04
2024-12
Franchising | Disputes and Determination of Termination of Commercial Franchise Contracts
The provisions of the Civil Code regarding contract termination apply to commercial franchise contracts as well. The unique termination situations in commercial franchise contracts include the franchisee's right to terminate during the "cooling-off period" and the franchisee's right to terminate when the franchisor conceals or provides false information. In judicial practice, there is still some controversy regarding the recognition of the franchisee's exercise of the right to terminate and other circumstances for the termination of commercial franchise contracts.
2024-12-04
29
2024-11
"Nominal equity, actual debt," also known as "nominal stock, actual debt," refers to a situation in equity investment where the form of investment is represented as equity participation, with the aim of ensuring capital preservation and returns. However, the parties involved do not genuinely intend to engage in equity investment, and in essence, a lending legal relationship is formed between the investor and the financing party. Current laws and judicial interpretations do not provide a clear definition or application of "nominal stock, actual debt." However, the Asset Management Association of China, in its 2019 publication "Regulations on the Filing Management of Private Asset Management Plans for Securities and Futures Operating Institutions No. 4 - Private Asset Management Plans Investing in Real Estate Development Enterprises and Projects," clearly states: "The term 'nominal stock, actual debt' refers to an investment method where the investment returns are not linked to the operating performance of the invested enterprise, and the distribution is not based on the enterprise's investment profits or losses. Instead, it involves providing investors with a capital preservation and return guarantee, regularly paying fixed returns to investors as agreed, and redeeming equity or repaying principal and interest by the invested enterprise under specific conditions. Common forms include repurchase, third-party acquisition, betting agreements, and regular dividends."
2024-11-29
27
2024-11
Perspective | How Should "Lending Agreement" Be Determined in Private Lending?
Private lending mainly refers to the lending and repayment activities conducted between natural persons, legal entities, and non-legal entities engaged in lending business, using their own funds, characterized by occasional and non-profit nature. Article 668 of the Civil Code of the People's Republic of China stipulates that loan contracts should be in written form, except where there are other agreements between natural persons. According to the above provisions, although loan contracts should generally be in written form, in judicial practice, there are also cases of oral loans between natural persons. Therefore, proving whether there is a "loan agreement" between the parties is key to determining whether a private lending relationship exists. This article analyzes the identification of "loan agreement" in private lending between natural persons in conjunction with relevant cases.
2024-11-27
27
2024-11
In the chapter on the supervision of trials in the "Civil Procedure Law of the People's Republic of China," two ways to initiate a retrial procedure are clearly stipulated: the application for retrial by the parties involved and the initiation of a retrial by the people's court ex officio. In practice, the method of initiating a retrial by the people's court ex officio is commonly referred to as "discovered by the president of the court." Depending on the subject that initiates the retrial, there are two different scenarios: one is when the court itself decides to conduct a retrial, and the other is when the Supreme People's Court or a higher-level people's court decides to conduct a retrial. The court's ex officio retrial is essentially a form of self-supervision by the court over the case. The author, in conjunction with the relevant cases handled, will analyze and clarify the procedures and conditions for initiating such retrials.
2024-11-27
21
2024-11
Franchising | Performance of the Franchisor's Registration Obligations and Analysis of Legal Risks
The filing system is an important system in commercial franchising, with multiple functions and roles. Contract filing is also a crucial part of the franchisor's business activities. The "Regulations on the Administration of Commercial Franchising" and the "Administrative Measures for Commercial Franchising Filing (2023 Revision)" provide detailed regulations on filing. However, in practice, franchisors often overlook the filing process, leading to legal risks. This article elaborates on how franchisors should fulfill their filing obligations and the risks associated with failing to do so.
2024-11-21
21
2024-11
International Legal Perspective | Analysis of China's Foreign Investment Security Review System
The foreign investment security review system refers to a specialized mechanism and institution that conducts a comprehensive review of foreign investment activities involving "national security" to assess the risks and impacts of such investments on national security. This system aims to protect national security and interests, ensuring the legality and stability of foreign investments. This article will explore the construction, implementation, and impact of China's foreign investment security review system, helping foreign investors accurately understand the standards of foreign investment security review during their investment process in China, ensuring compliance of investment activities, and effectively managing and responding to potential uncertainties.
2024-11-21
21
2024-11
Perspective | Several Reforms in the New Mineral Resources Law
On November 8, 2024, the "Mineral Resources Law of the People's Republic of China" (hereinafter referred to as the "New Mineral Resources Law") was approved at the 12th meeting of the Standing Committee of the 14th National People's Congress and will come into effect on July 1, 2025. As a major country in mineral resources, the exploration and development of mineral resources are crucial to the national economy, people's livelihoods, and national security. This revision of the Mineral Resources Law is an important measure to ensure national resource security, implement the concept of ecological civilization, and promote high-quality development in the mining industry.
2024-11-21
19
2024-11
In today's globally interconnected era, international economic cooperation, trade exchanges, and cultural interactions are deepening at an unprecedented rate, leading to an increase in cross-border legal disputes. In foreign-related legal matters, according to Article 274 of the Civil Procedure Law of the People's Republic of China (2023 amendment), foreigners, stateless persons, foreign enterprises, and organizations must appoint a lawyer from the People's Republic of China to represent them in lawsuits in the people's courts. This article will introduce various ways for foreign-related entities to appoint domestic lawyers to handle legal affairs, aiming to help these entities better understand and choose the appropriate method of appointment.
2024-11-19
19
2024-11
In recent years, the United States has frequently implemented foreign sanctions to achieve its economic and diplomatic goals, leveraging its significant control over the global economy and financial infrastructure, which poses major risks and unpredictability to normal international trade and economic exchanges. Although entities like the European Union also have foreign sanction measures, U.S. sanctions are particularly noteworthy due to their frequency, severity, complex rules, and the U.S.'s ability for "long-arm jurisdiction." In today's world, it is difficult to completely separate international economic exchanges from U.S. factors; it can be said that even if a transaction does not involve the U.S., the parties involved must consider compliance with U.S. sanctions. Since the 1990s, the U.S. has implemented two-thirds of the world's sanctions. The Washington Post states that U.S. sanctions are "three times more than any other country or international organization." Individuals, organizations, or countries subjected to sanctions often find their financial transactions and capital flows blocked, becoming "financial islands." Compliance with sanctions has increasingly garnered the attention of cross-border trading entities. U.S. economic sanctions come in various forms, and many institutions can implement these measures. Broadly speaking, economic sanctions include not only restrictions on transactions and asset freezes but also export controls, removal from the SWIFT global financial settlement system, and more. The economic sanctions discussed in this article primarily refer to those led by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC), aiming to thoroughly outline and analyze the framework and patterns of OFAC economic sanctions, thereby unveiling the mystery of this important and subtle tool in global economic governance for a wide audience.
2024-11-19
18
2024-11
Perspective | A Review of Practical Views on Missed Diagnosis Medical Disputes
Missed diagnosis refers to the failure to correctly identify a patient's disease or condition during the diagnosis and treatment process in a hospital, due to various reasons, which results in the patient not receiving appropriate diagnosis and treatment. Missed diagnoses can occur at multiple stages, including medical history collection, physical examination, interpretation of auxiliary examination results, and clinical decision-making. The adverse consequences of missed diagnoses may include delayed treatment, worsening of the condition, and increased difficulty in treatment. Whether a hospital should bear legal responsibility for a missed diagnosis cannot be generalized; the prerequisite for a hospital to bear legal responsibility is that the missed diagnosis and the resulting damages meet the clear requirements for tort liability under tort law. If the hospital is indeed liable, then the hospital's subjective fault and the patient's disease factors must be considered in determining the proportion of compensation liability. This article summarizes practical viewpoints on medical disputes arising from missed diagnoses, in conjunction with relevant cases from judicial practice.
2024-11-18
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