Security System: If the creditor may sue the guarantor alone and only the guarantor in accordance with the law, the competent court shall be determined in accordance with the security contract. According to Article 18 of the the People's Republic of China Guarantee Law and Article 126 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Guarantee Law (abolished and now replaced by Article 21 of the Judicial Interpretation of the Guarantee System), if the debtor of joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period stipulated in the main contract, the creditor may directly require the guarantor to bear the guarantee responsibility within the scope of its guarantee. From the above, in terms of procedure, creditors have the legal right of action against the guarantor of joint and several liability. Through searching cases and consulting relevant professional articles and materials, the author found that in judicial practice, the court under the jurisdiction of the guarantee contract dispute will have the following disposal methods (refer to the following figure). According to the relevant classic cases of the Supreme Court, the mainstream view is that creditors directly claim the guarantee responsibility to the guarantor and the people's court should accept it, however, the scope of liability for security cannot be determined because the principal obligation has not yet been determined, and in principle, the scope of the principal obligation should be confirmed by consensus of the parties or by arbitration before proceeding with the proceedings. Specific as shown in the following figure: Representative jurisprudence 1. Case of Dispute over Guarantee Contract between AVIC Huide Wind Power Engineering Co., Ltd. and Liaoning Gaoke Energy Group Co., Ltd. [(2015) Min Er Zhong Zi No. 125]] Interpreting the views of the Supreme Court: 1. The focus of the dispute in this case: the main contract agreed on the jurisdiction of arbitration, the guarantee contract did not agree on the jurisdiction of arbitration, the creditor directly to the guarantor to claim the responsibility of the guarantee, whether it can be supported by the people's court. 2. Interpretation (1) Creditors sue guarantors in the law-creditors have the legal right to sue, the court should file a case, emphasizing the irrationality of the court's decision not to accept and reject the prosecution. According to Article 18 of the the People's Republic of China Guarantee Law and Article 126 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Guarantee Law (abolished and now replaced by Article 21 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the the People's Republic of China Civil Code), the debtor of joint and several liability guarantee fails to perform its debts at the expiration of the debt performance period stipulated in the main contract, the creditor may directly require the guarantor to assume the guarantee liability within the scope of its guarantee. In this case, AVIC, in accordance with the "Guarantee Letter", sued Gaoke to assume the responsibility of the guarantee, in accordance with the law. (2) Because the principal obligation has not been determined, the scope of security liability has not been determined, triggering the guarantor to exercise the right of defense-the court is unable to conduct a substantive hearing of the principal creditor's debt relationship. The lawsuit request of the creditor AVIC Company is to claim that the guarantor Gaoke Company shall bear the guarantee responsibility and perform the obligation of unpaid payment on behalf of the debtor Ruixiang Company. The entity right of AVIC Company comes from the Supply Contract and Supplementary Agreement signed with Ruixiang Company. As the guarantor, Gaoke Company can also exercise the debtor's defense right in accordance with the provisions of the Supply Contract and Supplementary Agreement and the performance of the contract, including whether AVIC has fulfilled its supply obligations in accordance with the quantity and quality agreed in the contract, whether Ruixiang has fulfilled its payment obligations, whether it should continue to pay for the goods and the amount owed, etc., to carry out a physical defense. According to the "Supply Contract" and "Supplementary Agreement" of AVIC and Ruixiang, the above issues are disputes arising from the performance of the "Supply Contract" and "Supplementary Agreement" and fall within the scope of arbitration jurisdiction. If the People's Court conducts a substantive hearing of the above-mentioned dispute, it will inevitably infringe the right of AVIC and Ruixiang to choose arbitration to resolve disputes based on the agreement of the arbitration clause, and violate the principle of party autonomy. Therefore, when the arbitration jurisdiction is stipulated in the main contract, but the arbitration jurisdiction is not stipulated in the guarantee contract, the scope of the main debt should be confirmed through consensus between the parties or arbitration in principle. If the creditor only brings a lawsuit against the guarantor, the guarantor will defend the agreement and performance of the main contract, which will inevitably involve the issue of whether the court can hear and judge the disputes that have been agreed to the arbitration award, this involves both the right of choice of arbitration proceedings for the parties to the agreed arbitration jurisdiction and the scope of the exercise of the people's court's judicial power. In this case, Ruixiang, the third party in the original trial, did not waive its arbitration jurisdiction agreement with AVIC and held that the principal debt should be determined through arbitration. Therefore, for the high-tech company on the scope of the main debt can not be determined, the scope of the guarantee liability can not be determined, in the main debt has not been determined by the arbitration award, the air company directly requires it to bear the responsibility of the guarantee, belongs to the claim of insufficient evidence, according to law should be supported. 5. related recommendations To sum up, returning to the four problems mentioned in the cited example, the author believes that in order to avoid the complicated judicial disposal relationship similar to that under the jurisdiction of the supervisor and maintain the security and stability of creditor's rights, attention should be paid to the consistency of the dispute resolution methods of the master-slave contract, so as to avoid the subsequent separate guarantor claiming rights, the adjudication authority thinks that the dispute over the master contract should be resolved first and the scope of the master debt can be determined guarantee liability, this provides an opportunity for debtors and guarantors to evade their responsibilities and transfer property, ultimately affecting the realization of debt.
2022-12-02
01
2022-12
Case Import Zhang and Li got married on May 11, 2012 and gave birth to a daughter Zhang Xiaomou in November 2013. In 2018, both parties were divorced by court decision. The legitimate daughter Zhang Xiaomou was sentenced to be raised by Li. Zhang paid alimony and visited the children before the 10th of each month. Later, Li took the child to remarry abroad and changed the child's surname to the current husband's surname without permission. Zhang was very angry with his ex-wife for changing her surname for her children and wanted to fight against his ex-wife's change of surname by refusing to pay child support. Lawyer's opinion 1, according to the provisions of the law and judicial interpretation, Zhang has no right to refuse to pay alimony. Article 1085 of the the People's Republic of China Civil Code stipulates that if, after divorce, a child is directly raised by one party, the other party shall bear part or all of the alimony. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. The payment of maintenance is a legal maintenance obligation that should be fulfilled by the parent who does not directly raise the child. Article 59 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support because of their daughter's change of surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname. It can be seen that in this case, Zhang has no right to refuse to pay alimony based on his ex-wife changing his child's surname. However, because Li's act of changing the child's surname violated the provisions of Article 59 of the (I) of the Supreme People's Court on the application of the Marriage and Family Code of the the People's Republic of China Civil Code, Zhang can request Li to restore his child's surname in accordance with the law. 2, the traditional concept that the surname can not be changed, but in real life often have a variety of changes in the performance. A surname is a sign and symbol that indicates a person's family kinship and continuity. As for the son with the father's surname, it is accompanied by the emergence of private ownership, is the inevitable product of matriarchal society to patriarchal society. Through thousands of years of reproduction, this traditional concept has been deeply rooted in people's minds, forming a universal folk custom. In general, even if children cannot live with their parents due to their parents' divorce, their surnames do not need to be changed based on the recognition of blood relationship and respect for folk customs. In real life, the specific manifestations of a parent changing the surname of a minor child include the following situations: The first is that one parent changes the child's surname to his own surname after divorce; the second is that one parent changes the child's surname to the surname of the stepfather or stepmother; the third is that one parent changes the child's surname to the surname of the third person after divorce; the fourth is marriage During the existence of the relationship, one parent changes the child's surname to the other parent or another person. The first of these situations is most common in practice. Judging from the past situation, parents who unilaterally change their children's surnames are generally handled by the public security organs, and there are also appeals to the court for determination. In practice, the public security organs generally deal with whether they agree to change their children's surnames in accordance with their industry normative documents. 3. How to solve the problem of one parent changing his surname. Because minor children or adult children who cannot live independently lack the corresponding capacity for civil conduct, the change of their surname is mostly proposed by one parent, which often causes strong dissatisfaction from the other parent, and often refuses to pay child support as a means of protest. In order to solve this problem, Article 18 of the "Household Registration Regulations" of the Ministry of Public Security stipulates that the household registration authority may change the names of minor children based on the application of the father or mother and in accordance with legal procedures." The legislative consideration should be that, in general, the meaning of one of the spouses can represent the agreement of both parties. However, after the divorce, if one of the parties requests to change the name of the child without consultation or consultation without reaching an agreement, the public security organ may refuse to accept it; if one party obtains the change of the name of the child because of concealing the facts of the divorce from the public security organ, if the other party requests to restore the original name of the child and the divorce parties fail to reach an agreement, the public security organ shall restore it. To sum up, the change of children's surnames should, in principle, be subject to the unanimous consent of parents. However, in the case of a unilateral change in the surname of a child by one of the parents, the person who does not directly raise the child may not refuse to pay child support on this basis. Links to legal provisions 1. Article 101 of the the People's Republic of China Civil Code A natural person shall enjoy the right of name and shall have the right to decide, use, change or permit others to use his own name in accordance with the law, but shall not violate public order and good customs. 2. Article 1015 of the the People's Republic of China Civil Code A natural person shall take his father's surname or his mother's surname, but in any of the following circumstances, he may choose a surname other than his father's surname and his mother's surname: (I) select the surnames of other lineal elders; the surname chosen by the (II) for being supported by a person other than the legal dependant; (III) there are other legitimate reasons that do not violate public order and good customs. The surnames of natural persons of ethnic minorities may follow the cultural traditions and customs of their own ethnic groups. 3. Article 1084, paragraph 2, of the the People's Republic of China Civil Code also stipulates that after divorce, parents still have the rights and obligations to raise, educate and protect their children. 4. Article 1085 of the the People's Republic of China Civil Code stipulates that after divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. 5. Article 59 of the Interpretation (I) of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support due to their daughter changing her surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname. 6. Article 18 of the Regulations on the People's Republic of China Household Registration: Article 18 A citizen who changes his name shall be handled in accordance with the following provisions: When a (I) or a person under the age of 18 needs to change his or her name, he or her parents or adopters shall apply to the household registration authority for registration of the change; When a person (II) 18 years of age or older needs to change his or her name, he or she shall apply to the household registration authority for registration of the change.
2022-12-01
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
