02
2022-07
Endeavour in a New Journey, All Party Members Held by Zhongcheng Qingtai Jinan
On July 1, 2022, the CPC Shandong Zhongcheng Qingtai (Jinan) Law firm Committee held a general meeting of all party members to thoroughly study Xi Jinping's thinking on the rule of law, publicize and implement the spirit of the 12th Party Congress of Shandong Province, warmly celebrate the 101 anniversary of the founding of the Communist Party of China, and greet the victory of the 20th CPC National Congress with full political enthusiasm and outstanding achievements. This meeting was presided over by Han Honggang, director of the general office and party branch secretary of Zhongcheng Qingtai Law Firm. First of all, Secretary Han Honggang conveyed and studied the spirit of the 12th Party Congress of Shandong Province, profoundly explained the connotation of "walking ahead and opening a new bureau", clarified the overall requirements of the work in the next five years, and put forward the "six new leaps" struggle goals, Deploy twelve key tasks, and put forward clear requirements for unswervingly advancing the new great project of party building in the new era, scientific answers to the propositions of the times such as how to speed up the construction of a strong socialist modernization province in the new era have a significant and far-reaching impact on the party building and economic and social development of the province. Secretary Han Honggang said that the spirit of the Party Congress requires us to always maintain the spirit of striving for the first class. The goal leads the way forward, and the goal gathers the strength of struggle. To resolutely carry out the glorious mission of "walking ahead and opening a new game", we must always maintain the spirit of self-revolution. We must build ourselves stronger. Li Ruzhi, deputy secretary of the party committee of Zhongcheng Qingtai (Jinan) Law firm, expounded the connotation of Xi Jinping's thought of the rule of law and led all lawyers and party members to deeply study and understand Xi Jinping's thought of the rule of law. It is proposed to implement Xi Jinping's thought of the rule of law in all aspects and the whole process of lawyers' work, safeguard fairness and justice, serve the people, promote the construction of a higher level of legal work, and greet the victory of the 20th CPC National Congress with outstanding achievements. In the course of their work, lawyers adhere to the guidance of Xi Jinping's thought of socialism with Chinese characteristics in the new era, and thoroughly study, publicize and implement Xi Jinping's thought of the rule of law. Comprehensively adopt multiple forms and use multiple carriers to promote Xi Jinping's rule of law thought into the practice of the rule of law. All great achievements are the result of continuous struggle, and all great undertakings need to be advanced in the future. After the meeting, all party members expressed that through the in-depth study of this party building meeting, they have enhanced their full political enthusiasm, strengthened their strong responsibility, and inspired the majestic power to move forward courageously. Let us unite more closely around the Party Central Committee with Comrade Xi Jinping at the core, hold high the great banner of Xi Jinping's thoughts on socialism with Chinese characteristics in the new era, bravely shoulder the mission, forge ahead, and continue to thoroughly implement Xi Jinping's thoughts on the rule of law in future work, with more excellence The results welcome the victory of the Party's 20th National Congress. To make new and greater contributions to the realization of the second centenary goal and the realization of the Chinese dream of the great rejuvenation of the Chinese nation!
2022-07-02
01
2022-07
On June 30, 2022, Zhongcheng Qingtai (Jinan) Law Firm and Hengfeng Bank Co. The Committee of Shandong Zhongcheng Qingtai (Jinan) Law Firm of the Communist Party of China, together with the Legal Affairs Department Branch of the Hengfeng Bank of the Communist Party of China and the Sixth Party Branch of the Hengfeng Bank of the Communist Party of China Jinan Branch, reviewed the party oath and conducted in-depth exchanges and cooperation on party building activities. Director Geng Guoyu, secretary of the party committee of our institute, introduced the historical evolution, business development and the establishment and development of the party organization of the law firm, with emphasis on the integration of our party building culture and party building activities and business. Ma Xiangwei, General Manager of the Legal Affairs Department of Hengfeng Bank, and Pan Yifei, Assistant President of Jinan Branch, introduced Hengfeng Bank's advanced practices and experience in legal system construction, legal and business integration, four major areas and six major systems. The two parties signed the "Party Building and Co-construction Agreement" to realize the dual promotion of party building and business development through joint construction of platforms, sharing resources, exchanging work experience, and solving practical problems. After the meeting, the financial experts of Hengfeng Bank held a "seminar on financial management and investment strategy" to all colleagues ".
2022-07-01
29
2022-06
In order to strengthen the publicity of intellectual property protection, provide high-quality and efficient intellectual property legal protection services for innovation subjects, and empower innovation subjects to develop with high quality. From June 21st to 24th, Director Mou Xun and Lawyer Jing Lei of the Intellectual Property Team of Zhongcheng Qingtai Law Firm participated in the intellectual property "Three Entrances" propaganda activity organized by the Provincial National Intellectual Property Protection Center. The theme of this event is "Intellectual Property Entering Enterprises, Entering Campuses, and Conducting Industry Associations". Led by Yin Qiangmin, deputy director of the Provincial National Intellectual Property Protection Center, a group of 19 people successively carried out knowledge in Rizhao, Linyi, Jining, Heze and other places in our province. The "Three Entrances" publicity activities of property rights further strengthened the publicity and explanation of intellectual property work, and promoted the high-quality development of intellectual property services. And held discussions with local market supervision bureaus, relevant enterprises, universities, etc., fully discussed and exchanged issues on the development and protection of intellectual property rights, and gave targeted guidance to enterprises in applying for patents, building brands, and quickly safeguarding rights. The Provincial Intellectual Property Service Industry Association, Shandong Intellectual Property Exchange Center, Shandong Radio and Television Station, Volkswagen Daily, People's Daily Online, Volkswagen and other related media participated in this event. Zhongcheng Qingtai Law Firm has a large number of high-level expert teams in the field of intellectual property legal services such as patents, trademarks, copyrights, etc., providing satisfactory protection solutions and performance for the intellectual creativity and technological innovation of a wide range of client groups. Previously, many lawyers from Zhongcheng Qingtai have been selected into the talent expert database of the Provincial Protection Center. In the next step, Zhongcheng Qingtai lawyers will strengthen the promotion of intellectual property rights to government agencies, institutions, enterprises, and universities, and comprehensively promote the creation, use, protection, and management of intellectual property rights. Improve the service level, through your own expertise industry, focus on services, to help the high-quality development of intellectual property rights.
2022-06-29
29
2022-06
Recently, lawyer Yin Yanbo, senior partner of Zhongcheng Qingtai (Jinan) Law Firm, participated in the Seventh Congress of China Zhi Gong Party in Shandong Province as a representative of the Zhi Gong Party, and listened to and reviewed the China Zhi Gong Party in Shandong Province as a party representative and participant. Seventh Congress report. Wan Gang, vice chairman of the National Committee of the Chinese People's Political Consultative Conference, chairman of the Zhi Gong Party Central Committee, and chairman of the Chinese Association for Science and Technology, attended the opening ceremony and delivered a congratulatory speech. Li Meng, member of the Standing Committee of the Shandong Provincial Committee of the Communist Party of China and secretary of the Political and Legal Committee, attended the opening ceremony and delivered a congratulatory speech on behalf of the Shandong Provincial Committee of the Communist Party of China. Xu Hairong, member of the Standing Committee of the Shandong Provincial Committee of the Communist Party of China and Minister of the United Front Work Department, Zhang Jiangting, deputy director of the Standing Committee of the Provincial People's Congress and deputy secretary of the Party Leadership Group, Sun Shutao, member of the Provincial Political Consultative Conference, and Wang Zhimin, former chairman of the Provincial Committee of Zhi Gong Dang, attended the opening ceremony. Sun Jiye, vice governor and chairman of the Shandong Provincial Committee of the Kuomintang Revolutionary Committee, delivered a congratulatory speech on behalf of the provincial committees of the democratic parties and the Provincial Federation of Industry and Commerce. Zhao Jiajun, vice chairman of the Provincial Committee of the Chinese people's political Consultative Conference and chairman of the Shandong Provincial Committee of Zhi Gong Dang, on behalf of the sixth Shandong Provincial Committee of Zhi Gong Dang, made a work report entitled "unswervingly abide by the original heart and forge ahead hand in hand to renew the chapter -- contributing to the construction of a strong province of socialist modernization in the new era. Lawyer Yin Yanbo participated in the Seventh Congress of Zhigong Party in Shandong Province as a party representative, which fully reflects the government and all sectors of society's full affirmation of lawyers' participation in the construction of the rule of law and serving economic and social development. Lawyer Yin Yanbo will implement the spirit of the Seventh Congress of China Zhi Gong Dang, make full use of the foreign-related resources of Zhongcheng Qingtai Law Firm, and contribute to Zhi Gong Dang's "overseas Chinese serving the country.
2022-06-29
29
2022-06
On June 29, 2022, the party committee of Zhongcheng Qingtai (Jinan) Law firm organized party members and lawyers to visit the Shandong Revolutionary Historical relics Exhibition organized by the Shandong Provincial Museum. Deeply cherish the memory of the great achievements of the revolutionary martyrs, and deeply understand the connotation of the era of the red gene. During the visit, all party members carefully watched historical pictures and martyrs' relics, listened to the heroic deeds of revolutionary martyrs, and more deeply felt the patriotic feelings and heroic and indomitable fighting spirit of Shandong revolutionary pioneers serving the motherland. During the founding period of the Party, Shandong was one of the first six regions in China to establish party organizations; during the War of Resistance against Japan, the Shandong Party organization created the only anti-Japanese base area behind enemy lines that was basically within the scope of one province; during the War of Liberation, the Shandong liberated area was the strategic base for the whole party and the whole army to go north and south, and was one of the main battlefields of the War of Liberation. After the founding of New China, especially since the reform and opening up, under the leadership of the Party Central Committee, party organizations at all levels in Shandong have united and led the people of the province to comprehensively promote socialist construction, reform and innovation, and forge ahead. The province's economy and society have undergone earth-shaking history. change. After the event, the party members unanimously stated that this theme party day event is a profound patriotism and revolutionary traditional education activity, which makes us more deeply aware of the hard-won red mountains and happy lives. Party members and lawyers should inherit and carry forward the great spirit of building the party, strengthen their loyalty to the party, firm faith, Do not forget your initiative mind, and move forward bravely. Committed to the great practice of comprehensively governing the country according to law in the new era, and taking practical actions to create a better atmosphere for the 20th National Congress of the Party!
2022-06-29
28
2022-06
On June 20, 2022, Guo Yongjun, deputy director of the legal work department of Jinan Judicial Bureau, Geng Guoyu, president of Jinan Bar Association and director of Zhongcheng Qingtai Jinan Institute, and Zhang Wei, proposed director of Tibet Branch, set up a delegation of 6 people to visit Renbuxian County, Tibet, to promote the establishment of law firms. Renbu County is located in the south of Tibet Autonomous Region and the east of Xigaze City, with an average altitude of 3950 meters. The infrastructure is relatively backward and the climate environment is relatively bad. The delegation overcame difficulties such as strong altitude sickness, road obstacles, and language communication barriers, and finally successfully arrived in Renbuxian County, Xigaze City after three days. On the morning of June 23, a six-member delegation set up by the Tibet Branch visited the Justice Bureau of Renbo County, Xigaze City, and had full exchanges with Li Song, director of the Justice Bureau of Xigaze City, Cheng Huan, deputy head of Dawa Ciren, deputy director of the Justice Bureau, and Dan Zengkezhu, deputy director of the Justice Bureau. The leaders attending the meeting fully affirmed the outstanding contributions made by Shandong lawyers assisting Tibet over the years to the construction of the rule of law in Tibet, and expressed their strong support for the establishment of a branch office in Renbu. Director Geng Guoyu said that he would support the establishment and development of Renbu Branch and strive to contribute to the construction of the local rule of law. Zhongcheng Qingtai Law firm will bear in mind and implement Xi Jinping's thinking on the rule of law, adhere to service guarantee and improve people's livelihood from a legal point of view, persist in serving high-quality economic and social development, and persist in serving social harmony and stability. we will closely focus on the legal service needs of underdeveloped areas and people in need, and take effective measures to provide high-quality and efficient legal services for the long-term stability and high-quality development of the snow-covered plateau. At present, the administrative examination and approval and preparations for the establishment of the branch office are being actively promoted, and it is planned to officially operate in late July.
2022-06-28
28
2022-06
On June 28, 2022, Minister Feng Yujian of the Enterprise Management Department of China Minmetals Group Luzhong Mining Co., Ltd., Chief Yang Jiandong, Chief Liu Qi, Compliance Commissioner Ma Xiaodong and Chief Li Xinyu of the Discipline Inspection Department went to Shandong Zhongcheng Qingtai (Jinan) Law Firm to investigate the work. Lawyers such as Party Secretary and Director Geng Guoyu, Partner Zhang Ya and Fang Quan of Zhongcheng Qingtai (Jinan) Law Firm received the visiting leaders. Director Geng Guoyu accompanied China Minmetals Group Luzhong Mining Co., Ltd. and his party to visit the office area of Zhongcheng Qingtai (Jinan). He introduced in detail the basic information of Zhongcheng Qingtai's development process, performance honor, market expansion and party building work, and shared the achievements of Zhongcheng Qingtai in serving to build a new development pattern, innovating the rule of law service system and helping to promote the construction of a legal business environment. Subsequently, the two sides conducted more in-depth exchanges. Director Geng Guoyu extended a warm welcome to the leaders of China Minmetals Group Luzhong Mining Co., Ltd. and introduced in detail the history of Zhongcheng Qingtai Law Firm, the situation of each branch, the business introduction of the law firm, the income generation of the law firm, the party building culture of the law firm and the development of Party members. and expressed the expectation for the two sides to further strengthen cooperation and exchanges. Chief Liu Qi of the Enterprise Management Department of China Minmetals Group Luzhong Mining Co., Ltd. expressed his gratitude to Zhongcheng Qingtai (Jinan) Law Firm for the warm reception, and introduced the company's business situation, from the company's business scale, income and The company's litigation cases were elaborated in detail. At the same time, based on the long-term cooperative relationship, Chief Liu Qi expressed his appreciation and affirmation for the size of the law firm, the professional ability of the team, and the professional ability of lawyers of Zhongcheng Qingtai (Jinan) Law Firm, and expressed his expectation for the establishment of a cooperative relationship in the next year.
2022-06-28
27
2022-06
Construction project construction contract dispute first judgment case.
Case description Company A is a private enterprise with real estate development and management qualifications. Company B has the special qualification for general contracting of construction projects. In 2017, Company A identified Company B as the construction unit of a residential project it invested in and developed by inviting tenders. Company B contracted the construction project invested and developed by Company A. The two parties signed two contracts for the project, namely the "black and white" contract. The actual performance of the contract clearly stipulates that "if the contractor is unable to continue to perform or clearly indicates that it does not perform or has substantially stopped performing the contract, the party issuing contract may notify the contractor to terminate the contract immediately and deal with it in accordance with the relevant laws. If the contractor fails to take measures to rush the work for more than 30 days, the party issuing contract has the right to terminate the contract." Later, during the performance of the contract, Company B requested the construction period to be postponed and the material and labor costs to be increased, and Company A was required to pay the losses on the grounds that the project would stop production, outage, material and labor costs would rise. In this regard, the two sides did not reach an agreement. Since then, part of the project is in a suspended or semi-suspended state. Company A has repeatedly urged, but Company B still refuses to resume work. In 2018, Company A mailed a notice of termination of the contract to Company B in accordance with the contract, notifying Company B of the termination of the project general contract signed by both parties (actual performance of the contract). After Company B receives the notice of cancellation. In the same year, Company A filed a lawsuit to confirm that the contract in question had been terminated and demanded that Company B pay liquidated damages and compensate for the losses. litigation ideas The key point of the lawsuit is to confirm which of the two contracts is the actual performance of the contract and the breach of contract by Company B. In this case, the contract number and contract amount filled in by company B in the application form for payment of project funds to company a are completely consistent with the construction contract provided by company a in the lawsuit. therefore, the contract provided by company a is the actual performance of the contract by both parties, the true intention of both parties, does not violate the mandatory provisions of laws and administrative regulations, and is a valid contract. both parties shall fully perform their respective obligations according to the contract. Company A mailed a notice of termination to Company B in accordance with the actual performance of the contract. Company B did not raise any objection after receiving the notice of termination. During the trial, Company B recognized the fact that the contract had been terminated and Company B admitted that it had stopped the construction of the project on a certain day. Therefore, Company A requested to confirm that the contract involved in the case provided by it had been terminated and complied with the legal provisions. In view of the fact that Company A requests to confirm that the contract has been terminated in this case, the facts are clear, and other claims of Company A are more complicated. According to the relevant legal provisions of "advance judgment" in the the People's Republic of China Civil Procedure Law, in order to prevent the loss of work stoppage from continuing to expand, Company A applies to the court to make an advance judgment to confirm that the contract has been terminated. Litigation results Based on the above facts and relevant legal provisions, the court made a first judgment, the judgment confirmed that the contract has been terminated, and other claims of Company A will be judged after the relevant facts are found out. description of meaning This case is to use the first judgment litigation ideas to solve the construction contract dispute cases. The plaintiff's request for confirmation of the termination of the contract is clear. In order to prevent the loss of work stoppage from continuing to expand, the plaintiff, in accordance with relevant laws and regulations, applied to the court for a first judgment that the contract has been terminated. For the plaintiff's other claims, due to the complexity, the judgment will be made after the relevant facts are found out. The first judgment is to face difficult cases and multiple litigation requests of the parties. When some facts are clear, it can ensure timely access to judgments, prevent litigation delays, and improve litigation efficiency.
2022-06-27
24
2022-06
Recently, the US "Engineering News Record" (ENR) and China's "Construction Times" jointly released the 2021 "Top 80 Chinese Contractors and Top 60 Engineering Design Companies" rankings. The Construction Times also released "10 professional law firms and 60 professional lawyers in China's engineering law that are most worthy of recommend" at the same time ". Shandong Zhongcheng Qingtai (Jinan) Law Firm was selected as the "Top 10 Chinese Engineering Law Firms Worth recommend" in 2021. Senior partners Du Wentang and Li Heng were selected as the "Top 60 Chinese Engineering Law Lawyers Worth recommend" in 2021 for their highly specialized construction legal services ". Lawyer Du Wentang Lawyer Du Wentang: Deputy Director and Senior Partner of Shandong Zhongcheng Qingtai (Jinan Free Trade Zone) Law Firm, Arbitrator of Liaocheng, Weifang and Rizhao Arbitration Commission, Part-time Professor of Shandong Jianzhu University and Shandong University of Political Science and Law, awarded "Jinan Excellent Lawyer" in 2010, "Shandong Excellent Representative Lawyer" in 2016, graduate student of China University of Political Science and Law (equivalent), mediator of the Project Cost Dispute Mediation Committee of Shandong Engineering Construction Standard Cost Association, expert of the "Civil Administrative Procuratorial Expert Information Network" of the Supreme People's Procuratorate in 2021, executive director of the Land Law Research Association of Shandong Law Society, executive director of the Engineering Law Research Association of Shandong Law Society, was rated as "60 Most Worth recommend Professional Lawyers of Chinese Engineering Law" by ENR/China Construction Times in 2015, 2017, 2019 and 2021 ", lawyer Du Wentang has profound legal theory and strong practical experience as a lawyer. He is good at handling legal affairs in real estate project transfer, cooperative development, construction engineering, company, property service and so on. Since practicing, he has successively served as the legal consultant of Rizhao City Party and Government Integration, the legal consultant of Shanghe County People's Government, Greentown Real Estate, Longhu Real Estate, Zhonghai Real Estate, Jinke Real Estate, Zhongnan Real Estate, Jindi Real Estate, Country Garden Real Estate, Henglong Real Estate, Lushang Real Estate and many other brand real estate development enterprises in Shandong or Jinan area, and has repeatedly participated in the legal services of Greenland Real Estate, China Resources Land, World Trade Real Estate, Agile, Zhongliang Real Estate and other brand real estate development enterprises. Lawyer Du Wentang focused on professional theory and practical research, and wrote and published "A Brief Discussion on the Mode of Cooperative Development of Real Estate Projects and Legal Risk Prevention" ("Civil and Commercial Law Lawyer's Practice Series (15)") and "A Brief Analysis of the Legal Issues of" Payment of Subcontract Project Payment to be Paid by the Construction Party "(Staff Law Magazine); in the process of practice, combined with actual cases, courseware such as" legal risk prevention of enterprises and entrepreneurs "," acquisition method of construction land use right and its legal issues "," risk prevention of contract performance of construction enterprises "," contracts related to construction projects and their legal issues "," legal risk prevention in the process of contract signing and performance "," introduction to Jinan real estate development process "and" legal issues related to commercial housing sales contract "have been formed for many times presentation among clients. Lawyer Li Heng Lawyer Li Heng: first-class lawyer, deputy director and senior partner of Shandong Zhongcheng Qingtai (Jinan) Law firm, and president of Zhongcheng Qingtai Law Research Institute. Lawyer Li Heng serves as a member of the Chinese Law Society, a member of the Legal Professional Committee of the Economic Branch of the Chinese Architectural Society, a member of the Construction Engineering and Real Estate Professional Committee of the National Lawyers Association, an expert of the Supreme People's Procuratorate's Civil Administrative Prosecution Expert Consultation Network, a visiting professor of Shandong Jianzhu University, an off-campus tutor for a master of engineering, Representative of the Permanent China Construction Engineering Legal Forum and Member of the 8th and 8th and 10th Working Group with the Chairman and Secretary-General of the Commercial Committee, the Deputy Director of the Construction Engineering Professional Committee of the Shandong Lawyers Association, the arbitrator of the Shenzhen International Arbitration Court, Jinan, Dezhou, Zibo, and Maanshan Arbitration Committees. Lawyer Li Heng was named the 4th "Top Ten Young Lawyers in Quancheng" and was selected as "China's Contemporary Outstanding Lawyers" (Volume 3). In 2015, 2017, 2019 and 2021, he was jointly selected as the 60 Chinese engineering legal lawyers worth recommend by ENR of the United States and China's Construction Times for four consecutive times. Lawyer Li Heng now serves as the perennial legal adviser to the Housing and Construction Department of Shandong Province and the Housing and Construction Bureau of Jinan City, and has successfully handled many major, complex non-litigation and litigation (arbitration) cases with certain social impact, such as providing full legal services for the 11th National Games venues, National Games Village, supporting hotels, Jiqing high-speed railway construction, Jinan International Airport Phase II reconstruction and expansion project, Qilu Pharmaceutical Leling Pharmaceutical Factory and other projects, and participating in Shandong Province and Jinan City Construction project approval system reform supporting system formulation, jinxiang Jinrun Real Estate Co., Ltd. and Jiangsu Suzhong Construction Group Co., Ltd. construction project construction contract dispute, Huizhou Tian Energy Technology Co., Ltd. and Shandong Boen Investment Co., Ltd. photovoltaic project contract dispute, Zhongtian Construction Group Co., Ltd. and Laiwu Yinhong Real Estate Development Co., Ltd. construction project construction contract dispute, China Construction Third Bureau Group Co., Ltd. and Shandong Jiulong Marine Industry Co., Ltd. construction project construction contract dispute litigation exceeding 0.1 billion yuan (arbitration) cases. Li Heng lawyer professional solid, high quality of handling cases, highly praised by clients.
2022-06-24
20
2022-06
Viewpoint | Analysis of the validity of private entrusted financial contracts
Overview of 1. Private Entrusted Financial Management Entrusted financial management is an economic activity in which the principal entrusts his funds, financial assets, etc. to the trustee, who invests the assets in futures, securities and other trading markets or manages them through other financial forms, and the proceeds are distributed by both parties as agreed or the trustee collects agency fees. According to the main characteristics of the trustee, entrusted financial management can be divided into financial institutions entrusted financial management and non-financial institutions entrusted financial management. Financial institutions engaged in entrusted financial management business mainly include commercial banks, securities companies, trust companies, insurance companies and fund management companies. Non-financial institutions as trustees mainly include asset management companies, investment consulting companies and natural persons with certain professional knowledge. In recent years, due to the lack of specific supervision of the corresponding financial institutions, various forms and the lack of standardized guidance on rights and obligations, disputes have occurred frequently. In judicial practice, there are still differences in the validity of the private entrusted financial management contract, and this paper mainly combines the typical cases in judicial practice to analyze the effectiveness of the private entrusted financial management contract. The influence of the qualification of the 2. trustee on the effectiveness of the private entrusted financial contract. If the trustee is a legal person of a non-financial institution, the (I) shall review the content of its entrusted financial management and its business qualifications, subject qualifications, business scope, etc. If the content of the trustee's entrusted financial management exceeds its business scope, if the excess is prohibited, Restricted operation and franchise operation, the entrusted financial management contract is generally deemed invalid. Except for the trustee who accepts the entrustment of an unspecified object to engage in fiduciary wealth management business, in general, a contract entered into by a non-financial institution who accepts the entrustment of a specific object to engage in private entrusted wealth management is not considered invalid. However, if the trustee exceeds the scope of business and the excess is prohibited, restricted or franchised, or if the trustee is a practitioner in the financial industry, the financial contract will be deemed invalid. Typical case: Shanghai No.1 Intermediate People's Court (2020) Hu 01 Min Zhong No. 1847 Judgment held that "First of all, this court believes that Chen Jiping is listed as the authorized representative of relevant subordinate funds, regardless of the three-party naming on the front page of the dispute subscription agreement or the agreement in the general provisions of Article 1 of the dispute subscription agreement, and has made an agreement on the rights and obligations different from Puying Company as an investment consultant. In the process of the implementation of the dispute subscription agreement, Chen Jiping also carried out the relevant collection and transfer of funds in his own name in accordance with the agreement, and signed relevant documents on behalf of Ma Wenwei. Although Chen Jiping argued that these acts were the performance of his duties, this claim was clearly inconsistent with the contractual agreement and actual performance. After examination, the court has so far failed to provide sufficient evidence to prove that before and after the signing of the dispute subscription agreement, Ma Wenwei to accept its entrusted financial management and has a settlement relationship with the other party of the contract subject is Puying Company, and Chen Qiping and Ma Wenwei there is no direct payment, settlement relationship is known and recognized. Therefore, it is difficult for the Court to accept Chen Kiping's independent subject of his non-litigation subscription agreement. The court of first instance said that Chen Qiping was only a channel for Puying Company to invest in the trust company and collect funds, so the reasons and basis for Chen Qiping's determination that he did not have to bear civil liability were insufficient, and it was difficult for the Court to agree. Secondly, the parties in this case have not raised any objection to the invalidity of the subscription agreement, and there is no evidence that Ma Wenwei was obviously at fault in signing the subscription agreement in this case. In contrast, Chen Jiping and Puying, as specialized securities investment practitioners, are obviously more professionally aware of the investment projects and legal consequences involved in the case, and the prohibitions on the securities industry should be clearer. Knowing that the dispute subscription agreement violated the spirit of the relevant documents of the financial regulatory authorities and violated the order of securities market supervision, he still signed the dispute subscription agreement with Ma Wenwei, which eventually led to the invalidity of the agreement. Chen Jiping and Puying Company have unshirkable responsibilities. As the fault party, they should jointly bear Ma Wenwei's capital loss in accordance with the law". (II) if the trustee is a natural person, he or she generally does not need to be approved for accepting financial management entrustment, but if the trustee is a financial industry practitioner, the trustee should be examined for any violation of the prohibition of employment. For example, securities companies, trust companies and other practitioners privately accept financial management entrustment in their own name. In such cases, violation of the mandatory provisions of legal effect will render the entrusted financial management contract invalid. Typical case: Beijing Haidian District People's Court (2021) Beijing 0108 Minchu No. 29015 Judgment held that "judging from the WeChat chat records of both parties and the facts stated by all parties, Li Shengli accepted Yan Chunsheng and Liu Huiting's entrustment to manage their respective stock accounts and carry out relevant trading operations according to their own will and experience, although there is no written contract between the parties, but between Yan Chunsheng and Li Shengli and between Liu Huiting and Li Shengli is the legal relationship between the entrusted financial contract. According to the facts stated by the parties, Li Shengli was a securities practitioner when he accepted the entrustment of the two persons to operate the stock account for financial management. According to the provisions of paragraph 1 of Article 40 and paragraph 2 of Article 136 of the the People's Republic of China Securities Law, employees of securities trading places, securities companies and securities registration and settlement institutions, staff of securities regulatory institutions and other personnel prohibited by laws and administrative regulations from participating in stock trading shall not hold, buy or sell stocks or other securities with equity nature directly or in the name of others during their term of office or within the statutory time limit, nor may they accept shares or other securities of an equity nature as gifts from others. The employees of a securities company shall not privately accept the client's entrustment to buy or sell securities. The above provisions are mandatory provisions of validity. Therefore, in this case, Li Shengli, as a securities practitioner, engaged in securities wealth management business, and his entrusted wealth management contract with Yan Chunsheng and Liu Huiting is invalid". 3. the validity of the bottom clause in the private entrusted financial management contract. There is no clear agreement in the current law on the validity of the guarantee clause of the private entrusted wealth management contract. At present, in judicial practice, most courts have found that the minimum guarantee clause violates the principle of fairness in civil law and the principle of responsibility in entrustment contracts, violates economic laws, and should be deemed invalid; a few courts have found that the minimum guarantee clause does not infringe on national interests, does not disturb the order of the financial market, damages the public interest, and does not violate public order and good customs, so it should be deemed valid. Cases identified as invalid: Shanghai No. 2 Intermediate People's Court (2022) Hu02 Minzong No. 729 Judgment determined that "the entrusted financial management contract is the true intention of Fang Peili and Zheng Chao, and it does not violate the mandatory provisions of laws and administrative regulations. It is legal and effective. Both parties should comply with the principle of good faith, but the guarantee clause agreed by both parties should be invalid. Article 5 of the Receipt states that" the third party's income commitment shall ensure that the income shall not be less than 28% from May 26, 2015 to December 31, 2015 ", that is, the trustee Zheng Chao and the principal Fang Peili agreed to guarantee the minimum return of principal and interest, which is a guaranteed clause. Although the guarantee clause is the result of the autonomy of both parties, it unreasonably transfers the risk burden category that belongs to the client to the trustee, resulting in unequal civil rights and obligations of both parties, violating the basic principle of the client's own risk in the entrustment contract, and also violating the principle of fairness and the basic laws of the financial market, which is not conducive to promoting the healthy development of the securities market and maintaining the stability of the securities market, therefore, the agreement of the guarantee clause should be found to be invalid". Cases found to be valid: Guangdong Guangzhou Intermediate People's Court (2021) Yue 01 Min Zhong No. 25284 found that "regarding the validity of the guarantee clause involved in this case, the court's analysis is as follows: first, Article 144 of the the People's Republic of China Securities Law stipulates:" Securities companies shall not make promises in any way to the profits of customers' securities trading or to compensate for the losses of securities trading." In this case, although Deng Zhongyi, as the trustee, made a promise to ensure that the principal of the entrusted assets for stock investment will not be lost, Deng Zhongyi does not belong to the securities companies and their employees that are not allowed to engage in financial management on behalf of clients and promise returns as stipulated in articles 144 and 145 of the the People's Republic of China Securities Law, while the restrictive provisions of the law on the behavior of special subjects cannot be directly applied to non-special subjects by analogy, therefore, there is no violation of the aforementioned provisions or other mandatory provisions of laws and regulations resulting in the invalidity of the contract. Secondly, the performance of the contract involved in this case is that Deng Zhongyi was entrusted to use his own funds in He Qianlan's account to invest in securities for him, which does not involve the national interest, nor does it endanger the stability of the financial market and the public interest of society, such as the use of capital allocation for highly leveraged transactions. Deng Zhongyi involved in accepting entrustment to carry out stock investment financial management disputes, in Guangzhou two-level court only case, Deng Zhongyi self-admitted that is only accept He Qianlan's entrustment to carry out entrusted financial management, the principal does not come from the society is not a specific object, Deng Zhongyi is not mainly entrusted financial management profit income as a source of income. Therefore, the minimum guarantee clause involved in the case did not infringe on national interests, did not reach the level of disrupting the order of the financial market and harming the public interest, and there was no violation of public order and good customs. Finally, the civil status of both parties in this case is equal, and neither of them is the subject of monopoly in the market. Both parties have sufficient choice when determining the subject of the transaction. Both parties have full freedom of expression and freedom of contract on whether to conclude the entrusted financial management contract and the specific terms of the contract. The terms reached should be considered as the result of independent consultation and prudent decision-making, it is the embodiment of the principle of voluntary and the principle of autonomy of the civil subject. Judging from the WeChat chat records of both parties, Deng Zhongyi had bought shares from He Qianlan recommend many times and made analysis before the two parties established a private entrusted financial management contract. It can be seen that Deng Zhongyi has certain professional investment and financial management experience and knowledge, and has the ability to predict investment risks. Deng Zhongyi in the conclusion of the contract in order to strive for 30% of the profit sharing, voluntarily bear the risk, in the premise of not bearing the obligation to contribute to the bottom as a condition, voluntarily accept He Qianlan entrusted to use his funds for stock investment. Even because the securities market is a high-risk investment place, Deng Zhongyi's stock trading began to suffer losses in October 2019. Since then, Deng Zhongyi has continued to pay a "guaranteed profit" of 3000 yuan every month from November 2019 to March 2020 without raising any objection to the validity of the guaranteed clause. Therefore, the guaranteed clause is not invalid because it violates the principle of fairness. Based on the above analysis, the guaranteed clause formed by Deng Zhongyi and He Qianlan through agreement does not violate the prohibitive provisions of laws and regulations. The two parties distribute the benefits and losses between the parties. The rights and obligations of the parties are essentially balanced. The guaranteed clause is valid. The court of first instance found that the guarantee clause involved in the case was invalid, and the court corrected it." After the 4. determines that the guarantee clause is invalid, the validity of the private entrustment contract and the principle of loss determination. In judicial practice, after determining that the guarantee clause is invalid, most courts have determined that the guarantee clause belongs to the purpose clause and core clause of the entrusted financial management contract and cannot become a relatively independent invalid part of the contract. Therefore, the ineffectiveness of the guarantee clause leads to the invalidity of the entrusted financial management contract as a whole, and both parties to the contract share the losses arising from the performance of the entrusted financial management contract according to their fault. Typical case: Beijing Financial Court (2022) Beijing 74 Minzong No. 126 Judgment held that "this court believes that the agreement in the Account Entrusted Investment Agreement that" if Party A's account suffers a loss of principal after the end of the entrustment, Party B shall compensate Party A "by ensuring that the investment principal will not be lost and Li Jisheng will be exempted from the investment risk, which is a guaranteed clause, in view of the fact that the" guaranteed clause "belongs to the purpose and core clause of the entrusted financial management contract in this case, the court of first instance ruled that this cannot be a relatively independent invalid part of the contract, resulting in the" Account Entrusted Investment Agreement "signed by Li Jisheng and Jin Zhichao to entrust the financial management contract as a whole invalid, and there is no obvious impropriety. After the entrusted financial management contract is confirmed to be invalid, the trustee shall return the principal amount of the entrusted assets to the principal, and the income from the entrusted financial management shall first offset the amount of principal that should be returned". 5. Conclusion With the increasing number of disputes over private entrusted financial contracts, how to identify the effectiveness of private entrusted financial management in practice is undoubtedly crucial. The author thinks that if the trustee does not take "entrusted financial management" as the main business, and does not violate the legal effect of prohibition, the private entrusted financial management contract including the guarantee clause has legal space. Here, we look forward to further attention and response to this issue at the judicial level. 6. legal basis Civil Code Article 6 When engaging in civil activities, a civil subject shall follow the principle of fairness and reasonably determine the rights and obligations of all parties. Article 999 A contract of entrustment is a contract in which the principal and the trustee agree that the trustee shall handle the affairs of the principal. Article 929 If a paid entrustment contract causes the principal's loss due to the trustee's fault, the principal may request compensation for the loss. For a gratuitous entrustment contract, if the trustee's intentional or gross negligence causes the principal's loss, the principal may request compensation for the loss. If the trustee exceeds his authority and causes losses to the principal, he shall compensate for the losses. Securities Act of the People's Republic of China Article 40 Employees of securities trading venues, securities companies and securities registration and settlement institutions, employees of securities regulatory bodies and other persons prohibited by laws and administrative regulations from participating in stock trading shall not hold, buy or sell stocks or other securities of an equity nature directly or under a pseudonym or in the name of another person during their term of office or within the statutory time limit, nor may they accept shares or other securities of an equity nature as gifts from others. Article 135 A securities company shall not make a commitment to the proceeds of the trading of securities by its clients or to compensate for the losses incurred in the trading of securities. Article 136 If a practitioner of a securities company executes the instructions of the securities company to which he belongs or violates the trading rules by taking advantage of his position in the course of securities trading activities, the securities company to which he belongs shall bear full responsibility. The employees of a securities company shall not privately accept the client's entrustment to buy or sell securities. the People's Republic of China Securities Investment Fund Law Article 20 The fund manager of a publicly offered fund and its directors, supervisors, senior managers and other practitioners shall not commit the following acts: (4) It is prohibited to promise gains or bear losses to fund share holders in violation of regulations. Interim Provisions on the Operation and Management of Private Asset Management Business of Securities and Futures Institutions Article 3 Securities and futures business institutions and relevant sales institutions shall not sell asset management plans in violation of regulations, and shall not improperly publicize, mislead and defraud investors, and promise investors that the principal will not be lost or the minimum return will be promised in any way, including but not limited to the following situations: (1) There are expressions in asset management contracts and sales materials that contain the connotation of capital preservation and return, such as zero risk, guaranteed return, worry-free principal, etc; the name of the (II) asset management plan contains the word "capital preservation"; the (III) and investors privately sign repurchase agreements or commitment letters and other documents, directly or indirectly promise to protect capital and income.
2022-06-20
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
