Supreme Law Intellectual Property Dispute Determination Rules | Drug Patent Linking System to Make Patent Law Warm and Grounded

Drug, Patent Protection and Drug Patent Link System Medicine is a special commodity. It not only has the attributes of general commodities, but also has some special attributes because of its close relationship with human life and health. Compared with other technical fields, drug research and development is often more difficult because of the remarkable characteristics of "long cycle, high risk and high cost. As a result, pharmaceuticals rely on patent protection more than any other field of technology. A survey shows that without patent protection, 65% of drugs will not be developed and 60% of drugs will not be marketed. The development of medicines is also linked to public health issues, directly affecting the public's access to essential treatment and health services in many developing countries. Therefore, there is a need to establish a "balance" between the interests of pharmaceutical companies and public health ". In the field of medicine, drugs can usually be divided into original research drugs and generic drugs. Because it can directly promote the reduction of drug prices, generic drugs are an important basis for ensuring drug accessibility and benefiting public health. Original research drugs and generic drugs are both competitive and indispensable. Balancing the development of the two has become an important part of the design of the government management system, and the drug patent link system is produced in this context. The drug patent linkage system originated from the U.S. Drug Price Competition and Patent Period Compensation Act of 1984, the Hartke-Waxman (Hatch-Waxman) Act ". In the 1930 s, the "sulfonamide elixir incident" and "thalidomide incident" aroused the attention of the United States to drug safety issues, and carried out a series of reforms to the drug management system. The United States subsequently introduced a series of bills requiring pharmaceutical companies to prove the safety and effectiveness of their drugs in strict accordance with the requirements before they can be marketed. However, strict examination has also brought about a greater negative impact. On the one hand, the market monopoly period of original research drugs under patent protection has been greatly reduced; on the other hand, the cost of generic drugs has increased significantly. As a result, the pharmaceutical industry in the United States has fallen into a passive position, and drug prices have remained high for a long time. The original research drug companies and generic drug companies realize that they must cooperate to strive for policies and system design that are more conducive to industrial development. Subsequently, Hartke (Orrin Hatch), chairman of the U.S. Senate Labor Committee, who represents the interests of the original drug companies, and Representative Henry A.Waxman (Henry A.Waxman), a liberal Democrat who represents the interests of generic drug companies, jointly proposed the Drug Price Competition and Patent Period Compensation Act, which was signed and passed in 1984. For the first time, the bill sets up the system of extending the protection period of drug patent, the exemption system of infringement test and the data protection system of drug test, and the drug patent link system is also one of the important contents of the bill. Drug accessibility is the basic evaluation index of public health and well-being, and drug availability (mainly contribution of original research drugs) and affordability (mainly contribution of generic drugs) are the two ends of drug accessibility. The dynamic balance of interests at both ends of drug accessibility is regarded as the standard of the patent link system. The so-called drug patent link system has two meanings. One is the link between the approval of generic drug listing applications and the corresponding drug patent effectiveness review procedures; the other is the functional link between the drug supervision and administration department and the patent administration and judicial agencies. The effective coordination between the drug supervision and management department, the patent administrative department and the people's court is of key significance to the smooth operation of the system. The basic structure of the operation of the drug patent linkage system is to clearly stipulate the obligations of the original drug research enterprise in publishing patent information and the generic drug enterprise in making patent declarations, and to determine whether there is an objection to the patent issue based on the information provided by the two. If there is no objection between the two parties, the drug will be approved for listing according to the procedure; if there is an objection, the dispute will be resolved before the drug is listed by determining whether the patent is valid and whether the generic drug falls within the scope of patent protection. Therefore, the drug patent linkage system is often referred to as the "early resolution mechanism of drug patent disputes". The theoretical basis of the drug patent link system. Drug registration and approval is an important link to ensure drug quality and ensure the safety of human drug use. The drug registration approval system is also called the drug marketing administrative licensing system. The drug supervision and administration department examines the applications submitted by the drug marketing license applicants in accordance with the statutory marketing standards, and makes administrative licensing decisions in accordance with the law. Drug registration approval is an act of administrative empowerment, which is a legal act in which the administrative subject directly gives a specific administrative counterpart the legal qualification to engage in drug production and sales. The patent system is a legal monopoly granted by the state to the patentee for a limited period of time through the administrative power of the government for the purpose of encouraging innovation and promoting scientific and technological and social progress. Patent right is created by the legal system and granted by the administrative organ, but it still belongs to the category of private right in essence, and it is a property right with the nature of private right. From the aspects of system form, system purpose, system category and system operation mechanism, there is no inevitable connection between drug patent protection and drug marketing administrative license. However, based on the identity of protection and management objects, there is a certain connection between drug patent protection and drug registration approval. The reason why the drug marketing administrative license and drug patent protection should be linked is determined by the particularity of the drug itself. Based on the particularity of drugs, they are subject to administrative supervision and patent protection. The protection of drug patent rights and the administrative license for drug marketing belong to different fields and are under the management of different administrative departments, and the nature and responsibilities of the two departments are also different. From the perspective of external manifestations, there is no inevitable connection and cross-relationship between the two, and they operate under the framework of their respective institutional systems. However, the independent operation of the two systems will inevitably lead to conflicts between legal norms and interests. In order to overcome the shortcomings of the system caused by the independent operation of the two systems, make up for the defects of the system and reconcile the relevant conflicts of interest, it is necessary to consider the connection between the administrative licensing system of drug listing and the patent protection system through the corresponding system design. The design of drug patent link system skillfully combines the two, links the function between drug patent protection and administrative examination and approval, and can solve the system defects caused by the independent operation of the two systems. The independent operation of drug patent protection and drug marketing administrative licensing system, the separation of the functions of patent examination and authorization agencies and drug registration review and approval agencies, resulting in the lack of effective cooperation and communication between various departments, drug registration information and drug patent information asymmetry situation. In this case, patent applications for drugs are often earlier than drug registration, so patent infringement often occurs in the process of drug registration. According to the operating mechanism of the system, in principle, the legal status of drug patents does not affect the drug marketing license. The drug supervision and administration department has no right and obligation to examine the patent ownership status of the drug to be applied for marketing, nor is it obliged to notify the patentee of the patent ownership status of others in the drug registration application for drug invention and the statement that the patent of others does not constitute infringement. For the suspected infringement of drug marketing registration application, if the drug supervision and administration department can not determine whether the approval of the case, it may infringe on the registration rights and interests of the drug marketing registration applicant. According to the originality and novelty of drug material basis, drug registration application can be divided into new drug (also known as original research drug or patent drug) registration application and generic drug registration application. New drug registration applications have not been proven to be safe and effective, so detailed preclinical research data and clinical trial data are required to prove that the new drug meets the safety and effectiveness requirements. The application for generic drug registration is the imitation and imitation of new drugs. The safety and effectiveness of new drugs have been proved, so only bioequivalence test data need to be submitted. Under normal circumstances, only after the expiration of the effective patent protection period of the original research drug can the generic drug enterprise implement the new drug patent of the original research drug enterprise. Unlike the production and marketing of general products, the production and marketing of drugs need to go through a strict review process. Drug registration review and approval mainly carries out drug technical review to evaluate the safety and effectiveness of drugs, but not legal review. The legal status of the patent of the drug to be applied for listing does not affect the approval and marketing of the drug, and generic pharmaceutical enterprises take advantage of the shortcomings of this system to manufacture, sell and promise to sell patented drugs during the patent protection period of the original research drug, infringing the patent rights of the original research drug enterprises. In order to promote the timely listing of generic drugs, all countries have provided exceptions for patent infringement in their patent laws, providing a "safe harbor" for generic drug companies to exempt from infringement ". According to this, the original research drug company cannot initiate litigation procedures on the grounds that the registration of generic drugs infringes its patent rights, and can only seek judicial relief after the generic drugs are listed. At this time, it has caused irreparable losses to the original research drug's exclusive market interests. The act of drug listing registration declaration does not belong to the act of infringement of patent right, and the people's court usually does not make a determination on whether the declared generic drug falls into the scope of drug patent protection. However, drug marketing approval does not need to examine whether there is infringement of drugs, resulting in a large number of patent infringement of drugs on the market, a serious infringement of the legitimate interests of the original research drug pharmaceutical enterprises. At the same time, in the case of patent infringement, approved drugs will face the risk of stopping the production, manufacture and sale of infringing drugs, destroying the inventory of infringing drugs and huge compensation, which wastes social resources and increases social costs. Therefore, a system design is needed to protect the legitimate interests of the original drug research enterprises, provide pre-market rights relief channels for the original drug research enterprises, and prevent and stop the occurrence of patent infringement in the drug registration approval process. The main function of the drug patent linkage system is to provide a way to resolve patent disputes before the approval of generic drugs, and to improve the predictability and certainty of the listing of generic drugs. From the perspective of the Constitution, private property rights, as the basic rights of citizens, are protected by the Constitution, and any administrative organ should respect citizens' legitimate private property rights in accordance with the Constitution, and the exercise of public power shall not infringe upon citizens' legitimate private property rights. The drug patent link system meets the requirements of the constitution to protect private property rights, provides effective remedies when property rights are violated, and provides institutional guarantees for the realization of property value. Administrative license is a kind of beneficial administrative act, which is a kind of right or qualification granted by the licensing authority to the applicant. Whether or not to grant administrative license is related to the interests of the applicant, interested parties, the public and other subjects. The value orientation of administrative licensing is to protect the basic rights of citizens as the core, while taking into account the convenience of administrative management and improving administrative efficiency. One of the basic functions of administrative licensing is to protect citizens' personal and property safety and public interests. The administrative counterpart (the applicant) obtains the license, exercises the licensed rights, and obtains the relevant benefits. Such interests are likely to infringe upon the legitimate rights and interests of others, so it is necessary to go through strict procedural examination and grant relief procedures to interested parties before approval, such as setting up a hearing system in administrative licensing procedures. In the administrative license review procedure, in addition to examining the applicant's subject qualification (right ability and behavior ability), whether the application conforms to the legal procedure and form, and whether it conforms to the relevant conditions stipulated by laws and regulations, the licensing authority shall also examine whether it infringes upon the public interest or the interests of interested parties. When examining an application for administrative license, the licensing authority shall inform the interested parties if it finds that the administrative license matters are directly related to the vital interests of others. The applicant and the interested parties shall have the right to state and defend themselves, and the licensing authority shall guarantee the right of the interested parties to express their opinions. As the statutory administrative licensing authority for the marketing of drugs, the pharmaceutical supervisory and administrative department shall follow the basic principles and systems of the general procedures for administrative licensing. In the application procedure of drug marketing license, if the generic drug applied by the generic drug applicant involves a valid patent, the issuance of the marketing license by the drug regulatory department will have an adverse impact on the patentee of the new drug. The act of issuing a license to infringe on the patent right of others by the pharmaceutical supervision and administration department violates the basic spirit of the Constitution's provisions on property rights. Therefore, the drug supervision and administration department has the obligation and responsibility to ensure that the drugs issued with the marketing license do not infringe the patent rights of others, and provide sufficient time and relief opportunities for the patentee or interested parties to safeguard their rights. From the perspective of the division of functions of state agencies, the drug supervision and administration department does not have the functions, technology, personnel, professional knowledge and experience to review the validity of patent rights and judge whether it is infringing or not. It is not reasonable for it to preside over the hearing procedure to judge whether the generic drug to be applied for listing infringes the patent rights of others. From the point of view of economic benefit and efficiency, the examination and judgment of patent infringement is time-consuming and laborious, and it is not enough to be examined and judged by the drug supervision and administration department. From the point of view of right relief, patent right is the right granted by the patent administrative department, but it still belongs to the category of private right in essence, whether the infringement should be solved by the right holder through administrative or judicial channels. The drug patent linkage system can be regarded as an alternative procedure to the hearing procedure, and the patent right holder or interested party of the drug to be listed shall resolve the patent right dispute through administrative or judicial channels in the drug approval process. The advantages of this approach are: first, it is conducive to ensuring the registration rights and interests of drug registration applicants; second, it is conducive to ensuring that the drug marketing license issued does not infringe upon the legitimate rights and interests of new drug patentees; third, it is conducive to improving the efficiency of drug examination and approval by drug supervision and administration departments; fourth, it is helpful to prevent the risk of patent infringement in the listing of generic drugs. Development Status of China's Pharmaceutical Industry and Development Course of Drug Patent Link System Development Status of Chinese Pharmaceutical Industry in (I) In January 2020, China and the United States signed an intergovernmental economic and trade agreement, in which Articles 1.11 and 1.12 of Section III, "Drug-related intellectual property rights", became the direct impetus for the early resolution mechanism of drug patent disputes in China. From a deeper level analysis, the fundamental reason for promoting the establishment of this mechanism is that the stable and rapid development of my country's pharmaceutical industry, the health needs of the people, and the adjustment of industry policies have put forward higher requirements and new challenges to the drug patent protection policy. From 2016 to 2020, the number of applications for registration of domestic chemical innovative drugs in China has increased from 77 varieties to 258, and the number of varieties approved for clinical trials has increased from 91 to 298, showing a trend of rapid growth (see Figure 4 and Figure 5); since 2018, the number of class 1 chemical innovative drugs approved by China has also begun to grow explosively (see Figure 6). It is foreseeable that a considerable number of domestic innovative drugs will be approved for marketing in the next few years, and the need to strengthen domestic drug patent protection is becoming more and more urgent. Although the innovation ability of China's pharmaceutical industry has made great progress in recent years, there is still a significant gap compared with the world's advanced level. According to statistics, among the 840 small molecule chemical drugs approved in the world from 2005 to 2020, only 6% of the new drugs were approved for the first time in China, and only about 40% of the original drugs were registered and imported in China. At this stage, the innovative drugs approved for listing in China every year are still mainly imported drugs, and there are only a handful of domestic innovative drugs. The number of generic drug applications (ANDAs) accepted by the National Drug Administration's Drug Review Center each year is much larger than the number of new drug applications (NDAs) (see Figure 7). Therefore, although the overall innovation level of my country's medicine is steadily improving, it still belongs to and will be a large producer of generic drugs for a long time. How to encourage innovation while promoting the development of generic drugs is a huge challenge for my country's pharmaceutical patent protection; in addition, my country's pharmaceutical market Development space

2021-10-20

Viewpoint | Analysis of the Legitimacy of the Secret Period Agreement

With the rapid development of economy and society, the business competition among enterprises is becoming more and more fierce. Under this background, trade secrets have become the key protection object of each enterprise. In order to prevent the leakage of their own trade secrets, more and more enterprises often formulate strict confidentiality mechanism to prevent the leakage of secrets from damaging the interests of the company. Therefore, more and more employers in the labor contract to join the "secret period" clause, or a separate "secret period agreement" signed with employees, in order to achieve the goal of protecting business secrets, then the employer and employees signed the secret period agreement is effective? This article will be analyzed through the judicial practice of typical cases. The meaning of the first densification period and its constituent elements. The confidentiality period means that the employer can agree that the employee who has business secrets must notify the employer in advance before leaving the company and work for the employer for a certain period of time. After the expiration of the period, the confidential employee can officially leave the company. Within this period, the employer will transfer the confidential employee to a department that does not need confidentiality. Therefore, the secret period essentially belongs to the "advance notice period", which is a way adopted by the employer to protect trade secrets. According to the above definition of the densification period, it can be seen that the densification period can be understood from the following three levels: Applicable object: the secret period system is only applicable to employees who really need to keep the secrets of the enterprise. Because the system of the secret period eliminates the rights of employees to a certain extent, it must be necessary to be recognized. In practice, individual enterprises arbitrarily agree on the secret period in order to prevent the loss of employees, which is likely to be invalid by the court because of the lack of necessity. Demystization measures: that is, to adjust their jobs and change the relevant contents of the labor contract. Period required: no more than 6 months. According to the "Notice on Several Issues Concerning the Mobility of Enterprise Employees" of the former Ministry of Labor and some local regulations, the time limit for the removal of secrets is required to be no more than 6 months. Analysis of the Legitimacy of the Second Secret Period Agreement From the above definition of the demission period, we can find that the departure time stipulated in the demission period is contrary to the departure time stipulated in Article 37 of the the People's Republic of China Labor Contract Law, which stipulates "30 days in advance written notice (3 days in advance notice during the probation period). According to Article 37 of China's Labor Contract Law, "the laborer may terminate the labor contract by notifying the employer in writing 30 days in advance. The laborer may terminate the labor contract by notifying the employer three days in advance during the probation period". Article 37 of the Labor Contract Law is that the law gives workers the right to unilaterally terminate the labor contract. It is the law that gives workers the right to choose employment independently. No unit or individual may interfere, and the confidentiality period agreed between the employer and the worker is often It is longer than 30 days, does this belong to a restriction on the laborer's right to unilaterally terminate the contract? In other words, does the employer and the employee sign a confidentiality agreement for more than 30 days in accordance with the law? There are two different views on this issue in judicial practice, one is that the agreement on the period of confidentiality is valid, and the other is that the agreement on the period of confidentiality is invalid. 1. Judicial point of view 1: The confidentiality period agreed between the worker and the employer cannot be a cause that hinders the termination of the labor contract, and does not affect the termination of the labor relationship between the two parties. Legal basis: Article 37 of the Labor Contract Law stipulates: "The laborer may terminate the labor contract by notifying the employer in writing 30 days in advance. The laborer may terminate the labor contract by notifying the employer three days in advance during the probation period". Case 1: The Intermediate People's Court of Chengdu City, Sichuan Province held in the civil judgment (2014) Chengmin Zhong Zi No. 537 that "In this case, Fan Hong submitted a written resignation report to Qianfeng Company on November 12, 2012, and resigned after signing the" Letter of Confidentiality Undertaking for Leave/Leave "on December 27, 2012 as required by Qianfeng Company, thus terminating the labor relationship with Qianfeng Company. Fan Hong terminated the labor relationship with Qianfeng Company in accordance with the law, and the labor relationship between the two parties was terminated on December 27, 2012. ...... The Court held that in this case, Fan Hong's act of terminating the labor relationship was in line with the provisions of China's labor laws and regulations, and whether Fan Hong signed the confidentiality undertaking, whether he was in the confidentiality period and whether he fulfilled the corresponding confidentiality obligations in accordance with the agreement, etc., could not be the cause of hindering the dissolution of the labor relationship between the two parties, and did not affect the dissolution of the labor relationship between the two parties". Case 2: The Beijing No. 3 Intermediate People's Court held in the (2015) No. 07030 Civil Judgment of the Third Intermediate People's Court that "the laborer can terminate the labor contract by notifying the employer in writing 30 days in advance. The employer shall issue a certificate of dissolution or termination of the labor contract at the time of dissolution or termination of the labor contract. In this case, Duan Hongtao proposed to the Analysys Company to terminate the labor relationship on December 23, 2013. Analysys Company approved Duan Hongtao to work until January 24, 2014. Therefore, Analysys Company should issue a certificate of termination of the labor contract to Duan Hongtao in accordance with the law. Analysys appealed that Duan Hongtao did not notify Analysys in writing 6 months in advance of his resignation as agreed in the labor contract. Analysys did not agree to issue a resignation certificate for him, which has no basis and is not supported by this court". Therefore, the judicial view holds that "the laborer can terminate the labor contract by notifying the employer in writing 30 days in advance" is a mandatory provision of the Labor contract Law on the protection of the laborer's right to resign. The laborer has fulfilled the legal obligation by notifying the employer 30 days in advance, regardless of whether the laborer has signed the confidentiality undertaking, whether it is in the unclassified period and whether it has fulfilled the corresponding confidentiality obligation as agreed, neither can be a cause that hinders the termination of the labor relationship between the two parties, and does not affect the termination of the labor relationship between the two parties, that is, the termination of the labor contract is not based on the completion of the discharge period, and the "discharge period" is invalid due to violation of the provisions of the labor law. 2. Point 2: The employer may agree with the worker on the period of release on his own, and the worker shall abide by the commitment of the release period made by him. Relevant regulations: Article 2 of the original Ministry of Labor's "Notice on Several Issues Concerning the Mobility of Enterprise Employees" (Labor Department Fa [1996] No. 355) stipulates that "When the employer and the employee who has commercial secrets agree in the labor contract to keep commercial secrets related matters, it can be agreed within a certain period of time (no more than six months) before the termination of the labor contract or after the employee proposes to terminate the labor contract, adjust their jobs and change the relevant content of the labor contract". The first paragraph of Article 23 of the "Labor Contract Law": "The employer and the employee may agree in the labor contract to keep the employer's business secrets and confidential matters related to intellectual property rights". Case 1: Beijing No.2 Intermediate People's Court held in (2018) Beijing 02 Minzong No. 357 Civil Judgment (the employer is Beijing Branch of Ping An Bank Co., Ltd.) that "Xu Xiaoxi mailed a written resignation report to Beijing Branch of Ping An Bank on October 17, 2016, which was received by Beijing Branch of Ping An Bank on October 18, 2016. The ruling No. 466 of Jingxi Lauren Zhong Zi [2017], which has come into effect, finds that Ping An Bank Beijing Branch and Xu Xiaoxi have agreed to a six-month unsealing period in accordance with the law, and the labor relationship between the two parties shall be terminated after the expiration of the unsealing period. The" Letter of Commitment "approved by both parties has stated that the six-month period after I proposed to terminate the labor contract is my confidentiality period. Therefore, the court of first instance determined that the labor relationship between the two parties was terminated on April 19, 2017, and Ping An Bank Beijing The branch should issue a certificate of termination of the labor contract for Xu Xiaoxi, and handle the procedures for the transfer of files and social insurance, which is not improper". Case 2: Shanghai Pudong New Area People's Court held in (2016) Shanghai 0115 Minchu No. 1291 Civil Judgment (the employer is China Merchants Bank Co., Ltd. Shanghai Branch) that "the secret period means that the employer can agree that the person holding trade secrets must notify the employer in advance before leaving office and work for the employer for a certain period of time. The employee can formally leave office only after the expiration of the period. During this period of time, the employer can transfer employees to work in departments that do not require confidentiality to ensure that employees are no longer exposed to new trade secrets. Therefore, the essence of the confidentiality period is the advance notice period. China's current labor contract law stipulates that workers can terminate the labor contract by notifying the employer in writing 30 days in advance. However, the Labor Contract Law does not clearly stipulate that the employer shall not set a period of secrecy. During the performance of the labor contract, the plaintiff and the defendant signed a" secret agreement "with a period of no more than 6 months, which is a consensus reached by both parties after consultation and on the basis of equality and voluntariness. The agreement is the true intention of both parties, and the plaintiff and the defendant should abide by and perform according to the contract". Case 3: The Higher People's Court of Hebei Province held in (2020) Jimin Shen No. 5887 Civil Ruling (the employer is Shijiazhuang Branch of Bank of Hebei Co., Ltd.) that "the labor contract and confidentiality agreement signed by both parties are their true intentions. There is no violation of the validity of laws and regulations on the invalidity of the contract, and both parties shall perform their respective obligations in strict accordance with the contract. Among them, the agreement between the two parties on the period of secrecy means that the laborer shall notify the employer in advance before leaving the company, and the employer shall transfer the laborer to a department that does not need to be kept confidential for work injury, and the formal resignation shall not be allowed until the period of secrecy expires. The agreement does not violate the compulsory validity provisions of laws and regulations, and is also in line with the current situation of social employment". Therefore, the judicial view is that Article 37 of the Labor Contract Law does not prohibit enterprises and employees from agreeing on a confidentiality period, and that the 30-day notice period is the lower limit rather than the upper limit of the period. Moreover, the agreement on the secret release period is a consensus reached on the basis of equality and voluntariness of both parties. The agreement is the true intention of both parties. The employee has the right to dispose of his right to release, and both parties should abide by and perform according to the agreement. 3. Point of view analysis From the above cases, it can be seen that the validity of the secret period agreement is controversial in different cases, and both of the above views have their basis for existence. Among them, it is believed that the validity of the secret period agreement is mainly based on: First, the provisions of the "Notice on Several Issues Concerning the Mobility of Enterprise Employees" issued by the Ministry of Labor on October 31, 1996 are still in force, and the "Beijing Labor Contract Regulations" issued by the Beijing Municipal People's Government on December 24, 2001. Regulations of Shanghai Municipality on Labor Contracts issued by the Standing Committee of the Shanghai Municipal People's Congress on November 15, 2001 and the "Implementation of the Regulations on Labor Contracts issued by the Shanghai Municipal Labor and Social Security Bureau on January 5, 2004<上海市劳动合同条例>Some provinces and cities, such as the regulations on Labor contracts of Jiangsu Province (revised in 2013) issued by the standing Committee of the Jiangsu Provincial people's Congress on January 15, 2013, have also made clear provisions on it, so the agreement on the secret period is in line with the regulations; second, the agreement on the secret period is the result of equal consultation between employees and employers, which is the true intention of both sides, therefore, the point of view of the validity of the densification period agreement is adopted. Among them, it is considered that the agreement of the secret period is invalid, mainly based on the consideration of legal hierarchy and legal effect. First, from the perspective of legal level, according to the provisions of Article 88 of the Legislative Law, "the effect of law is higher than that of administrative regulations, local regulations and rules". The highest legal level in the relevant provisions on the "advance notice period" for employees to leave should be the Labor Contract Law. Therefore, the provisions of Article 37 of the Labor Contract Law should apply the notice period of 30 days in advance (three days in advance during the probation period). The provisions of Article 37 of the "Labor Contract Law" are legal rights granted to workers, that is, as long as the employer is notified in advance within the time limit stipulated in the "Labor Contract Law", it has the right to terminate the contract. Laws and regulations below the legal level cannot deprive and change the rights granted to workers by the law; second, from the perspective of legal effect, the Labor Contract Law came into effect in 2008, and the Notice on Several Issues Concerning the Mobility of Enterprise Employees came into effect in 1996. The local laws and regulations in Beijing and Shanghai all came into effect before 2008. According to the principle that the new law is superior to the old law and the upper law is superior to the lower law, the Labor Contract Law has the characteristics of both the new law and the upper law, so the provisions of the Labor Contract Law should be applied and the view that the agreement on the secret period is invalid should be adopted. The author believes that the protection of business secrets is the normal business needs of employers, and the law needs to achieve the maximum balance between the interests of employers and employees. If the secret period system is determined by both employers and employees through negotiation, there is no factor to destroy this balance. The author believes that the secret period system is not illegal, but in the current judicial practice, whether to support the extension of the advance notice period for the voluntary resignation of workers through the secret period agreement is supported, it is difficult to draw a single, definitive conclusion. Although the time limit for the voluntary resignation of workers under the time limit system has not been clearly affirmed in the form of laws and regulations, if the employer and the worker make an agreement through consensus, the agreement is not of course invalid, and factors such as whether the employer does protect the legality and rationality of trade secrets through the time limit for the time limit for the time limit for the time limit for the time limit for the time limit for the time limit for the time limit for the time limit for the time limit for the time limit for the release, and the time limit for the time limit for the time limit for the time limit. Can the salary bonus during the three-year-old period "change with the post"? Regarding the question of whether the salary and bonus during the secrecy period can be "salary changes with post", it still needs to be specifically analyzed in combination with the rules and regulations issued by the local human resources department, but so far the rules and regulations in most regions have not clarified this issue, for example, Article 2 of the "Notice on Several Issues Concerning the Mobility of Enterprise Employees" issued by the former Ministry of Labor only stipulates that employers can sign a confidentiality period of no more than six months with employees, but it does not stipulate whether the salary can be changed with the post during the confidentiality period. Article 18 of the "Beijing Labor Contract Regulations" issued by the Beijing Municipal People's Government and Article 15 of the "Shanghai Labor Contract Regulations" issued by the Standing Committee of the Shanghai Municipal People's Congress are the same. There are also some local laws and regulations that stipulate that the wages during the secret period shall be determined through consultation between the employer and the employee. For example, Article 27 of the regulations on Labor contracts of Jiangsu Province stipulates that the employer may, in the labor contract or confidentiality agreement, make an agreement on the advance notice period for the worker to terminate the labor contract, as well as the post adjustment and labor remuneration during the advance notice period. In addition, there are also some local laws and regulations that clearly stipulate that employers shall not reduce the labor remuneration of employees during the secrecy period. For example, Article 19 of the opinions on standardizing labor relations issued by Qingdao Municipal Bureau of human resources and social security (at present, the document has become invalid but has reference significance): when the employer and the employee with the obligation of confidentiality agree in the labor contract to keep trade secrets and confidential matters related to intellectual property rights, they may agree to adjust their work positions and change the relevant labor contract within six months before the termination of the labor contract. Content, but the employer shall not reduce the labor remuneration of the employee. Therefore, on whether the employee's salary bonus during the demystification period is</上海市劳动合同条例>

2021-10-19

Real estate perspective: the summary and interpretation of the key provisions of the "Jinan City Collective Construction Land Management Measures (Trial)".

Recently, the General Office of the Jinan Municipal people's Government issued the measures for the Administration of Collective Construction Land in Jinan (for trial implementation) (JZBF [2021] No. 21, hereinafter referred to as the "measures"). The aim is to further strengthen the management of collective construction land, standardize the examination and approval of the right to the use of collective construction land, prudently promote the entry of collective construction land into the market, and build a unified urban and rural construction land market. This paper attempts to interpret from the following aspects: Drafting background and process The "the People's Republic of China Land Management Law" (hereinafter referred to as the "Land Management Law") implemented on January 1, 2020 clearly stated for the first time the legal requirements for collective operating construction land to enter the market. Article 63 of the "Land Management Law" stipulates: "The overall land use planning, urban and rural planning (land and space planning) are determined as industrial, commercial and other operating uses, and the collective operating construction land is registered in accordance with the law, the owner of the land may hand it over to the unit or individual for use by means of transfer, lease, etc". The "Regulations on the Implementation of the Land Management Law" implemented on September 1, 2021 further refined and clarified the entry of collective operating construction land into the market. At the level of Jinan City, the 2021 "Government Work Report" included "improving the rural collective construction land management system and promoting the entry of collective operating construction land into the market" as a matter of deepening agricultural and rural reform in 2021. At the same time, in order to actively promote the entry of collective operating construction land into the market, Jinan City has also been actively establishing and improving the collective operating construction land management supporting system. In the above context, the Jinan Municipal People's Government closely combined with the actual situation of Jinan City, drafted the "Jinan City Collective Construction Land Management Measures (Trial)", the "Measures" has been by the Jinan Municipal People's Government Office on October 13, 2021 Officially issued, effective from December 1, 2021. Clarify the use scope of collective construction land In order to solve the problems of unclear use scope and weak operability of rural collective construction land in practice, the "Measures" further clearly define the use scope of collective construction land. Article 5 of the measures clearly stipulates the scope of project construction that can use collective construction land, namely: first, villager (resettlement) residential quarters (including supporting facilities); second, public welfare undertakings and public facilities projects; third, industrial storage, commercial, tourism, entertainment and other business projects; fourth, major (key) projects such as indemnificatory public rental housing determined by governments at or above the district and county level; the fifth is the bottom clause, that is, other construction projects that meet the requirements. Further standardize the approval process The second chapter of the measures stipulates the implementation scope, procedures, application materials and approval documents of the examination and approval of the right to the use of collective construction land. Article 8 of the "Measures" stipulates that the scope of examination and approval shall be other collective construction land except for collective business construction land such as industrial storage, commerce, tourism, and entertainment that enter the market in accordance with the law. Article 9 of the "Measures" and the application materials for land use shall be approved by the town government (sub-district office), the district natural resources department, and the district government in turn. Articles 10 and 11 of the measures further clarify the application materials and approval documents under the scope of examination and approval for the implementation of the right to the use of collective construction land. Detailed provisions on the entry of collective operating construction land into the market Chapter III of the measures specifies in detail the relevant concepts, implementation subjects, entry conditions and procedures to be performed for the entry of collective operating construction land into the market. Article 12 and Article 13 of the "Measures" respectively stipulate the concepts of collective operating construction land and collective operating construction land entering the market. Collective operating construction land refers to the collective construction land that is determined by the land space planning (overall land use planning, urban and rural planning) as industrial warehousing, commerce, tourism, entertainment and other operational uses, and the land ownership registration is handled in accordance with the law. The entry of collective business construction land into the market refers to the act that the land owner, through the open land market, hands over the land use right to other units or individuals for use in a certain period of time by means of transfer, lease, capital contribution (shareholding) and other paid means. Among them, the maximum service life of collective construction land shall be implemented with reference to state-owned construction land of similar use; the land lease period shall generally not be less than 5 years, and the maximum shall not exceed 20 years. Article 14 of the measures stipulates that the main body of collective business construction land entering the market is the land owner (collective economic organization), and Article 15 stipulates that the transfer methods of collective business construction land include competitive transfer methods such as bidding, auction and listing, and agreement transfer. Article 18 of the measures also clearly stipulates the conditions that should be met for the entry of collective business construction land into the market. The first is to meet the requirements of national industrial policy, land use, ecological environment protection, etc.; the second is to clarify the source of construction land, land property rights, clear boundary sites, and no ownership disputes; the third is to clean land or above-ground buildings, structures and other attachments The ownership is clear. It should be noted that the state's requirements for state-owned construction land must be "net land" transfer; fourth, it has the basic conditions required for development and construction. Article 22 of the Measures provides more detailed regulations on the procedures that should be performed for the entry of collective operating construction land into the market. In summary, there are mainly the following procedures: First, the main body of the market compiles the land entry plan; second, the land entry plan is submitted to the relevant departments for review; third, if the market is entered by agreement or lease, it needs to be reported to the district government for approval; if the market is sold in a competitive manner, after the corresponding approval, incorporate into the public resource trading platform, uniformly organize the public bidding of land, and the market entry subject issues the market entry transaction announcement as required; fourth, the market entry subject publicizes the land entry result or transfer result in accordance with the regulations; fifth, the market entry subject and the person who has obtained the land use right sign the "Collective Operating Construction Land Use (Lease) Contract". In addition, the right holder who has obtained the right to use collective construction land in accordance with the law can apply to the real estate registration agency in the district for registration of the right to use after paying the land price, related taxes and fees and value-added income. Clearly defined payment standards The Measures also stipulate the standards for the fees that should be paid for the entry of collective construction land into the market. Article 24 of the Measures clarifies that collective business construction land shall pay part of the land value-added income when entering the market, industrial storage land shall pay 20% of the net land income, and commercial service (commercial, tourism, entertainment, etc.) land shall pay 50% of the net land income. The net income from land shall be determined by the district governments with reference to the calculation method of the net income from similar state-owned construction land and in the light of the actual situation. In addition, Article 25 of the "Measures" stipulates that when collective business construction land enters the market, the person who obtains the land use right shall pay deed tax at 3% of the land transaction price. This provision is also a reference to the applicable tax rate for the payment of deed tax on the sale of state-owned land.

2021-10-18

Real estate perspective: the legal application of "back-to-back" clauses in construction subcontracts.

The raising of the problem In the field of construction projects, the general contractor and the subcontractor agree in the subcontract terms such as "payment according to the progress of the construction unit", "payment according to the proportion after the construction unit's funds arrive", "payment to the subcontractor on the premise of receiving the construction unit's project funds", because the general contractor takes the payment to the employer (construction unit) as the premise of its payment to the subcontractor, such clauses are therefore referred to as "back-to-back" clauses. In this way, the general contractor transfers part of the risk of the construction unit paying for the project to the subcontractor, and for whatever reason, it seems that it can use this as a reason to oppose the subcontractor's payment request before the construction unit fails to pay the project. But how should this provision be applied? Especially in the case that the general contractor neglects to exercise its creditor's rights against the construction unit or the two parties are in a payment impasse due to disputes, how should the subcontractor safeguard its legitimate rights and interests? view of judicial adjudication 1. If the "back-to-back" clause is valid and the agreed conditions for payment are not met, it shall be deemed that the conditions for payment are not met, such as (2020) Supreme Law No. 655: Wu Jikui and Ningbo Construction Engineering (contractor) for the construction of the construction of the internal contract relationship, Wu Jikui to Ningbo Construction Engineering issued a "letter of commitment", confirming that Wu Jikui contracted profit or income to achieve the way for Ningbo Construction Engineering to obtain and Feng Real Estate (contractor) of the 14 sets of housing sales rebates. The "Letter of Commitment" involved in the case agreed to use the 14 sets of housing sales of Hefeng Real Estate as Ningbo Construction to pay Wu Jikui contract profits or income conditions do not have. Although Wu Jikui has the right to claim the contract profit or income from Ningbo Construction Engineering, the conditions for Ningbo Construction Engineering to pay the contract profit or income to Wu Jikui have not yet been fulfilled because the project contractor and Feng Real Estate still owes Ningbo Construction Engineering money. 2. If the "back-to-back" clause is valid and one party fails to perform the relevant obligations, the back-to-back condition may be deemed to have been fulfilled, such as (2020) Supreme Law Minzong Judgment No. 106: The "Subcontract" and supplementary agreement signed by China Construction First Bureau and Qiyue Company are the true intentions of both parties. The content does not violate the mandatory provisions of the law and is legal and effective. The contract has made a "back-to-back" agreement that "the completed project shall be completed with the approval of the employer and the payment shall be audited and settled in advance, and the professional contractor may require the project contractor to make progress payment according to the proportion paid by the employer". as to whether the payment terms have been fulfilled, China construction first bureau proposed that both parties have agreed that China construction first bureau shall not have the payment obligation if Dadong construction fails to pay the project payment. However, the exemption of China Construction First Bureau shall be based on its normal performance of its obligations such as assisting in acceptance, settlement and collection. As the collection obligor of Dadong construction project funds, China Construction First Bureau has not provided valid evidence to prove that it has actively fulfilled the above obligations after the completion of the project involved in the case and before the lawsuit in this case, and has issued a collection, audit, settlement and collection for Dadong construction. On the contrary, the testimony of Fang Mou, a staff member of China Construction First Bureau, confirmed that China Construction First Bureau was negligent in performing its duties, refused the request of Qiyue Company, and never actively claimed rights to Dadong Construction. This situation belongs to the situation in which the parties improperly prevent the achievement of conditions for their own interests in the conditional contract stipulated in Article 45, paragraph 2 of the the People's Republic of China Contract Law, which is regarded as the achievement of conditions, therefore, the claim that the "back-to-back" condition has not been fulfilled and that the China Construction Bureau does not have the obligation to pay is not justified. Corresponding to the above cases, if the contractor does not fail to perform its obligations, it shall comply with the "back-to-back" clause. Such as (2019) Lu 01 Min Zhong No. 10060 involved in the contract agreed that "Party B (subcontractor) on the 25th of each month to report the completion of the project volume and output value of the current month, after Party A (general contractor) audit and confirmation depending on the owner's funds in place to pay Party B in proportion. After the completion of the project, the settlement of the project is audited by the owner, and the payment is made on a pro rata basis according to the availability of the owner's funds until the settlement" The court held that "the 'back-to-back' clause is by nature a conditional contract clause. This clause is a true expression of the meaning of the parties and there are no other factors that cause the clause to be invalid, and it shall be a valid clause. Lucheng Construction Company submitted settlement reports to China Construction Third Bureau Company both before and after the lawsuit, indicating that it actively claimed its rights to China Construction Third Bureau Company and that there was no delay in exercising its rights. In the case that the settlement value between the two parties has not been determined, it is impossible to determine the proportion and amount of the project payment payable by Lucheng Construction Company to Amber Labor Company, so the conditions for the payment of the project payment in dispute are not yet available." 3, the parties only agreed on "back-to-back" payment, as the agreement is not clear, should be in accordance with the law within a reasonable period of time to perform, such as (2021) Beijing 03 Min Zhong No. 7492: The contract stipulates that "the contract between Party A (the general contractor) and Hesheng Company (the owner) shall be attached to the contract, and the payment method shall be paid according to the back-to-back payment method of Party A and Hesheng contract, and it is agreed to accept the construction according to the technical requirements of Party A and Hesheng contract". Although both parties sign the contract and agree to use the back-to-back payment method, the contract is obvious violation of the contract, therefore, it should be determined that both parties to the contract do not know the payment method. In this case, the reasonable performance method of both parties can be determined according to the context of the contract and the relevant provisions of the law. However, since the project involved in the case was accepted and put into use many years ago, Qibaoliang Company filed the lawsuit in this case only after the warranty period of the project involved was exceeded, in view of Tongda Jiyuan Company's failure to submit sufficient evidence to prove that it had raised quality problems with Qibao Liang Company during the warranty period of the project involved, according to the opinions and spirit of relevant judicial interpretations, it should be deemed that the quality of the project involved installed by Qibao Liang Company is qualified, the payment terms have been fulfilled, and Tongda Jiyuan Company should pay the corresponding contract money to Qibao Liang Company. legal analysis Effect and nature of back-to-back clauses in (I) 1. Effect of "back-to-back" clauses There are a few views in judicial practice that deny the effect of "back-to-back" clauses on the grounds that they violate the relativity of the contract or violate the principle of fairness. However, the former confuses the contractual rights and obligations with the terms of payment attached to the contract, arguing that the premise of third-party payment as payment in this contract (subcontract) breaks through the relativity of the contract. The latter analyzes from a realistic point of view, and thinks that the clause obviously puts the subcontractor at a disadvantage and violates the principle of fairness, while ignoring the principle of fairness. It focuses on whether the two parties are in a considerable position at the time of the establishment of the contract. It is true that in the "buyer's market" environment of the contract relationship in the construction market, the subcontractor has realized the legal risks of the clause and has to bear the risks of the clause. Especially in the "A-refers to subcontracting" model, the general contractor is closer to the role of the project management company, the economic benefits in the designated subcontracting project is usually very limited, generally limited to management fees, through the "back-to-back" clause to avoid payment risk, it is understandable. Therefore, there is no case of showing fairness from the perspective of understanding, and even if it is obviously unfair, the legal effect it leads to is not invalid, but revocable. Therefore, there is no factual and legal basis for denying the validity of the "back-to-back" clause on the grounds that it violates the relativity of the contract or is obviously unfair. On the premise that the subcontract is valid, the "back-to-back" clause itself does not violate the mandatory provisions of laws and administrative regulations, and if it belongs to the true intention between the parties rather than the malicious collusion between the contractor and the general contractor to harm the interests of the subcontractor, it shall be a valid clause. Some local high courts clarify their effectiveness through answers and guidance opinions, such as Article 22 of the Beijing Higher People's Court's Answers to Several Difficult Questions in the Trial of Construction Contract Disputes, and the Anhui Higher People's Court on the Trial of Construction (II) Guiding Opinions on Legal Issues Applicable to Construction Contract Disputes. In judicial practice, most of them have recognized its effectiveness, but there are differences in how to apply it. 2. On the nature of the "back-to-back" clause One view is that the "back-to-back" clause is a conditional clause, broadly on the grounds that, from a practical point of view, the owner's payment is not inevitable, the owner's payment is an act for the owner, but an event for the general contractor, and whether the event occurs depends on the will of the owner and is therefore an uncertain fact. Another view is that according to the basic principles of the law and relevant provisions, under the premise of qualified project quality, the construction unit to pay for the project should be a definite fact, only the length of the payment period, which is also in line with the reasonable expectations at the time of the signing of the contract, so tend to "back-to-back" clause as a term clause. There is also a view that the clause is neither conditional nor time-limited, since the conditions and periods of time provided by law are conditions of entry into force, lapse or duration, while the "back-to-back" clause is not a condition of entry into force for payment, but merely an agreement between the parties on the time of payment. The above three views are based on objective facts, the logic of contract performance and the basic provisions of the law, and draw different conclusions about the nature of the "back-to-back" clause, forming a logical vortex. Therefore, in the judgment instrument on how the "back-to-back" clause applies, few instruments will analyze whether the clause is a conditional clause or a term clause, but directly identify it as a conditional clause or an explicit payment term agreement is unclear and then apply its corresponding legal consequences in conjunction with the facts of the case. From this perspective, different determinations about the nature of "back-to-back" clauses will also have different coping ideas and legal applications. The application of law in the case of the validity of the "back-to-back" clause of the (II). On the premise that the subcontract is valid, there are several legal logics in the application of the "back-to-back" clause: first, the agreement of the "back-to-back" clause should be observed under certain circumstances; Second, the general contractor's failure to exercise its rights to the employer to prevent the conditions from being fulfilled is deemed to have been fulfilled. Third, if "back-to-back" is recognized as the payment term, it may be deemed that the agreement is unclear. 1. Under certain circumstances, the subcontractor shall comply with the agreement of the "back-to-back" clause. The "back-to-back" clause belongs to the autonomy of the parties, does not violate the mandatory provisions of laws and administrative regulations, and is legal and effective. However, the "back-to-back" clause cannot be the permanent defense for the general contractor to refuse to pay, and the subcontractor should be bound by the "back-to-back" clause only under certain circumstances. Under the premise of the validity of the subcontract, there should be at least three requirements:(1) The content of the "back-to-back" clause should be clear, and the general contractor should not only agree to pay the subcontractor after the payment on behalf of the employer or the construction unit, instead, the specific proportion and scope of payment should be agreed, because the payment of construction works is generally phased and proportional payment, the general agreement will be regarded as the agreement is unclear. (2) The general contractor does not have the situation of idle exercise of rights, according to the principle of easy control of the near cause of proof, after the payment conditions are available, the general contractor should prove that it has actively claimed claims to the contractor. (3) The "back-to-back" clause can only be a defense for the general contractor within a reasonable period, I .e. within a reasonable period of time after the completion, delivery or expiration of the warranty period, the reasonable period can be determined in combination with the facts of the case. To the extent that all of these conditions are met, it may be tempting to assume that the subcontractor should be bound by the "back-to-back" clause. 2. If the general contractor is idle in claiming claims from the contractor, it shall be deemed that the terms of payment have been fulfilled. There are a large number of cases in judicial decisions that directly identify "back-to-back" clauses as conditional clauses, and the more typical ones include the above-mentioned (2020) Supreme Court Civil Final Judgment No. 106. Although the attached conditions are not the entry into force conditions stipulated by law, according to the interpretation method of "lifting weights to lightness", the entry into force of the contract can still be subject to conditions, and the performance of the contract can also be subject to conditions, the provisions of Article 159 of the Civil Code may be directly applied by analogy, and a conditional civil juristic act is deemed to have been fulfilled where the parties improperly prevent the achievement of the condition for their own benefit. If the general contractor is lazy in exercising the creditor's rights to the employer, the standard of "lazy in exercising" in the conditions for exercising the right of subrogation can be cited. As long as the general contractor does not exercise through litigation or arbitration, and the general contractor cannot prove that he actively claims the creditor's rights to the employer, he can be regarded as lazy in exercising the due creditor's rights, and then he can draw the conclusion that his improper prevention of the achievement of the conditions is regarded as the conditions, the subcontractor may request payment from the general contractor on this grounds. 3, "back-to-back" terms of the agreement is not clear, the general contractor should pay within a reasonable period of time. The "back-to-back" clause only takes the general contractor's receipt of the employer's payment as the premise of its payment to the subcontractor, but does not agree on the specific payment scope and proportion. The following disputes may arise between the parties:(1) when the employer pays the general contractor, the subcontractor can claim the right to the general contractor, and whether the employer must pay all the project funds as the premise;(2) As there are many different sub-projects in the construction projects, if the contractor pays the general contractor for the part other than the construction of the subcontractor, whether the subcontractor can claim the right to the general contractor. If the "back-to-back" clause is considered to be an agreement on the term of payment, the existence of the above dispute indicates that the clause itself is unclear. Article 501, paragraph 4, of the Civil Code stipulates: "If the time limit for performance is not clear, the debtor may perform at any time and the creditor may request performance at any time, but the other party shall be given the necessary preparation time. This clause establishes the legal rules that should be performed within a reasonable period of time in the event of an unknown period of performance, according to which the "back-to-back" clause is not clear, the subcontractor may request payment from the general contractor within a reasonable period of time. After the subcontractor obtains the due claim against the general contractor through litigation or arbitration according to the above ideas, if the general contractor has no ability to pay, and its delay in exercising the due claim causes damage to the subcontractor, the subcontractor may subrogate the general contractor's claim against the contractor in its own name, that is, the creditor's subrogation right stipulated in Article 535 of the Civil Code and Article 44 of the (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes. The application of law in the case of invalidity of back-to-back clauses in (III) If the subcontract is found to be invalid due to the violation of the law, the "back-to-back" clause shall also be invalid. According to Article 793 of the Civil Code: "The construction project contract is invalid, but if the construction project has passed the completion and acceptance, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project." This clause is based on the principle that restitution or restitution cannot be applied in the event of an invalid contract, so that its input is compensated at a discount by reference to the contractual agreement, and it does not lead to the conclusion that the time and conditions of payment are also applicable by reference, and the "back-to-back" clause does not apply by reference in the event of an invalid contract. At the same time, the subcontractor (the actual builder) may, in accordance with Article 43 of the Interpretation (I) of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts for Construction Projects, request the general contractor to pay and claim that the contractor shall bear joint and several liability within the scope of the outstanding payment. Summary The "back-to-back" clause is not a legal concept in the strict sense, and the application of the law and judicial interpretation is not uniform and clearly stipulated, but based on the general contractor, especially in the case of "A-finger subcontracting", the risk of price payment is avoided, and there are a large number of such clauses in practice. Most of the "back-to-back" clauses will be considered valid, and from the point of view of the application of the law, it should be analyzed in the light of the facts of the case whether the agreement of the clause is clear and whether the general contractor is lazy in claiming claims to the contractor.

2021-10-14

Construction Environmental Capital Law Review (No. 28). Analysis of the impact of centralized land supply on the market.

Counting the major events in the real estate market in 2021, there must be "centralized land supply". More than half of this year's centralized land supply has been launched, and the rules of land auctions have been continuously improved. What impact will it have on the market? 1 Centralized land supply proposal Since 2016, the central government has set the tone of "housing, not speculation", and the state has played a "combination fist" to regulate the real estate market. With the emergence of new land kings, the rules of land auctions have been adjusted one after another to curb the excessive rise in land and house prices from the supply side. 2 First round of centralized land supply As of the end of June, the first round of centralized land transfer in 22 cities was completed, with a transaction amount of more than 1 trillion yuan, a transaction area of about 0.11 billion square meters, a transaction floor price of about 9,600 yuan/㎡, and an average premium rate of 15%, showing a relatively high overall heat. From the perspective of specific cities, Beijing, Shanghai, Chengdu, Suzhou, etc. have relatively low transaction premiums due to strict land auction rules; Chongqing and Wuhan have relatively high transaction premiums due to loose land auction rules. In short, the popularity of plain cities and plots of average quality is still flat, while the core plots of hot cities and non-hot cities with better de-localization are still being scrambled, and the effect of "three stability" is not as good as expected. 3 The second round of centralized land supply and change On July 22, Vice Premier Han Zheng pointed out that it is necessary to speed up the improvement of the "stable land price" working mechanism, optimize the land auction rules, and establish an effective review system for enterprise land purchase funds. On August 11, the Ministry of Natural Resources held a closed-door meeting to adjust the second round of land transfer policies, strictly review the qualifications and funds of bidding companies, and the upper limit of the premium is 15% to ensure a certain profit margin for real estate companies. In addition, the Ministry of Housing and Construction has repeatedly mentioned that efforts should be made to establish a real estate linkage mechanism, promote Beijing's practice of "limiting house prices, controlling land prices, and improving quality", establish a qualification examination system for land purchase enterprises, and establish a mechanism for reviewing and refunding land purchase funds. In the second round of centralized land supply, several cities announced the postponement, and the rules for participating in the auction were adjusted, including limiting land prices, controlling premiums, banning waistcoats, limiting qualifications, checking funds, competing quality, etc. All localities strengthened the linkage of real estate, and the rules for land auction converged. Main rule changes Transfer progress and performance 4 Impact on the market The supply of residential land is based on solving the outstanding housing problems in big cities. Beijing and other big cities are inclined to affordable rental housing in land supply, and further increase the supply of public rental housing, affordable rental housing and shared property housing through centralized construction and allocation. In addition, it is a normal phenomenon that the heat of various urban plots is divided. In addition to the rules of land auctions, it is mainly affected by many factors such as economy, population mobility, and urbanization development. The government sets the rules, and the others are adjusted through the market mechanism, and there is a reasonable stratification from land price to housing price, so as to meet the diversified market demand. In a word, "stable land price, stable house price and stable expectation" are the objectives of real estate market regulation. Therefore, all localities have continuously improved the land auction rules: limiting land price from the supply side, controlling premium to control actual land price, limiting qualification of participating enterprises from the demand side, strictly checking capital sources to control effective demand, and "limiting land price + competition quality + lottery" to guide bidding enterprises to attach importance to development quality and ensure certain profit rate. "No vest + limited number of auctions" to protect more housing enterprises to participate in the interests of land auction, in addition to the state-owned enterprises and head housing enterprises, other regional housing enterprises will also get more opportunities. With the cost of land under control, it brings stable expectations for the real estate market. The author of this article: World Federation Appraisal, the country's leading land, real estate and asset appraisal institution, has a strong appraiser team, holds the qualifications of RICS, MAI, HKIS and other international societies, is committed to continuous professional leadership, deeply interprets the real estate market from a forward-looking perspective, and the content starts with the value of the territory public number, with continuous originality and excitement!

2021-10-13

Construction Engineering Environmental Capital Law Review (No. 27) | Shandong Releases "List of Contents of Whole Process Engineering Consulting Services" (Draft for Comments)

Source: Department of Housing and Urban-Rural Development of Shandong Province Notice on Soliciting Comments on the List of Contents of Whole Process Engineering Consulting Services (Draft) Municipal engineering cost management agencies and relevant units: In order to establish the whole process engineering consulting service standard system of Shandong Province, guide the cost consulting enterprises in our province to improve the whole process engineering consulting service ability, and standardize the practice behavior of cost consulting enterprises and their employees, Shandong engineering construction standard cost center has organized and compiled the list of contents of whole process engineering consulting service (Draft for comments), which is now widely soliciting opinions from the society. Please organize the municipal project cost management agencies to summarize the opinions of relevant units and send the electronic version of the opinions to the electronic E-mail wxg7058@shandong.cn before October 17. Contact: Wang Xiaoguang Tel: 0531-87087055 Annex: List of Contents of Whole Process Engineering Consulting Services (Draft for Comments).docx (See http://zjt.shandong.gov.cn/art/2021/10/8/art_119937_10297640.html for details) Shandong Engineering Construction Standard Cost Center 8 October 2021

2021-10-11

Real estate perspective: Can the person affiliated with the construction project directly claim the project payment from the contractor?

The raising of the problem Article 43 of the (I) of the Supreme People's Court on the Interpretation of Legal Issues Concerning the Trial of Construction Contract Disputes (hereinafter referred to as the "Construction Project Judicial Interpretation (I)"), which came into effect with the Civil Code on January 1, 2021, stipulates that If the actual builder sues as a subcontractor or an illegal subcontractor, the people's court shall accept it in accordance with the law. If the actual builder claims the rights of the contractor as the defendant, the people's court shall add the subcontractor or the illegal subcontractor as the third party in the case, and after finding out the amount of the construction project price owed by the contractor or the illegal subcontractor, the contractor shall be liable to the actual builder within the scope of the construction project price owed. The judicial interpretation basically continues the provisions of Article 26 of the 2004 Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes and Article 24 of the 2018 Interpretation (II) of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes, with the word "actual builder" used at the beginning of the sentence, and in the latter sentence only provides that in the case of subcontracting and illegal subcontracting, the actual builder can claim the project price to the contractor, then the same as the actual builder's affiliate, similar to subcontracting and illegal subcontracting, in the case of invalid contract can claim the project price to the contractor? There are different viewpoints in theory and judicial practice. judicial practice viewpoint There are two different views in the administration of justice. One is that the affiliated person is no different from the actual construction person in the case of subcontracting or illegal subcontracting. Article 43 of the (I) for Judicial Interpretation of Construction Projects should be applied by analogy. The affiliated person can claim the project price from the employer; the other is that the scope of application of the judicial interpretation should be strictly limited, the affiliated person shall not claim the project price from the contractor on this basis. Several cases are cited below to illustrate: (I) support the case of the affiliated person claiming the project payment from the contractor. 1. Supreme People's Court (2019) Supreme Law Minzong No. 329 Civil Judgment Referee's Point of View: Zhu Tianjun borrowed the qualification of Zhongding Company to sign a construction contract with Wulan County Land and Resources Bureau. As the borrowed qualification party, Zhongding Company lacks the true meaning of signing a construction contract with Wulan County Land and Resources Bureau. Zhongding Company does not have a substantive legal relationship with Wulan County Land and Resources Bureau. In this case, Zhu Tianjun, as the actual builder of the project involved in the case, formed a de facto legal relationship with the Wulan County Land and Resources Bureau in the process of concluding and performing the construction contract, and Zhu Tianjun had the right to claim the project payment from the Wulan County Land and Resources Bureau. 2. Supreme People's Court Supreme Law Minzong No. 353 Civil Judgment Referee's Point of View: The "Affiliation Agreement" signed by Zheng Guoping and Zhongqin Qinghai Branch clearly stipulates that Zheng Guoping is affiliated with Zhongqin Qinghai Branch to contract the project involved in the construction case. Although Yuntian Company does not approve the agreement, the "Statement" issued by the company on July 23, 2017 clearly states that the construction party is Zheng Guoping. The existing evidence in this case is sufficient to prove that Zhongqin Qinghai Branch has not fulfilled its construction obligations, but is only the nominal subject of the contract. Yuntian Company knows the fact that Zheng Guoping is affiliated with Zhongqin Qinghai Branch for actual construction. The construction contract of the construction project in this case was actually performed by Yuntian Company and Zheng Guoping, so the two parties formed a de facto relationship of rights and obligations. A series of contracts signed by Zheng Guoping in the name of Zhongqin Qinghai Branch shall be deemed invalid in accordance with the provisions of Article 1 of the judicial interpretation of the construction contract. Article 58 of the the People's Republic of China Contract Law stipulates the legal consequences of the invalidity of the contract, that is, the parties to the contract have the obligation to return the property, compensate for the discount, compensate for the loss, etc. In this case, Zheng Guoping, as the affiliated construction party, the materials and services it invested have been materialized into the project involved in the case, and its value has been determined through appraisal. Yuntian Company shall complete the obligation to return the property after the contract is invalid by paying the project funds to Zheng Guoping. Zheng Guoping has the right to claim claims against Yuntian and has the right to directly request Yuntian to pay for the project. 3. Jiangsu Provincial Higher People's Court (2016) Su Min Zhong Zi No. 46 Civil Judgment Referee's point of view: The affiliated person claims the project payment to the contractor, which is due to the contractor's acceptance of the work results of the affiliated person, resulting in the obligation to pay to him. However, there is no factual and legal basis for the affiliated person to require the affiliated person to bear joint and several liability for the contractor's non-payment of the project funds. 4. Supreme People's Court (2019) Supreme Law No. 1350 Chen Yajun and Jiangxi four built between the formation of affiliated relations. When dealing with unqualified enterprises or individuals affiliated with qualified construction enterprises to undertake projects, they should further examine whether the contract counterpart is in good faith and whether they know the affiliated facts at the time of signing the agreement to make corresponding determinations. If the relative does not know the affiliated facts and has reason to believe that the contractor is the affiliated person, priority should be given to protecting the bona fide counterpart. The agreement signed by both parties directly binds the bona fide counterpart and the affiliated person. At this time, an illegal subcontracting relationship may be formed between the affiliated person and the affiliated person. The actual builder can request the contractor and the employer to bear corresponding civil liabilities for the project price involved in the case. If the counterpart knows the affiliation when signing of the agreement, that is, the relative and the affiliated person, the affiliated person conspires to make a false intention, then the affiliated person and the contractor may directly form a de facto contractual rights and obligations relationship, the affiliated person can directly claim rights to the contractor. That is, no matter what kind of situation it belongs to, it is not possible to simply deny the right of claim for the price of the project enjoyed by the attached person only by the existence of an attached relationship. Therefore, the court of first instance held that the affiliated relationship could not apply the provisions of Article 26 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of construction contract disputes, and further determined that Chen Yajun was not the qualified plaintiff in this case and rejected his lawsuit, which was an error of applicable law. The (II) does not support the case of the affiliated person claiming the project payment from the contractor. 1. Civil Ruling No. 3613 of the Supreme People's Court (2017) Referee's point of view: In the case of affiliated construction, there are two legal relationships of different nature and content, one is the legal relationship of construction projects, the other is the legal relationship of the affiliated legal relationship, according to the principle of contract relativity, the rights and obligations of the parties should be dealt with separately according to the relevant contract. Jianbang Foundation Company has not provided evidence to prove that it has formed a de facto construction contract relationship with China Metallurgical Group Company. Therefore, even if Jianbang Foundation Company is identified as the actual constructor of the project involved in the case, it has no right to break through the relativity of the contract and directly claim the contract right of the construction project to China Metallurgical Group Company, which is not the counterparty to the contract. Article 26 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts for Construction Projects applies to illegal subcontracting and illegal subcontracting of construction projects, and does not apply to affiliated situations. Article 2 of the interpretation gives the subject of the right to claim the project payment as the contractor rather than the actual construction person, and the actual construction person under the condition that Jianbang Foundation Company claims to be attached can directly claim the project payment to the counterparty of the contract over the attached unit, which is not based on enough. 2. Supreme People's Court (2018) Supreme Law Civil Judgment No. 391 Referee's point of view: Even if Shen Guangfu, the subject of the case, is the actual construction person attached, the judicial interpretation does not clearly stipulate that the actual construction person attached has the right to claim rights against the contractor, and in this case the contractor has claimed rights against the contractor, its claim should not be supported. legal analysis According to the current legal system and its interpretation methods, whether or not based on Article 43 of the (I) for Judicial Interpretation of Construction Projects, there are different angles and bases for each person to claim the project price from the contractor, which can be analyzed from the following aspects: The legal analysis of the application of Article 43 of the (I) on the judicial interpretation of construction projects by the (I) affiliated persons Whether the affiliated person can refer to the provisions on subcontracting and illegal subcontracting, the analogy applies the provisions of Article 43 of the judicial interpretation, directly to the contractor to claim the price of the project, can be based on the legislative purpose from the perspective of the relationship between the interests of the affiliated person and the contractor to make a value judgment: 1. Analysis from the perspective of the affiliated person Whether it is subcontracting, illegal subcontracting or affiliation, although the contract is invalid, but without the confirmation of the court or arbitration institution, there is no contractual relationship between the contractor and the actual builder in the legal form, let alone the claim of contractual rights, otherwise there is a violation of the relativity of the contract. Even after the contract is confirmed to be invalid, according to the provisions of Article 793 of the Civil Code, if the construction project has passed the completion and acceptance, the contractor shall be compensated at a discount with reference to the contract on the price of the project. However, Article 43 of the (I) on Judicial Interpretation of Construction Projects allows breaking through the relativity of the contract under the circumstances of subcontracting and illegal subcontracting, which should be regarded as an exception to the relativity of the contract. The reason is to protect the vulnerable groups (especially the interests of migrant workers) who have performed the contract although they have not performed the contract. The Supreme People's Court also pointed out that breaking through the relativity of the contract is mainly applicable to the failure to pay of migrant workers, therefore, from the purpose of interpretation, the affiliated person and the other two types of actual construction is no different, the same need to protect, although the judicial interpretation is not clearly defined, but has the basis of the legislative purpose of analogy application. 2. Analysis from the Employer's Point of View In the case of affiliation, it is necessary to distinguish whether the contractor is aware of the facts of the affiliation, and then to determine whether the affiliation is contrary to the principle of protecting good faith if the affiliation claims to it. (1) The Employer does not know the facts of the affiliation. If the employer does not know the qualification of the affiliated party, from the perspective of bona fide protection of the employer, according to the principle of contract relativity and trust protection, it may come to the conclusion that the legal relationship between the affiliated party and the employer has formed a construction contract, and then it is concluded that there is no de facto construction contract relationship between the affiliated party and the employer, and the affiliated party directly requests the employer to claim the project price without a claim basis. However, from another perspective, both the affiliated person and the affiliated person enjoy monetary creditor's rights. According to the second paragraph of Article 545 of the Civil Code on the transfer of monetary creditor's rights, even if it is admitted that only the affiliated person can request the project price from the employer and both parties agree that the project payment creditor's rights cannot be transferred, the affiliated person can also transfer the project payment creditor's rights to the affiliated person, and the employer cannot use this as an excuse against the third person, therefore, even if the contractor is in good faith and does not know the facts of the affiliation, it is not impossible for the affiliation to directly claim the project payment from him. In addition, from a result-oriented point of view, the contractor pays the affiliated person within the scope of the project payment owed to the nominal contractor, and the project payment owed to the nominal contractor is eliminated at the same time, which can simplify the rights and obligations between the three parties. (2) The Employer knows the facts of affiliation If the contractor is aware of the fact of the affiliation, the contract signed by the contractor in name with the affiliated person shall be invalid for the false meaning of the accomplice of both parties, and the actual construction contract relationship between the affiliated person and the contractor hidden by the false meaning shall also be invalid because the affiliated person does not have the corresponding qualifications. In the case that both contract relationships are invalid, according to the general theory of judicial practice, the actual performance of the contract should be respected. The affiliated person, as the actual builder, has a de facto legal relationship between the construction contract and the employer. If the quality of the project involved is qualified, the affiliated person has the right to request the owner to pay the project fund according to the agreement of the construction contract. To sum up, from the balance of interests between the affiliated person and the employer, Article 43 of the (I) for Judicial Interpretation of Construction Projects is not without applicable space for the affiliated person, and can be applied by analogy based on the above reasons. (II) other paths for the affiliated person to claim the price of the project from the contractor. In addition to the application of the above-mentioned judicial interpretation to the contractor by analogy, there is also the possibility of realization through other paths, such as the right of subrogation and the right of claim for the return of unjust enrichment. 1. The attached person may claim the project payment from the contractor on the basis of the right of subrogation. Article 44 of the (I) for Judicial Interpretation of Construction Projects stipulates that if the subcontractor or the illegal subcontractor is lazy in claiming the due claims from the contractor, the actual contractor may claim the subrogation litigation for the defendant. Although the judicial interpretation does not make it clear that the affiliated person can exercise the right of subrogation, according to the general provisions of the General Principles of the Civil Code of Contracts on the right of subrogation, the right of subrogation is not limited by the subject. As long as the affiliated person is idle in claiming the project claim to the contractor, affecting the realization of the project payment claim enjoyed by the affiliated person, the affiliated person can exercise the right of subrogation to claim the project payment to the contractor. 2. The affiliated person may claim the project payment from the contractor on the basis of the right to claim the return of unjust enrichment. Whether it is the provisions of Article 793 of the Civil Code on invalid discount compensation for construction contracts, or Article 157 of the Civil Code on the invalidity of general legal acts and the return of property or discount compensation after revocation, in the case of invalid contracts, their essence is the return of unjust enrichment. Similarly, the affiliated person as the actual construction person, its labor materialization in a specific construction project, the contract is invalid, the abstract labor results can not be returned, can only be discounted compensation, which is also the legislative basis of the above-mentioned legal provisions. The construction project is constructed and completed by the affiliated person, and the contractor benefits as a result, so the affiliated person can get out of the dilemma of contract relativity and claim the project payment to the contractor through the right of return of improper profits. Summary Whether the affiliated party can directly claim the project price from the employer can be analyzed from two angles. One is to weigh the interests of the affiliated party and the employer on the basis of legislative purpose, and to analyze whether the provisions of Article 43 of the (I) for Judicial Interpretation of Construction Projects can be applied by analogy through legal interpretation and value judgment. The second is to jump out of the dilemma of applying the above judicial interpretation and contract relativity by analogy, attempt to claim the project payment from the contractor by exercising the right of subrogation or the right of return of unjust enrichment.

2021-09-28

Review of Environmental Capital Law for Construction Workers (No.26) | How to punish minor environmental violations after "no punishment?

Author: XU Wen (Hubei Provincial Department of Ecological Environment) Published in China Environmental Journal on January 29, 2021 In order to coordinate the promotion of epidemic prevention and control and economic and social development of ecological and environmental protection work, actively serve the implementation of the "six stability" and "six protection" work, optimize the business environment, the ecological environment department to further explore inclusive and prudent supervision, a number of provinces and cities across the country have established a "ecological environment minor violations of the list of matters not penalized." After the promulgation of the newly revised "Administrative Punishment Law", to correctly implement this system in environmental law enforcement and supervision, there are four issues that need to be focused on. Question 1: Under what circumstances does non-punishment apply? On January 22, 2021, the twenty-fifth meeting of the Standing Committee of the 13th National People's Congress voted and passed the newly revised "Administrative Punishment Law", which will be implemented on July 15, 2021. There are new changes in the provisions of the newly revised Administrative Punishment Law on "no punishment. Article 30 of the law stipulates: "Minors under the age of 14 who commit illegal acts shall not be subject to administrative punishment"; Article 31: "Mental patients and mentally disabled persons cannot recognize or control their own behaviors. If there is an illegal act, no administrative penalty shall be imposed"; Article 33: "If the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative penalty shall be imposed. Those who violate the law for the first time and have minor harmful consequences and correct them in time may not be given administrative punishment. If the party has evidence sufficient to prove that there is no subjective fault, no administrative penalty shall be imposed. Where laws and administrative regulations provide otherwise, such provisions shall prevail". Paragraph 3 of Article 57: "Upon the conclusion of an investigation, the person in charge of the administrative organ shall examine the results of the investigation and make the following decisions according to different circumstances: ...... If the facts of the (III) violation cannot be established, no administrative penalty shall be imposed". Judging from the relevant provisions of the newly revised "Administrative Punishment Law", the application of "no punishment" has been expanded, especially the addition of "first violation of the law and minor harmful consequences and timely correction, no administrative punishment may be imposed" and "If the parties have evidence sufficient to prove that there is no subjective fault, no administrative punishment shall be imposed. In view of the fact that the newly revised Administrative punishment Law has expanded the application of "no punishment", it is necessary to further revise and improve the list of items not to be punished for minor violations of ecological environment according to the newly revised Administrative punishment Law. Question 2: Does non-punishment need to be made after the case is filed? As many provinces and cities across the country have successively issued a list of items that will not be punished for minor violations of the ecological environment, it can be expected that there will be a number of clues to cases that will not be punished. What kind of investigation procedure should be applied to such case clues will become a realistic but must be solved problem in front of the investigators. The first is whether the case trail of non-punishment needs to be filed. In this regard, neither the pre-revised Administrative Penalty Law nor the newly revised Administrative Penalty Law provides for it. Article 22 of the "Environmental Administrative Punishment Measures" stipulates: "The environmental protection department shall conduct a preliminary review of suspected violations of environmental protection laws, regulations and rules, and decide whether to file a case within 7 working days. After review, if the following four conditions are met, the case shall be filed: (1) There is a suspected violation of environmental protection laws, regulations and rules; the (II) should or can impose administrative penalties in accordance with the law; the (III) is under the jurisdiction of the agency; (IV) violations occur No more than 2 years from the date of discovery, unless otherwise provided by law. If the illegal act is in a continuous or continuing state, it shall be counted from the date of the end of the act." The four conditions for filing a case stipulated in the Environmental Administrative Punishment Measures need to be met at the same time. According to this article, if the clues of the case are found to be unpunished after investigation before filing the case, they may no longer meet the conditions for filing the case. Therefore, the decision not to impose a penalty does not have to be made after the case has been filed. In law enforcement practice, if the case is investigated and found to be in line with the situation of no penalty, how to deal with it? The author suggests that if the case is found to be in line with the situation of no penalty after the case is filed, the case should be revoked. Question 3: Does it need to make a decision not to punish? The applicable situations of no punishment are divided into two categories: one is that the administrative counterpart has illegal acts, but because of the existence of legal reasons, the offender who should be punished is exempted from the application of administrative punishment. Second, the fact that the administrative counterpart violates the law cannot be established and will not be punished. In both cases, although the administrative counterpart does not have to apply administrative penalties, it may still have its creditworthiness affected or be at a disadvantage in the relevant civil and commercial rights and obligations. For example, some listed companies suspected of violating the law must be announced by law enforcement agencies, which may have adverse effects on them. The "No Punishment Decision" can eliminate the adverse effects to a certain extent. Therefore, from the point of view of standardizing the handling of cases and safeguarding the legitimate rights and interests of the administrative counterpart, the author suggests to make and serve the "decision of no punishment" to the administrative counterpart. In view of the fact that non-punishment itself is also a specific administrative act, which will have an impact on the rights and obligations of the administrative counterpart, the administrative counterpart should also be given the right to initiate reconsideration or litigation in the "No Punishment Decision. Question 4: How to standardize the implementation of non-punishment? Non-punishment involves not only the administration of the ecological environment department according to law, but also the protection of the legitimate rights and interests of the administrative counterpart. Although neither the Administrative punishment Law nor the measures for Environmental Administrative punishment specify the implementation process of non-punishment, the author believes that the implementation of non-punishment must be standardized, and if it is implemented at will, it will bring certain risks to the personnel handling the case. How can we achieve standardized implementation? The investigation of the acts targeted by "no punishment" should be treated equally with the investigation of the acts targeted by "to be punished. This equal treatment means that the normative requirements of case investigation also apply to the implementation of "no punishment. First, no punishment needs to be supported by evidence. The ecological environment department must have conclusive evidence to prove that an act is not punishable. There must be evidence of punishment and evidence of non-punishment. In particular, where the "List of Matters Not to be Punished for Minor Violations of Ecological Environment" has been promulgated, solid evidence materials should be used to support the clues of the case as not to be punished according to the detailed identification conditions. Second, non-punishment requires the establishment of relevant implementation rules. The ecological environment department shall establish the implementation process of no penalty. Clarify which department will initiate the non-punishment, the internal approval process, how the non-punishment decision will be made and whether it will be publicized. Third, no punishment needs to be filed. Non-punishment is also a handling decision formed during the investigation of the case. Therefore, the evidence collected during the investigation and the documents formed during the investigation also need to be filed. This is not only a requirement for standardizing law enforcement, but also a necessary step to reduce the risk of case-handling personnel performing their duties.

2021-09-26

Construction Engineering Environmental Capital Law Review (No. 25).......................................................................

Source: Zhonglu Energy Legal Service Circle Original link: Preliminary Study on Legal Risk Control of Wind Power Photovoltaic New Energy Enterprises New energy refers to renewable energy developed and utilized on the basis of new technologies, including solar energy, biomass energy, wind energy, geothermal energy, etc. The new energy that can form an industry in China mainly includes hydropower, wind energy, biomass energy, solar energy, geothermal energy, etc. China's new energy industry started late, but it has developed rapidly, especially in the field of wind power and photovoltaic, and has achieved world-renowned results. According to relevant statistics, in 2019, the cumulative installed capacity of wind power nationwide was 0.21 billion kilowatts, with wind power installations accounting for 10.4 percent of all power generation installations, and the cumulative installed capacity of photovoltaics in 2019 has also reached 205.7 gigawatts. Wind power and photovoltaic new energy have their own characteristics in the development, construction, and operation. At the same time, due to the greater impact of policies, the risks they face, especially legal risks, are more prominent. Take the policy of full-capacity grid-connected power generation of wind turbines at the end of 2020 as an example, otherwise they cannot enjoy the approved electricity price. Due to the epidemic situation and the influence of wind turbine supply factors in 2020, it is expected that a large number of wind power projects will not be able to complete the full-capacity grid-connected on time in 2021. At that time, these projects may not enjoy the approved electricity price, causing huge losses and a large number of legal disputes to relevant new energy enterprises. The purpose of this paper is to sort out the legal risks and countermeasures of new energy enterprises in the development, construction and operation of wind power and photovoltaic, so as to provide some reference for new energy enterprises in the prevention and control of legal risks. At the same time, all my special legal risk prevention and control service teams and products can carry out professional legal service work for wind power and photovoltaic new energy projects. Overview of Legal Risks of Wind Power Photovoltaic New Energy Enterprises Compared with traditional power generation projects, wind power and photovoltaic new energy power generation projects have great advantages in environmental protection, energy saving, emission reduction and sustainable development, which determine their broad development space and good development prospects. With the support of subsidies and various preferential policies, wind power and photovoltaic new energy power generation projects have gradually become investment hotspots in the energy field, and have achieved very good development results. Wind power and photovoltaic projects have also exposed some problems in the process of rapid development, such as reselling project indicators, projects that have not entered the national construction indicators and cannot obtain project subsidies, projects are located in the ecological red line area, related fans and photovoltaic equipment are removed, and wind power and A series of problems such as the destruction of forest land caused by the development of photovoltaic projects. These problems reflect that wind power and photovoltaic new energy projects have many legal risks, involve a wide range, are affected by policies and are difficult to prevent and control. The occurrence of these problems also reflects that the legal risk identification and legal risk prevention and control work of wind power and photovoltaic projects by wind power and photovoltaic new energy enterprises is not perfect, and it is necessary to further strengthen the work in this area. The legal risk profile of wind power and photovoltaic new energy has the following characteristics: (I) legal risk points Wind power and photovoltaic new energy projects generally go through three stages of development, construction and operation from the signing of the development agreement to the complete termination of the whole project. In these three stages, there are many significant legal risk points, but in terms of contract risk, there are more than a dozen types of contracts involved in a project, and there are many legal risk points in these dozen contracts. Taking the construction contract as an example, if the performance cannot be completed according to the construction period agreed in the contract, this legal risk is the legal risk of the construction period breach from the contract agreement, but it may cause the electricity price approved by the original project to no longer enjoy, and its impact on the owner and the project may be subversive. If a new energy project does not have subsidies, the whole project will face huge losses, the amount of loss may be hundreds of millions or more than one billion yuan. In this case, whether to claim for the expected loss of interest and how to claim for compensation are issues that need to be carefully studied. Complicated (II) legal relationships The development, construction and operation of wind power and photovoltaic new energy projects face complex legal relationships, involving civil, administrative and criminal legal relationships. In many cases, it involves the interlacing of criminals and civilians. For example, the construction unit lacks the professional knowledge of valuable trees in the process of construction project. Although it has obtained the cutting certificate, it has cut down the protected valuable trees and is subject to criminal punishment in violation of the relevant provisions of the criminal law. At the same time, it also violates the relevant environmental protection provisions of the contract with the owner, and needs to bear corresponding civil liability. The various stages of wind power and photovoltaic new energy projects are linked together, and if there is a problem with one link, it may lead to a series of defaults. If the fan supplier is unable to perform the supply on schedule due to problems such as production capacity, resulting in the project not being connected to the grid at full capacity on schedule, the owner abandons the project, and the construction party, technical service party and material supplier who have a contractual relationship with the owner will claim compensation from the owner, resulting in a series of breach of contract and a series of claims. (III) policy has a big impact The success or failure of wind power and photovoltaic projects is highly related to policies, such as the ''Notice of the State Forestry and Grassland Administration on Regulating the Use of Forest Land in the Construction of Wind Farm Projects', ''Notice of the National Development and Reform Commission on Improving the Wind Power Feed-in Tariff Policy'' and ''About 2020 "Notice on Matters Related to the On-grid Tariff Policy for Photovoltaic Power Generation" and other departmental policies have a huge impact on the development and specific construction. At present, the wind power rush at the end of 2020 is due to policy factors. The wind power rush has caused a shortage of hoisting equipment. A large number of hoisting equipment owners unilaterally tore up the contract and asked the owner and the construction party to raise the price by a large margin. The owner and the construction party were forced to agree to the price increase requirement of the hoisting equipment owner due to the pressure of grid connection at the end of the year, thus bringing great internal audit risk and legal compliance risk to new energy enterprises. Comprehensive wind power and photovoltaic new energy projects due to its many legal risk points, complex legal relations, large policy impact and other reasons, resulting in wind power and photovoltaic new energy enterprises face higher legal risks, the need to carry out legal risk prevention and control work is also more onerous. Legal risks and responses in the development phase The wind power and photovoltaic development stage is the stage in which the corresponding work is carried out with the goal of obtaining the approval and filing documents of wind power and photovoltaic projects. In practice, the main tasks at this stage include project selection, signing of development agreements, project site selection, wind and light metering, obtaining approval and filing documents and supporting documents for the project. Wind power and photovoltaic projects face the following legal risks during the development phase: Legal Risks of (I) Development Agreements The development of wind power and photovoltaic projects first needs to obtain the development right of the project. The form of obtaining the development right is to sign the development agreement of wind power and photovoltaic projects with the government. However, there are the following risks in signing wind power and photovoltaic project development agreements with the government: first, the signing subject is illegal, especially the signing subject of the government. Second, the signed content is illegal, such as government tax incentives, policy support and other provisions may be invalid due to violation of relevant national laws and regulations. Third, there are situations where governments in the same development region sign development agreements with different investment entities at the same time. Fourth, the legal risks arising from the failure to renew the development agreement in time after its expiration. Fifth, the legal risks arising from the signing of the development agreement that are too principled and have no specific enforceable content. Sixth, the legal risk of unilateral default by the government. Legal Risks of (II) Project Site Selection The issue of land use for wind power and photovoltaic projects is a major issue related to whether the project can be implemented on the ground, and it is also a problem that needs to be solved in the development stage. There are also a lot of legal risks in this work. First, the project site does not conform to the land use planning and urban and rural planning. Second, the site selection and land use of the project are within the ecological red line. Third, the project site selection and land use have not been checked for sensitive factors, resulting in the site selection and land use within the scope of sensitive factors. Fourth, there is a lack of a systematic and perfect working procedure for site selection and investigation, which cannot guarantee the effect of investigation. (III) projects are not included in the annual development programme Wind power projects shall be included in the annual development plan prior to approval. The fourth paragraph of Article 2 of the notice of the State Energy Administration on further improving the management of the annual development plan of wind power stipulates that the projects included in the annual development plan shall enjoy the project electricity price subsidy according to the relevant management regulations. At the same time, it is stipulated that projects included in the annual development plan shall be approved in the current year, and projects that cannot be approved shall be canceled. The author understands that some local governments have approved wind power projects beyond the annual development plan in the past few years, resulting in the inability to enjoy subsidies after the completion of the project, causing huge losses to new energy companies. Legal Risks of Obtaining (IV) Supporting Documents In the development stage of wind power and photovoltaic projects, a series of approval documents and departmental opinions such as environmental assessment, soil and water conservation, ore compaction, cultural relics and land are required. The legal risk of obtaining supporting documents is that the approval documents are not fully obtained. The second is the use of false materials in the process of obtaining approval documents. Third, after obtaining the approval document, the original approval document has expired before approval and filing, and no new approval document has been processed. In view of the above legal risks in the development stage, it is necessary to do a good job in the legal risk control of the signing and performance of the development agreement, pay attention to the investigation of the project land and sensitive factors, pay attention to whether the project is included in the annual development plan, and obtain all supporting documents in the development stage in a timely and comprehensive manner. Legal Risks and Countermeasures in the Construction Stage The wind power and photovoltaic construction stage is the stage of transforming new energy projects from drawings to reality. In practice, this stage mainly includes the handling of construction procedures, project bidding, land acquisition, construction contract performance, settlement, project acceptance, etc. Wind power and photovoltaic projects face the following legal risks during the construction phase: Legal Risks of (I) Construction Procedures According to the construction law and relevant laws and regulations, the construction project planning permit, construction permit and other procedures should be handled before the construction of the project, otherwise it will face legal punishment. However, in the actual operation process, due to the short construction period, the requirements of the grid-connected power generation policy on time, the lack of strict internal control and other factors, the wind power and photovoltaic projects will start construction without completing the procedures, the relevant construction procedures shall be handled while building. The legal risks faced by the construction procedures are, first, the risk of invalidity of the construction contract. Second, there is a risk that the assets of the construction project will be confiscated. Third, the risk of administrative and criminal penalties. Legal risks in (II) bidding Wind power and photovoltaic as new energy power generation projects, the project survey, design, construction, supervision, and the procurement of important equipment and materials, reaching a certain limit is the scope of legal bidding. If the project really needs to adopt non-bidding methods, it should be submitted to the approving authority for approval. The legal risks faced by bidding are, first, to avoid the invalidity of contracts and administrative penalties caused by public bidding. Second, the contents of the bidding documents are set unreasonable, such as winning the bid at the lowest price, resulting in a large number of disputes and disputes in the performance of the contract. The third is to restrict and exclude potential bidders with unreasonable conditions. Fourth, the bidding work will be carried out if the bidding conditions are not met. Five is the risk of substantive negotiations with the winning bidder and not signing the contract in accordance with the tender documents. Sixth, the risk of not contracting with the winning bidder. Legal Risk of (III) Project Management Project construction management involves, duration, quality, safety, cost, environmental protection and other aspects, any of which will cause disputes, and then affect the progress of the project and the realization of the project objectives. The legal risk of project management is the legal risk of subcontracting and subcontracting. Second, the legal risk of the supervisor failing to strictly fulfill the obligation of supervision. Third, the legal risk of contract changes caused by the price increase of materials and equipment in the course of contract performance. Fourth, the legal risks caused by migrant workers' wages. Fifth, the project is not completed on time, resulting in the risk of a policy reduction in electricity prices. (IV) the legal risk of project acceptance and project settlement. For wind power and photovoltaic new energy projects, after the project passes the trial operation, it is not only necessary to complete the completion acceptance of the main body of the five parties, but also to carry out special acceptance of fire protection, environmental protection, archives and so on. As the final stage of the work project, the project settlement is a more complex process, which directly reflects the various problems in the project process. The legal risk of project acceptance and project settlement is the legal risk of the project being put into use without acceptance. Second, the legal risk of omission of special acceptance. Third, the legal risk of the contractor's request for settlement "based on the price submitted for review. Fourth, the legal risk of the contractor refusing to sign and approve the statement. Fifth, the legal risk of filing a claim after the settlement of the project. In view of the legal risks in the above construction stage, it is necessary to do a good job in the prevention and control of legal risks in construction procedures and project construction management, carry out project recruitment and contract signing in accordance with laws and regulations, carry out special acceptance, avoid the use of implied terms for the settlement of the submitted price, and clarify the settlement method and basis. Legal Risks and Countermeasures in Operation Phase The wind power and photovoltaic operation stage is the stage of obtaining income through the operation of new energy projects. In practice, this stage mainly includes the handling of operation procedures, the signing of power purchase and sale contracts, the maintenance of power facilities, and the declaration of subsidies. Wind power and photovoltaic projects face the following legal risks during the operational phase: The legal risk of (I) operation procedures involving the network experiment. Failure to apply for a power business license, failure to enter into a grid-connected scheduling agreement and a contract for the purchase and sale of electricity, and failure to conduct a grid-related experiment, I .e., the legal risk of grid-connected power generation. The legal risk of administrative penalties for starting a technical transformation without going through the relevant operational technical transformation procedures. Legal risk of failure to strictly handle the quality assurance procedures of (II) fans During the operation of wind power, it involves the review and acceptance of the quality assurance of wind turbines. This work is to review whether the wind turbine supplier has fully fulfilled the obligations of the quality assurance period according to the contract. If this work is not comprehensive and strict, it will leave significant risks and legal risks for new energy enterprises in fan equipment. Legal risk of (III) operation management The legal risks involved in the division of property rights with the grid company during the operation of wind power and photovoltaics. Legal risks involved in the maintenance of operational assets. Legal risks involving operational safety and environmental protection. Involves the legal risk of infringement caused by the lack of performance of operational responsibilities. Involves the legal risk of subsidies not being declared and received in a timely manner. In view of the legal risks in the above operation stage, it is necessary to do a good job in handling the procedures and licenses in the operation stage, improve the quality assurance procedures and requirements of the wind turbine, perform their duties and do a good job in the management of the operation period, and declare and receive new energy subsidies in a timely manner.

2021-09-24

Construction Environmental Capital Law Review (No. 24)... Three key points to improve the ecological environment damage compensation system.

The compensation system for damage to the ecological environment is a new thing in the reform of the ecological civilization system. In recent years, especially since the implementation of the "Several Provisions of the Supreme People's Court on the Trial of Compensation Cases for Ecological and Environmental Damage (Trial)" (hereinafter referred to as the "Several Provisions"), local courts have actively carried out trial work and accumulated useful experience. Environmental violations often trigger administrative, criminal and civil liability at the same time. The author believes that the people's courts should hear eco-environmental damage compensation cases within the civil litigation system, clearly advocate the prerequisites for eco-environmental damage compensation, the specific circumstances of the application of eco-environmental damage compensation, and the jurisdiction level of judicial confirmation of the consultation agreement, so as to achieve coordination without mixing, taking into account the laws of judicial operation and the needs of eco-environmental protection, and constantly develop and improve the eco-environmental damage compensation system. A clear claim to the ecological environment damage compensation preconditions. For illegal and criminal acts that damage the ecological environment, the legal path to investigate the responsibility of the relevant subjects for restoration is not limited to civil compensation, but can also be achieved through administrative law enforcement, including administrative penalties, administrative orders and the implementation of administrative performance. Article 50 of the Administrative Compulsory Law establishes the administrative performance system, the Water Pollution Prevention and Control Law, the Solid Waste Pollution Prevention and Control Law, the Soil Pollution Prevention and Control Law, the Radioactive Pollution Prevention and Control Law, the Forest Law, the Grassland Law, the Flood Control Law, the Water and Soil Conservation Law, and the Sea Area Use Management Law There are also relevant specific provisions in separate environmental resource laws. For example, Article 79 of the Law on the Prevention and Control of Environmental Pollution by Solid Waste stipulates that units that produce hazardous waste shall store, utilize, and dispose of hazardous waste in accordance with relevant national regulations and environmental protection standards, and shall not dump or stack them without authorization. Article 113 stipulates that in violation of the provisions of this law, if a hazardous waste generator fails to dispose of the hazardous waste generated by it in accordance with the regulations and refuses to make corrections after being ordered to make corrections, the competent department of ecology and environment shall organize the disposal on behalf of the hazardous waste. The generator shall bear; if he refuses to bear the disposal expenses, he shall be fined not less than one time but not more than three times the disposal expenses. Based on the principle of administrative law that "law cannot be done without authorization and legal duties must be done" and the requirements of modern environmental governance system of "government-led and administrative priority", and in view of the fact that administrative organs claim civil rights as the "dual identity" of the right holder and the subject of law enforcement, it may lead to the untrue expression of the intention of the obligor of compensation. Specifically, the administrative agency has investigated the administrative legal liability of the compensation obligor in accordance with the law, and there are litigation claims that cannot be covered by the administrative legal liability (such as service function loss, appraisal and evaluation fees, etc.), before applying for confirmation of the compensation negotiation agreement or filing an ecological environment Damage compensation lawsuit. In other words, the administrative agency claims compensation for ecological damage through civil litigation procedures, and it should be based on the premise of exhausting administrative law enforcement methods. II. Clarify the specific circumstances under which compensation for damage to the ecological environment is applicable According to the scope of application determined by the "Eco-Environmental Damage Compensation System Reform Plan", the "Several Provisions" stipulate three situations in which compensation for ecological environmental damage can be claimed, that is, major, and particularly major environmental emergencies occur; environmental pollution and ecological damage events occur in key ecological function zones and prohibited development zones designated in the provincial main function zone planning; other serious consequences affecting the ecological environment occur. Among them, combined with the specific content of the first two situations, as well as the system design of the "Several Provisions" on the subject qualification of the right holder, the level of jurisdiction of litigation cases and the composition of the trial organization, the third situation should be equivalent to the first two situations. That is, it belongs to a more serious environmental pollution and ecological damage incident. Therefore, the third situation can be clearly defined as "other serious situations such as crimes of destroying the protection of environmental resources that cause serious consequences", in order to save limited judicial resources and maintain the seriousness of the ecological environment compensation system. Third, clarify the jurisdictional level of judicial confirmation of the consultation agreement. According to the current legal provisions, it is confirmed that the mediation agreement case shall be under the jurisdiction of the grass-roots court and the judge shall be heard alone. The first paragraph of Article 20 of the "Several Provisions" stipulates that after consultation, an agreement on compensation for ecological environmental damage may be applied to the people's court for judicial confirmation. However, the provision does not clarify the level of jurisdiction, there is no unified understanding in practice, and there is a parallel practice of jurisdiction between the middle and grass-roots courts. The author believes that the judicial confirmation cases of the negotiation agreement under the jurisdiction of the middle and grass-roots courts have their own advantages and disadvantages. The jurisdiction of intermediate courts can better adapt to the professional and technical, stakeholder, and complex characteristics of environmental and resource cases, but it may conflict with the relevant provisions of the special procedures of civil litigation. The jurisdiction of grass-roots courts is basically compatible with the Civil procedure Law, but the deficiency lies in the lack of specialized judicial institutions and professionals, and judges may only conduct formal examination, which is not conducive to safeguarding national interests and social and public interests. It is worth noting that in recent years, local courts have actively promoted the construction of specialized institutions for environmental resource trials, showing a development trend of "high courts are generally established, and middle-level courts are established on demand". More and more grassroots courts are integrating trial resources. The establishment of full-time and part-time environmental resource trial institutions in various ways has laid a practical foundation for the performance of ecological environment judicial protection functions. Under the condition that the construction of environmental resources trial institutions in grass-roots courts is becoming more and more perfect, it can be made clear that the negotiation agreement judicial confirmation is under the jurisdiction of the grass-roots courts, and should generally be handled by specialized environmental resources trial institutions, which not only ensures the quality and efficiency of case handling, but also avoids impacting the civil litigation system. (Source: People's Court, author: Hubei Higher People's Court)

2021-09-23