28
2023-09
27
2023-07
Mineral Law Perspective | Brief Analysis and (II) of Mineral Resources Overburden Practice
Mineral resource overburden means that the identified mineral resources cannot be developed and utilized due to the implementation of construction projects or planning projects. Mineral resources overburden disputes are characterized by many controversial focuses, low compensation standards, long resolution cycles, and different judicial decisions. This series of tweets intends to sort out the practical problems of mineral overburden, with a view to helping all parties to effectively safeguard their legitimate rights and interests. Mining rights overburden existing legal norms Analysis of the Nature of Overlaid Mineral Resources Disputes In judicial practice, the people's courts hear disputes over mineral resources overlaid by construction projects as civil cases, and the cause of the case is usually determined as property rights disputes (prospecting rights disputes, mining rights disputes), or tort liability disputes (property damage compensation disputes). The Ministry of Natural Resources "Reply to the No. 8524 Recommendation of the Third Session of the 13th National People's Congress" (Natural Resources People's Congress [2020] No. 053) pointed out, "After the mining right holder obtains the mining right, the construction project needs to cover the mineral resources in the region. At this time, the mining right holder and the implementation subject of the construction project belong to the rights and obligations between equal civil subjects, and do not involve the national mineral resource owners, it is not appropriate for the state to compensate the mining right holders by directly returning the proceeds from the transfer of mining rights in the overlying area or replacing resources in an equal amount. The two parties involved should negotiate and resolve the matter in accordance with the principles of market economy and the spirit of the rule of law." From the above reply, it can also be seen that the dispute between the implementation subject of the construction project and the mining right owner due to the overlaying of the mining right is a civil dispute. The behavior of overlaying mineral resources leads to different dispute situations. 1. Infringement disputes The overlaying carried out by the project construction unit without the consent of the mining right owner constitutes a tort, and the litigation caused by the construction unit's failure to perform the overlaying liability is a tort liability dispute. 2. Contract disputes If the construction project overlaying behavior has obtained the consent of the mining right owner in advance, the mining right owner and the project construction unit have signed an overlaying compensation agreement, and the construction unit fails to perform the overlaying compensation agreement resulting in litigation, which is a contract dispute.
2023-07-27
24
2023-07
Point of View... SOE financing guarantee management compliance review points.
加强融资担保领域的合规管理，确保国有企业融资担保相关管理制度和业务行为符合法律法规和司法解释规定，是国有企业提升抗风险能力、实现高质量发展的必然要求。本文将对国有企业融资担保的相关法律规定进行梳理，主要以《关于加强中央企业融资担保管理工作的通知》为基础，总结国有企业融资担保管理合规审查要点。 一、一般规定 （一）《民法典》 《民法典》中有关担保的规定主要体现在物权编中有关担保物权的规定以及合同编中有关保证合同的规定等。伴随民法典的实施，最高人民法院发布《关于适用<中华人民共和国民法典>The interpretation of the guarantee system, that is, the judicial interpretation of the guarantee system, further clarifies and perfects the judicial application of the guarantee system. Although there are special requirements for the guarantee behavior of state-owned enterprises, they should still meet the general requirements of the Civil Code and judicial interpretations. For example, Article 380 of the Civil Code stipulates that if the debtor, guarantor and creditor are at fault after the guarantee contract has been confirmed to be invalid, they shall bear the corresponding civil liability according to their fault. Therefore, if a state-owned enterprise provides a guarantee in violation of the law that results in the invalidity of the guarantee, it is still liable in accordance with the provisions of this article. Companies Act of (II) Article 16 of the Company Law requires the company to provide guarantees to others, in accordance with the provisions of the articles of association of the company, by the board of directors or the shareholders' meeting or the general meeting of shareholders. This article restricts the representation of the legal representative, that is, the act of guarantee is not a matter that the legal representative can decide alone, and the resolution of the board of directors or the shareholders' meeting, the general meeting of shareholders and other corporate organs must be used as the basis and source of authorization. (III) "Nine Minute" Articles 17 to 20 of the "Nine People's Minutes" clarify the following issues: 1. The company's external guarantee needs to be resolved in accordance with the procedures stipulated in Article 16 of the Company Law; the legal representative who provides guarantees for others without authorization constitutes an ultra vires representative; the validity of the guarantee contract in the case of ultra vires representative depends on the relative Whether the person is in good faith. 2. The judgment of whether the relative person is in good faith only requires him to do the necessary duty of care, and the examination of the contents of the resolution of the company's organ by creditors is generally limited to formal examination, but does not require a comprehensive substantive examination. 3. A guarantee company that provides a guarantee or a financial institution issues a guarantee letter to provide a guarantee to a company that is directly or indirectly controlled. There is a commercial cooperation relationship such as mutual guarantee between the company and the principal debtor. If the guarantee contract is signed and agreed by the company's 2/3 shareholders who have the right to vote on the guarantee, no organ resolution is required. 4. In the event that the guarantee contract is found to be invalid due to the legal representative's ultra vires, the company shall bear the liability for contracting negligence, except in the knowledge of the creditor. The judicial interpretation of the guarantee system basically continues the above provisions of the nine people's minutes. For example, Article 7 of the judicial interpretation of the guarantee system stipulates that if the relative is in good faith, the guarantee contract shall have effect on the company; if the relative is not in good faith, the guarantee contract shall not have effect on the company; if the relative has evidence to prove that the company's resolution has been reasonably reviewed, the people's court shall determine that it constitutes good faith. It is worth noting that Article 8 of the "Judicial Interpretation of the Guarantee System" slightly changed the content of "no agency resolution required", limiting "directly or indirectly controlled companies" to "wholly-owned subsidiaries" and deleting "There is a business partnership" situation. Under the three circumstances of Article 8 of the judicial interpretation of the guarantee system, the company still needs to bear the guarantee liability even if it does not make a resolution in accordance with the provisions of the company law on the company's external guarantee. Law of (IV) on State-owned Assets of Enterprises According to Articles 30 and 32 of the State-owned Assets Law of Enterprises, state-funded enterprises providing large guarantees for others shall comply with laws, administrative regulations and the provisions of the company's articles of association, and shall be decided by the company's shareholders meeting, shareholders meeting or board of directors; unless otherwise specified or agreed in the articles of association, the provision of large guarantees for others by wholly state-owned enterprises and wholly state-owned companies shall be decided by the institution performing the investor's duties, A wholly state-owned enterprise shall be decided by the heads of the enterprise through collective discussion, and a wholly state-owned company shall be decided by the board of directors. It is worth noting that the relevant requirements such as Articles 30 and 32 of the Enterprise State-owned Assets Law that need to be decided by the institution performing the responsibilities of the investor do not belong to the Civil Code that requires approval before it can take effect. At present, a consensus has been reached. In other words, the provisions of Articles 30 and 32 are not mandatory norms of validity, and the guarantee behavior of state-owned enterprises is not invalid because of the violation of the provisions. 2. Financial Guarantee Compliance Requirements for State-Owned Enterprises In addition to the above general provisions, SOEs should focus on the relevant provisions issued by the State-owned Assets Supervision and Administration Commission of the State Council and local SASAC, which set out more comprehensive and specific requirements for the financing guarantee activities of SOEs and provide important guidelines for the guarantee management of SOEs. (I) Supplementary Notice on Matters Relating to Strengthening the Management of Funds of Central Enterprises On May 7, 2012, the State-owned Assets Supervision and Administration Commission of the State Council issued the "Supplementary Notice on Strengthening the Fund Management of Central Enterprises" (State-owned Assets Department Fa Evaluation [2012] No. 45)., Strictly control the provision of guarantees to enterprises outside the group, and shall not provide any form of guarantee to enterprises other than central enterprises; if guarantees are provided to enterprises outside the group, they shall be submitted to the SASAC for approval. Since the "Notice" is mainly aimed at the fund management of central enterprises, the provisions on guarantee-related matters are less content and the provisions are more principled and general. (II) the Guiding Opinions on Debt Risk Management and Control of Local State-owned Enterprises On March 26, 2021, the State-owned Assets Supervision and Administration Commission issued the ''Guiding Opinions on the Management and Control of Debt Risks of Local State-owned Enterprises'' (State-owned Assets Development and Financial Evaluation Regulations (2021) No. 18) clearly stated that external guarantee management should be strict, and enterprises with property rights should be guaranteed. In principle, it does not provide guarantees for enterprises without property rights, and strictly controls bundled financing behaviors such as mutual guarantees of enterprises to prevent cross-transmission of debt risks. (III) Notice on Strengthening the Management of Financing Guarantees of Central Enterprises On October 9, 2021, the State-owned Assets Supervision and Administration Commission issued the Notice on Strengthening the Management of Financing Guarantees for Central Enterprises (SASAC [2021] No. 75, hereinafter referred to as "No. 75"), which puts forward comprehensive and detailed requirements for central enterprises to strengthen guarantee management and standardize guarantee behavior. On this basis, some local regulations have also been promulgated, such as the "Regulations on the Management of Lending Funds and Providing Guarantees by Provincial Enterprises in Jiangsu Province", etc. It can be seen that Document No. 75 is not only applicable to central enterprises, but also provides financing guarantees for state-owned enterprises in various regions. Provides guidance. 1. Applicable subject The central enterprises in No. 75 include the headquarters of the central enterprise group and the sub-enterprises of the whole level. As far as the legislative practice of state-owned assets supervision is concerned, not all state-owned assets supervision provisions will make it clear that the scope of application includes not only state-funded enterprises, but also its subsidiaries at all levels, and only in specific major regulatory matters will the corresponding expression be taken, thus showing the importance of state-owned assets supervision on the guarantee management of state-owned enterprises. 2. Guarantee object Subsidiaries of central enterprises included in the scope of consolidation and participating enterprises not included in the scope of consolidation (excluding those that provide guarantees for themselves). It should be noted that the guarantee carried out by the financial subsidiary of the central enterprise's main business with guarantee and the phased guarantee provided by the real estate enterprise for the mortgage loan of the buyer shall not apply to this provision. The financing guarantee business of listed companies controlled by central enterprises shall comply with the relevant provisions of the the People's Republic of China Securities Law and securities supervision. Among them, the types of enterprises specifically included in the financial sub-enterprises refer to the relevant provisions of the Guiding Opinions on Strengthening the Financial Business Management and Risk Prevention of Central Enterprises (State Capital Regulation [2019] No. 25). The enterprises in the final accounts of financial sub-enterprises submitted by the central enterprises to the SASAC on an annual basis are all financial sub-enterprises. 3. Type of guarantee Includes regular guarantees and implicit guarantees. That is, it includes various forms of guarantees for borrowing and issuing bonds, fund products, trust products, asset management plans and other financing activities, such as general guarantees, joint and several liability guarantees, mortgages, pledges, etc., as well as implicit guarantees for supporting letters such as joint loan contracts with guarantee effect, commitment to make up the difference, and comfort commitments. In response to the criterion of "implicit guarantee", SASAC issued a special "on January 4, 2022 《<关于加强中央企业融资担保管理工作的通知>The relevant instructions, the "instructions" clearly: the enterprise to provide a common loan contract, the difference to make up the commitment, comfort letter, support letter and other letters have the effect of guarantee, need to be determined by the legal department of the enterprise according to the specific terms, with the effect of the guarantee is an implicit guarantee. Whether it has the effect of security should be judged in the light of the criteria formed in judicial practice that "the guarantee has a subordinate nature, the establishment of the guarantee legal relationship must be premised on the existence of the principal debt, and the guarantor and the principal debtor are making a performance commitment to the same creditor for the same debt. 4. Specific requirements Document No. 75 puts forward specific and clear requirements for the guarantee activities of central enterprises from eight aspects: improving the management system of financing guarantee, strengthening the budget management of financing guarantee, strictly limiting the object of financing guarantee, strictly controlling the scale of financing guarantee, strictly controlling the financing guarantee over the share ratio, strictly preventing the risk of compensation, timely reporting the management of financing guarantee, and strictly investigating the responsibility of illegal financing guarantee, the content covers risk prevention and system construction before, during and after the event. The following will focus on the strict restriction of the financing guarantee object, strict control of the scale of financing guarantee, strict control of the super-share ratio of financing guarantee and other content analysis. (1) Strictly limit the object of financial security. No. 75 stipulates that central enterprises are strictly prohibited from providing any form of guarantee to enterprises without equity relations outside the group. In principle, financing guarantees can only be provided to subsidiaries or participating enterprises that have the ability to continue operations and solvency. It is not allowed to provide guarantees to subsidiaries or shareholding enterprises that have entered reorganization or bankruptcy liquidation procedures, are insolvent, have suffered losses for three consecutive years or more and have negative operating net cash flow, and are not allowed to provide guarantees to financial subsidiaries. Subsidiaries with no direct equity relationship within the group are not allowed to guarantee each other. If the above three situations require guarantees due to objective circumstances and the risks are controllable, they must be approved by the group's board of directors. It is simply summarized as strictly prohibiting the guarantee of enterprises without equity relationship outside the group, and strictly controlling the guarantee of high-risk sub-enterprises. First, on the question of how no direct equity relationship within the group is defined, SASAC's official reply of 26 November 2021 reads: "Direct equity relationships are not limited to direct parent-subsidiary relationships; an enterprise has direct equity relationships with all levels of subsidiaries it actually controls". Therefore, the "direct equity relationship" is not limited to the direct parent-subsidiary company, but is determined according to the penetration relationship, that is, for all levels of subsidiaries of the group enterprise, as long as the group enterprise has control over it, it can be considered to have a direct equity relationship. Secondly, it is based on the principle of "no guarantee shall be provided to sub-enterprises or shareholding enterprises that do not have the ability to continue operation, no guarantee shall be provided to financial sub-enterprises, and no mutual guarantee shall be provided between sub-enterprises that do not have direct equity relations within the group". However, if guarantees are required due to objective circumstances and risks are controllable, they can also be carried out after approval by the group's board of directors. Finally, in its response to the question of August 9, 2022, SASAC also clarified that the provision of guarantees by subsidiaries to parent companies also applies to this exception. (2) Strictly control the scale of financing guarantees Document No. 75 stipulates that the scale of financing guarantee shall be reasonably determined according to its own financial affordability. In principle, the total scale of financing guarantee shall not exceed 40% of the group's consolidated net assets, the amount of financing guarantee for single-family sub-enterprises (including the group headquarters) shall not exceed 50% of the enterprise's net assets, and the total scale of financing guarantee for enterprises included in the SASAC's annual debt risk control scope shall not increase over the previous year. According to the official response of SASAC on December 14, 2021, the financing guarantee amount here refers to the financing balance actually provided with the guarantee, not the amount incurred. (3) Strict control of over-equity financing guarantees Document No. 75 stipulates that central enterprises shall provide guarantees to subsidiaries and participating enterprises in strict accordance with their shareholding ratio. It is strictly forbidden to guarantee the over-share ratio of the participating enterprises. If the sub-enterprise really needs to guarantee the over-share ratio, it shall be reported to the board of directors of the group for approval, and at the same time, the amount of the over-share ratio guarantee shall be provided by the minority shareholders or a third party through mortgage, pledge and other means to provide a full amount of counter-guarantee with realized value. If a listed company or an enterprise with a minority shareholder containing an employee stock ownership plan or an equity fund is provided with an over-shareholding guarantee and cannot obtain a counter-guarantee, after the approval of the group's board of directors, under the premise of complying with relevant regulations such as financial guarantee supervision, adopt The guaranteed person collects reasonable guarantee fees based on the degree of compensation risk to prevent compensation risks. It is worth noting that the measures for the Administration of guarantee for Enterprises supervised by the State-owned assets Supervision and Administration Commission of Guizhou Province states: "when supervising enterprises and their affiliated enterprises cooperate with other investors to establish new enterprises, they shall, in the cooperation agreement or the articles of association of the company, agree on the ways and principles for each shareholder to provide financing guarantee support for newly established enterprises in accordance with the requirements of the same share and the same share and responsibility." This provision is a reminder of the prior arrangement of financial guarantees, taking into account the dilemma that small and medium-sized shareholders do not have the incentive and obligation to provide guarantees in proportion to their shareholdings in the absence of prior written agreement. In the context of No. 75 strict control of the over-share ratio guarantee, state-owned enterprises can learn from the local regulations, the same share of the same responsibility to provide financing guarantee support agreement written into the investment agreement or the articles of association of the company, in order to avoid the non-state-owned shareholders to provide guarantees according to the proportion of shares simultaneously do not cooperate with the dilemma. No. 75 does not make clear requirements on the way of counter-guarantee, but there are local provisions specifically, state-owned enterprises to provide non-guarantee (such as mortgage, pledge) external guarantee, shall not accept the guarantee way counter-guarantee, the provision has a certain reference significance. State-owned enterprises should focus on the actual credit enhancement effect of counter-guarantees, and should carefully accept counter-guarantees that are only in the form of guarantees, and carefully investigate the qualifications, financial strength, value and liquidity of counter-guarantees (pledges), so as to ensure that counter-guarantees can really play the role of risk compensation. With regard to the issue of guarantee fees, Document No. 75 requires central enterprises to formulate and improve a unified financial guarantee management system for the Group, and to clarify the financial guarantee authority and limits of the Group's headquarters and subsidiaries at all levels, as well as the level of financial guarantee rates. (4) Special provisions for the pledge of shares held by listed companies According to the Circular on Issues Related to the Pledge of State-owned Shares of Listed Companies issued by the Ministry of Finance on October 25, 2001</关于加强中央企业融资担保管理工作的通知></中华人民共和国民法典>
2023-07-24
18
2023-07
Viewpoint... After bankruptcy, the guarantor's debt stops interest-bearing dispute.
引言：主债务人破产后，担保人之债是否停止计息，在《最高人民法院关于适用<中华人民共和国民法典>Prior to the introduction of the Interpretation of the Guarantee System, the prevailing view was that interest would not cease to accrue, but the interpretation of the guarantee system explicitly ceased to accrue interest. The debate over whether the guarantor's debt will cease to bear interest after bankruptcy continues. 1. Two Views Viewpoint 1: The principal debtor goes bankrupt and the secured debt ceases to bear interest. The main reasons are: First, according to Article 46 of the the People's Republic of China Bankruptcy Law, "Unmatured claims are deemed to be due when the bankruptcy petition is accepted. Claims with interest cease to accrue interest from the time the bankruptcy petition is accepted." It can be seen from the above-mentioned law that after the bankruptcy application of the principal debtor is accepted by the people's court, the principal debt ceases to accrue interest. According to the principle of the subordination of security, the guarantor's liability for security is limited to the principal obligation, so the secured obligation should also cease to accrue interest. Second, the security law provides that the guarantor has the obligation to compensate, and at the same time has the right to recover after compensation. If the principal debtor's debt stops interest, the guarantor's debt does not stop interest, the guarantor's compensation, will affect the exercise of the guarantor's right of recovery, the guarantor is more unfair. The Supreme Court (2019) Supreme Fa Min Shen No. 6453 case law expressed the above views. Viewpoint 2: The principal debtor is bankrupt and the secured debt does not cease to accrue interest. The main reasons are: First, the legislative purpose of interest-bearing claims to cease to accrue interest from the time the bankruptcy petition is accepted is not to waive the guarantor's guaranteed debt. Second, after the debtor's bankruptcy application is accepted, the interest-paying claim ceases to accrue interest is based on the special provisions of the law, not the creditor's voluntary exemption of that part of the interest. And the debt is eliminated by liquidation, set-off, withdrawal, exemption, and mixing, and the bankruptcy of the principal debtor is not the cause of the guarantee of the elimination of the debt. Third, the purpose of the guarantor's signing of the guarantee contract is to assume the debtor's obligation to replace the debtor's obligation to the creditor when the debtor is unable to pay off the debt, and the essence is to ensure that the creditor's claim can be fully and effectively paid off, which is the original intention of the parties to the contract to conclude the guarantee contract. Therefore, the guarantor's liability after the main debtor's bankruptcy does not violate the basic principle of the subordinate nature of the secured debt. The Supreme Court (2020) Supreme Fa Min Shen No. 1054 holds the above view. And on January 10, 2020, the Fifth Division of the Higher People's Court of Zhejiang Province issued to the Bankruptcy Trial Business Division of the People's Courts at all levels of the province an answer to the question of whether the guarantor ceases to accrue interest after the bankruptcy of the principal debtor, and copied the document to the Second Civil Division of the Supreme People's Court. The Fifth Civil Division of the Zhejiang Provincial High Court clearly stated in the document that in the bankruptcy proceedings: "The interest-bearing claims declared against the debtor cease to accrue when the bankruptcy petition is accepted. But the cessation of interest is not as effective as the guarantor." And the document also mentions that if the guarantor repays the debt on behalf of the principal debtor in the insolvency proceedings, when the guarantor declares the claim, "the administrator shall deduct the interest on the debt borne by the guarantor from the time the debtor's bankruptcy application is accepted or register the interest claim separately from the time the bankruptcy application is accepted." It can be seen that the view in the trial practice is biased towards the bankruptcy of the principal debtor and the guarantor's debt does not cease to accrue interest. Judicial Interpretation of the Supreme Court of 2. According to the Supreme People's Court on the application<中华人民共和国民法典>有关担保制度的解释》第二十二条规定：“人民法院受理债务人破产案件后，债权人请求担保人承担担保责任，担保人主张担保债务自人民法院受理破产申请之日起停止计息的，人民法院对担保人的主张应予支持。” 该解释明确担保人之债停止计息，但目前仍存在较大争议。有仲裁机构的仲裁裁决即没有采纳该司法解释的观点。 三、笔者观点 我国《企业破产法》第九十二条第三款规定:“债权人对债务人的保证人和其他连带债务人所享有的权利,不受重整计划的影响。”第一百零一条规定:“和解债权人对债务人的保证人和其他连带债务人所享有的权利,不受和解协议的景响。第一百二十四条规定:“破产人的保证人和其他连带债务人,在破产程序终结后,对债权人依照破产清算程序未受清偿的债权,依法继续承担清偿责任。”上述法条为保证的主从关系不受破产程序影响提供了依据。 笔者认为，在重整程序与和解程序中,不适用主债务减轻从债务不能减轻的理由是:债权人设立保证或者第三人连带之债的目的在于当债务人无力承担债务时,保证人或第三人对债务承担责任。破产法设置重整程序或和解程序后减轻债务人的责任,往往是以拯救企业为目的。如果在债务人进入重整程序或和解程序而减免保证人或第三人的责任就与债务设立的宗旨相违背。如果法律允许这种债务减免,那么保证人或连带债务人会和债务人串通来逃避债务。 另外，对保证人不停止计息，有利于提高偿债的效率。破产案件从债权申报到一定比例的清偿通常需要很长的时间。此时保证人停止计息,保证人可能不会积极地履行保证责任,在实践中，即使通过保证合同纠纷诉讼，债权人胜诉,保证人仍有可能拖延履行。但是,如果突破保证责任的从属性,保证人履行保证责任的积极性就不会因此而消失，这对保证人积极主动履行保证责任有促进作用。</中华人民共和国民法典></中华人民共和国民法典>
2023-07-18
13
2023-07
Introduction: In the current construction engineering market, the current situation of "more monks and less porridge" still exists. The specific information of the construction unit's project cannot be disclosed to all construction enterprises, and the ratio of information resources is seriously unbalanced, which also leads to intermediary behavior (introduction, information provision, etc.) still plays an important role in the process of signing construction engineering contracts. Generally speaking, after the intermediary obtains the project information, it will pass the information to the client, or directly promote business cooperation, and then receive a certain remuneration according to the prior agreement, which is generally reflected in the introduction fee, intermediary fee, information fee, labor fee, business consulting fee, etc. Although the form is different, but according to the service content and characteristics, essentially belong to the inter-house contract. The first part is the definition and characteristics of the inter-house contract. Article 424 of the original the People's Republic of China Contract Law defines an intermediary contract as follows: it refers to a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides media services for concluding a contract, and the client pays remuneration; Article 961 of the the People's Republic of China Civil Code now refers to it as an intermediary contract: that is, a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides media services for concluding a contract, and the client pays remuneration. Through the definition and description, the characteristics of the intermediary contract of construction project can be summarized as follows: 1. The intermediary contract is a paid contract, a promise contract and a double service contract. The client in the intermediary contract must pay remuneration to the intermediary, and the intermediary needs to report the opportunity to conclude the contract to the client or facilitate the conclusion of the contract; 2. The intermediary operates by receiving remuneration for engaging in intermediary activities. Does the client enter into a contract with a third party, it has nothing to do with the intermediary, who is not a party to the contract between the client and the third party; 3. The intermediary is only responsible for being entrusted by the client, reporting the opportunity to conclude the contract or looking for a third party who can conclude the contract with the client, mediating, conveying the true intention of both parties, providing opportunities and creating conditions for the client to conclude the contract. In practice, we encounter similar contracts need to correspond to the above definition and characteristics of the inter-house contract to make a comprehensive judgment, to determine whether it belongs to the legal relationship of the inter-house contract, the following author will interpret the case, the project inter-house contract legal relationship and "introduction fee" of the identification and effectiveness of the issue of analysis. The second part of the specific case analysis 1. the validity of the inter-house contract. Case one: Case No.:(2022) Su 0509 Min Chu No. 12809 Trial Court: People's Court of Wujiang District, Suzhou City, Jiangsu Province The focus of the dispute: the legal effect of the project intermediary contract involved in the case. The Court's view: The Court held that ...... China's law does not prohibit the construction of the contract of the intermediary, public bidding matters also exist to report to others bidding and contract opportunities. Bidding activities follow the principles of openness, fairness, fairness and good faith, but it is not that there is an intermediary act that violates the principle of bidding activities, but that the intermediary matters in bidding activities are different from other contractual intermediary matters. The object regulated by the the People's Republic of China Tendering and Bidding Law and other relevant laws is that the employer and the contractor sign the construction project contract through improper means, and the intermediary contract involved in the case is expressed as "introducing Party A and Pinda Company, the construction unit of the project, to negotiate directly, and facilitate the signing of the supplementary terms agreement of the project with the construction unit", the defendant Shuntong Company did not provide evidence to prove that the employer, the contractor and the intermediary violated the relevant laws and regulations such as the the People's Republic of China Tendering and Bidding Law. Therefore, the defendant shuntong company on the case involved in the "project inter-house contract" in violation of the legal prohibition provisions, is an invalid contract defense opinion, lack of facts and legal basis, the court will not adopt. The Project Intermediary Contract shall be legal and valid. Case two: Case No.:(2022) Zhejiang 06 Min Zhong No. 2275 Trial Court: Shaoxing Intermediate People's Court of Zhejiang Province The focus of the dispute: the validity of the inter-house contract involved. Court view: This court believes that this case is an intermediary contract dispute, the parties in the second instance of the dispute focus is how to determine the validity of the intermediary contract involved in the case. Zheng Xiaowei advocated that the contract facilitated by the inter-house contract in the case was a subcontract for the project, and that the subcontract should be found invalid because it violated the mandatory provisions of laws and regulations, so the inter-house contract involved in the case should also be found to be invalid. In this regard, the intermediary contract involved in the case is the true intention of both parties to the contract, and it does not violate the mandatory provisions of laws and regulations. Whether the internal contract of economic responsibility signed by Zheng Xiaowei and Hongxu Company is valid or not does not affect the validity of the intermediary contract involved in the case, and whether the contract is valid or not does not affect Zheng Xiaowei's right to settle the project funds with Hongxu Company. It is not inappropriate to evaluate the validity of the first instance. Now Zhao Hualong has completed the intermediary service, that is, to promote Zheng Xiaowei and Hongxu company signed an internal contract construction economic responsibility contract, Zheng Xiaowei should fulfill the corresponding consideration obligation, that is, to pay the intermediary service remuneration, the first instance judgment ordered Zheng Xiaowei to pay the remaining intermediary service remuneration is not improper. Summary: If the construction project intermediary contract is the true intention of both parties, and the content does not violate the mandatory provisions of laws and regulations, it should be valid in principle; the intermediary's collection of intermediary fees according to the agreement is also a legal act and should be protected by law. And the construction project inter-house contract has relative independence, the validity and performance of the construction project contract signed by it, etc., does not affect the validity of the inter-house contract. However, in view of the complexity and particularity of the construction project, and the numerous laws involved, once the mandatory provisions of the Civil Code, the Bidding Law, the Construction Law and other laws and regulations are violated, there is a risk that the inter-house contract will be found to be invalid. (An invalid contract is not legally binding from the beginning, and if the inter-house person has not yet obtained the inter-house fee, it shall not be protected by law; the inter-house fee collected shall be refunded). 2. common cases of invalidity of inter-house contracts. If the intermediary in the (I) construction project assists the bidder in the bid or collusion, the intermediary contract shall be null and void. Case three: Case No.:(2022) Beijing 02 Minzong No. 13676 Trial court: Beijing No. 2 Intermediate People's Court The focus of the dispute: the validity of the "inter-house agreement" involved in the case. The Court held that the provisions of Article 10, paragraph 2 of Article 32 of the the People's Republic of China Tendering and Bidding Law, and the first paragraph of Article 63 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulate that the parties shall make a true and complete statement of the facts of the case. In this case, Jin Yuan Company, Chen Fushun and Dong Conghui, head of the project planning and contract department involved in the case of China Railway 21st Bureau, all agreed that the project involved in the case was an invitation to tender. Chen Fushun said in the court hearing that Tao Songlin wanted to contract the project. He gave it to the 21st Bureau of China Railway. After looking for the 21st Bureau of China Railway, he found three companies for internal bidding. Wang Zhian found Jinyuan Company and Jinluyuan Company, Chen Fushun found Taishida Company, and then he asked Jinyuan Company to win the bid. The parties have the obligation to make a truthful statement, and in accordance with Chen Fushun's statement on the bidding process, combined with the above-mentioned legal provisions, the Intermediary Agreement is an invalid contract. (II) the intermediary introduces and undertakes construction projects for units and individuals without construction qualifications, the intermediary contract shall be invalid, and the intermediary shall not support the request for payment of the intermediary fee. Case four: Case No.:(2023) Beijing 02 Minzong No. 3895 Trial court: Beijing No. 2 Intermediate People's Court The focus of the dispute: whether the project involved in the case was successful Court view: This court believes that China's law prohibits construction enterprises from exceeding the business scope permitted by the enterprise's qualification level or contracting projects in the name of other construction enterprises in any form. Construction enterprises are prohibited from allowing other units or individuals to use their qualification certificates and business licenses in any form to contract projects in the name of the enterprise. Knowing that the client is not qualified, the act of introducing the project to him violates the mandatory provisions of laws and administrative regulations and shall be invalid. In this case, Zhou Jiang knew that Guan Jinfa did not have the qualification for construction projects, and it was also in violation of the law to borrow or rely on the qualification to contract the project, so he still introduced the project involved in the case, so the act should be invalid. Zhou Jiang based on the invalid agreement to claim that Guan Jinfa to pay it, lack of basis, the court of first instance did not support and not improper, the court upheld the verdict. Case Five: Case No.:(2023) Su 09 Min Zhong No. 1488 Trial Court: Yancheng Intermediate People's Court of Jiangsu Province The focus of the dispute: how to determine the validity of the "inter-house contract" involved in the case. Court view: The court of first instance held that where an intermediary provides intermediary services to a client, the intermediary matter must be legal. In this case, judging from the content of the intermediary contract involved in the case, the purpose of the intermediary service provided by Huang Yi is to facilitate Liu Qing to obtain the contract for the construction of Zhangjiagang High-speed Railway New Town Project (January -3 billion) of China Communications Company. Because Liu Kui is a natural person and does not have the corresponding construction cross-examination certificate, he cannot contract construction projects. Huang Yiyi provides intermediary services for Liu Kui's illegal contracting projects, which not only violates the mandatory provisions of the law, but also undermines the normal order of the construction market and goes against public order and good customs. Therefore, the court of first instance found in accordance with the law that the "inter-house contract" signed by the two parties on December 15, 2021 was invalid. The court of second instance held that the parties should provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are based, and if the parties fail to provide evidence or the evidence is insufficient to prove their claims of fact, the parties who bear the burden of proof shall bear the adverse consequences. In this case, the entrustment matters agreed by both parties in the "Intermediary Contract" are that Huang Yi accepted Liu Qing's entrustment and was responsible for introducing some road earthworks of Liu Qing's subcontracted Zhangjiagang High-speed Railway New Town Project (January -3 billion) of China Communications Company, introducing Liu Qing to negotiate directly with the winning bidder of the project, and providing Liu Qing with important information about some projects, and finally led to Liu Qing and the winning unit to sign a professional contract construction contract for the project; If the project is bid according to the sub-bid section, the professional contract construction contract for the bid section signed by Liu Qing and the winning unit shall prevail. From the above content, the agreed entrustment is that Huang Yi facilitated Liu Qing to undertake the construction of the project. The agreement violated the relevant mandatory provisions of the the People's Republic of China Construction Law and the the People's Republic of China Tendering and Bidding Law, so the first-instance judgment determined that the case involved The "Intermediary Contract" is invalid and not improper. (III) the intermediary contract violates the mandatory provisions of the Tendering and Bidding Law, the Construction Law, etc., the contract is a legal form to cover up illegal purposes, the contract is invalid. Case six: Case No.:(2022) Chuan 11 Min Zhong No. 220 Trial Court: Leshan Intermediate People's Court of Sichuan Province The focus of the dispute: whether the inter-house contract involved in the case is valid, whether Zhou Wenming should pay Liu Xianming the intermediary service fee assigned to him. Court view: In practice, illegal subcontracting and illegal subcontracting of contractors on the one hand lead to irregular contracting and contracting behavior in the construction industry market, disorderly competition, and disrupt the normal operation of the construction industry market, on the other hand, it directly leads to quality defects in construction projects, safety accidents in construction projects, endangering people's lives and property safety, and disrupting social stability. The purpose of the aforementioned provisions is to regulate the construction market and ensure the quality of construction projects, safeguard the safety of people's lives and property. Article 52 of the the People's Republic of China contract Law stipulates: "the contract shall be invalid under any of the following circumstances: (1) one party enters into a contract by means of fraud or coercion, harming the interests of the state; (II) malicious collusion, harming the interests of the state, the collective or the third party; (III) concealing illegal purposes in a legal form; (IV) harming the public interest; (V) violating the mandatory provisions of laws and administrative regulations". In this case, although the "Intermediary Labor Fee Payment Agreement" signed by Zhou Wenming and Feng Jun conforms to the basic requirements and contents of the intermediary contract in form, the content of its intermediary service is to introduce Zhou Wenming's signing of the "Project Construction Management Responsibility Letter" with Yinhe Company to borrow the construction qualification of Yinhe Company for construction, because the act of borrowing the qualification to build the project itself has violated the legal prohibition, the inter-house contract concluded between Feng Jun and Zhou Wenming for this purpose also violated the prohibitive provisions of the law and was invalid. Therefore, the invalidity of the contract is not binding on both parties, Feng Jun to Zhou civilization does not enjoy the payment of intermediary labor costs of the claim, Liu Xianming can not be based on the transfer of claims to obtain the right of claim to Zhou civilization. In addition, other illegal acts in the process of performing the intermediary contract, such as the project introduced by the intermediary is subject to bidding, and the two parties to the project contract fail to perform the formal bidding procedures and sign the construction contract; The intermediary who matches the construction party and the tenderer to conduct substantive negotiations, etc., may lead to the invalidation of the intermediary contract. 3. the inter-house contract is invalid, the inter-house person may still receive part of the remuneration (although the court considers the inter-house contract invalid, the court, in its discretion, upholds the remuneration because both parties are at fault and the inter-house person has performed part of the inter-house act) Case 7: Case No.:(2022) E 02 Min Zhong No. 2139 Trial Court: Huangshi Intermediate People's Court of Hubei Province The focus of the dispute: whether the service fees charged by Lu Cailin should be returned after the "Project Intermediary Contract" in the case is invalid. Court view: The court of first instance held that in this case, Shu Guangwei and Lu Cailin knew that Shu Guangwei, as a natural person, did not obtain the relevant qualifications for construction projects. Article 153 and Article 26 of the the People's Republic of China Construction Law shall be an invalid contract. The court of second instance agreed with this. Regarding whether the service fees collected by Lu cailin should be returned after the contract was invalid, the court of second instance held that in this case, Lu cailin mainly paid for human resources and labor services after the signing of the "project intermediary contract". Shu guangwei's intermediary behavior with Lu cailin actually contracted the civil engineering 2. of the workshop of the complete equipment production base of the credit industry environmental protection engineering through affiliation with Hubei haodu construction engineering co., ltd. and has entered the 1., ltd, the benefits were obtained from it, and Lu Cailin also paid labor and resources for this. The labor and resources already paid cannot be returned and should be compensated at a discount. Besides, Shu Guangwei, knowing that he did not have the qualification for construction, signed a contract with Lu Cailin and voluntarily paid Lu Cailin's intermediary fee of 50000 yuan, which is "payment for illegal reasons" and belongs to natural debt, I .e. he cannot rely on litigation to enforce performance, but the debtor
2023-07-13
13
2023-07
Viewpoint... Commercial real estate leasing legal risks and recommendations.
1. Foreword In recent years, with the cooling of the leasing market and the rise of e-commerce platforms, the number of disputes over commercial real estate leasing has increased. Compared with residential leasing, the commercial background and commercial interests involved in commercial real estate leasing are more special and complex, so such disputes are relatively more complex. Based on the author's own experience in handling relevant cases and retrieving the judgment cases of local courts in recent years, the author briefly combs and analyzes the legal risks encountered by the lessor in the process of commercial real estate leasing, and puts forward corresponding suggestions. Legal Risks of 2. Commercial Real Estate Leasing 1, the lessee will be no real estate certificate housing rental risk. If the leased house is an illegal building, according to Article 2 and Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban House Lease Contracts, if the construction project planning permit is not obtained or is not constructed in accordance with the provisions of the construction project planning permit; or if the leased house is a temporary building that is not approved or constructed in accordance with the approved content, the house lease contract is invalid, the lessor may be found to be primarily at fault or equally at fault and therefore liable for damages. Reference Case 1, Guangdong Provincial High Court 2020 Yue Min Zhong No. 2217 The Court held that "... from the lease contract and supplementary agreement, the leased property is a house, because the house involved in the case did not obtain the construction project planning permission, so the lease contract is invalid contract". Whether the rental housing has been processed real estate certificate, is not the only criterion to judge whether the housing lease contract is valid. Under the "presale + mortgage" purchase mode, if the lessor has obtained the occupation and use right when renting the house, the house lease contract can be considered valid. Reference Case 2, (2020) Xiang 01 Min Zhong No. 10100 On the issue of the validity of the contract, the court held that according to the provisions of Article 2 of the interpretation of the Supreme People's Court on Several Issues concerning the specific application of law in the trial of urban housing lease contract disputes, the lease contract concluded between the lessor and the lessee for the house built without obtaining the construction project planning permit or in accordance with the provisions of the construction project planning permit is invalid. However, if a construction project planning permit is obtained before the end of the debate in the court of first instance or the construction is approved by the competent department, the people's court shall determine it as valid. The factory buildings, warehouses and office buildings involved in the case have not obtained the construction project planning license, and the "lease contract" signed by both parties is an invalid agreement because it violates the mandatory provisions of the law. The court of first instance, in accordance with the principle of fairness, has not wrongly upheld the degree of fault of both parties in accordance with their respective proportions of 50%. Regarding the steel structure expansion loss of 68400 yuan claimed by the appellant, the court held that both parties were at fault because the contract involved in the case was invalid. The first instance determined that the steel structure expansion loss of 34200 yuan was not improper according to the degree of fault of both parties and the proportion of 50%, and the court maintained it. Reference Case 3, Supreme People's Court (2022) Supreme Famin Shen No. 302 After hearing the case, the Supreme People's court held that: "under the circumstances that the relevant facts have been confirmed in the effective judgment of another case, the original judgment comprehensively considers the current" presale + mortgage "mode in China's real estate field. It takes a long time for the buyer to become the owner of the house in the legal sense through the registration procedures of house transfer, If the buyer is not allowed to lease the house during this period, it is not conducive to the use of social resources, but also contrary to the basic principles of the market economy that encourages transactions. It is finally determined that the" House Lease Contract "belongs to the true meaning of Liu Xiaobing and Wang Yuanjie, and it does not violate the mandatory provisions of laws and regulations, and is legal and effective. The contract is not improper"; "Combining the original intention and fairness principle of'buying and selling without breaking the lease, it is confirmed that Hengshun Company has transferred the possession and use right of the house involved in the case to Liu Xiaobing, and Liu Xiaobing's lease behavior is essentially to transfer the possession and use right of the house obtained from Hengshun Company to Wang Yuanjie. The lease relationship occurred during the period when Liu Xiaobing legally owned the use right of the house involved in the case, and the lease relationship does not violate laws and regulations, it is not improper that a legally established lease right should not be denied or affected by facts such as subsequent changes in property rights or termination of contracts." Suggestion: The lessee will rent the house after obtaining the construction project planning permit; if the corresponding procedures cannot be completed before the lease, it is recommended to clearly stipulate in the lease contract or lease announcement that the lessee has already known that the leased house has not obtained the real estate certificate and has not obtained the construction planning permit. The lessee shall not claim that the contract is invalid or terminate the contract on the grounds that the leased house has not obtained the real estate certificate or the construction planning permit. The lessee may not claim damages from the lessor on the grounds that the lease contract for the house has not obtained planning permission is invalid and there is a loss of performance. Temporary buildings approved by government departments and constructed in accordance with the approved content are legal buildings within the approved period, and the lessor may lease them according to law. The part that exceeds the approved use period of the temporary building is generally deemed invalid. If the building leased by the lessor exceeds the approved period, it is recommended that the lessor go through the formalities to extend the use period to the competent government department as soon as possible to avoid the lessee's claim dispute that the contract is partially invalid. 2, the risk of rental housing in violation of the planned use. Article 3 of the "Urban and Rural Planning Law" "Construction activities in urban and town planning areas shall meet the planning requirements." Article 7 "Urban and rural planning approved in accordance with the law shall not be modified without legal procedures." Leased items leased by the lessor for illegal planning purposes may involve the risk of termination of the contract and the lessee's claim. Reference Case 4, (2022) Wan 03 Min Zhong No. 2324 The Court believes that ...... both parties to the contract are at fault for the termination of the performance of the contract, whether they should bear the corresponding legal responsibility. Article 3 of the "the People's Republic of China Urban and Rural Planning Law" stipulates: "Cities and towns shall formulate urban plans and town plans in accordance with this Law. Construction activities within the planned areas of cities and towns shall meet the planning requirements." Article 7 stipulates: "Urban and rural planning approved in accordance with the law is the basis for urban and rural construction and planning management, and may not be modified without legal procedures." According to the above-mentioned legal provisions, the operation of the swimming fitness center involved in the case cannot violate the planned use. The use of the site agreed in the contract, whether it is a small parking lot or a warehouse, as a swimming and fitness center, violates the planned use, and the parties have not proved that the planning has been approved. Therefore, the purpose of the contract cannot be achieved due to the change of the planned use of the site involved in the case, and the parties may request the termination of the contract on this ground. According to Article 5 of the Cooperation Contract, the main obligation to handle fire inspection and acceptance is at Pufa Hotel. Due to the violation of the planned use of the site renovation involved in the case, it will inevitably lead to the failure of fire control and the inability of the swimming fitness center to operate. Pufa Hotel should bear the main responsibility. As an actual investor in the swimming and fitness center, Yang Zihan should fully understand the planned use of the small parking lot and warehouse involved in the case before investing in the construction. He should know that he cannot change the planned use of the building at will. He has not fulfilled the duty of prudence and has subjective fault. According to the degree of fault of both parties, the hospital decided that Pufa Hotel should bear 60% of the responsibility and Yang Zihan should bear 40% of the responsibility. According to the degree of fault between Yang Zihan and Pufa Hotel, the court of first instance decided that Yang Zihan should bear 70% of the responsibility and Pufa Hotel should bear 30% of the responsibility. The court corrected it. Suggestion: The lessor should rent out the house in strict accordance with the planned use of the house. If it is necessary to change the original planned use for lease, it is suggested that the lessee should be responsible for handling the relevant planning approval and construction procedures in the lease contract, and the lessee should not claim compensation from the lessor for handling obstacles in the planning approval procedures. 3, the lease contract opening rate terms of the legal risk. Based on the special properties of commercial properties, the leasing parties often have a corresponding agreement on the opening rate and opening time of the mall. If the lessee fails to meet the opening rate requirements or fails to realize the brand entry agreed upon by both parties, the court may find that the lessor is in breach of contract and shall bear the liability for breach of contract in proportion. Reference Case 5, (2021) Yu 05 Min Zhong 69 The Court believes that the focus of the dispute in this case is whether Pengheng Company has breached the contract in the process of performing the contract, and whether it should bear the corresponding liability for breach of contract. First of all, the supplementary agreement on the house lease contract signed by Pengheng Company and Mengya Company is the true intention of both parties, and both parties should perform according to the contract. The supplementary agreement clearly stipulates that when the mall opens, Pengheng Company shall ensure that the main merchants in the mall (Goodfield Fitness, Cross-border Cinema, Wanda Baby King, NIKE, Adidas Collection Store or other merchants of the same level) enter and open at the same time. The house leased by Pengheng Company is an integral part of Renyue Tiandi Shopping Center. The level and scale of merchants introduced by the shopping center will inevitably affect the level positioning and passenger flow of the entire shopping center. Therefore, the introduction and opening of merchants agreed in the supplementary agreement by both parties belong to the guarantee clause of the rental market environment and belong to Pengheng Company's main contractual obligations. As of April 29, 2019, when Renyue Tiandi Shopping Center opened, Pengheng Company did not guarantee Goodfili Fitness, Wanda Baby King, NIKE,Adidas Collection Store or other businesses of the same level to enter and open at the same time according to the contract. Although Pengheng Company provided evidence to prove that it introduced Mengshi Fitness, Adventure Sunshine Park, rookie and Tebu kids stores, however, both Goodfili Fitness and Wanda Baby Wang agreed in the contract belong to chain organizations that enjoy a certain popularity nationwide. rookie and Tebu kids also do not belong to the same level as NIKE and ADIDAS in brand popularity and brand positioning. Pengheng Company claims that it has signed a contract with Goodfili Fitness and Wanda Baby King. Goodfili Fitness and Wanda Baby King have nothing to do with it, the supplementary agreement between Pengheng Company and Mengya Company stipulates that Pengheng Company shall ensure the introduction of the above-mentioned merchants and start business at the same time. Even if Pengheng Company signs a contract with the above-mentioned merchants, it does not conform to the contract agreement between the two parties if it does not start business at the same time. Therefore, the evidence shown by Pengheng Company is not sufficient to prove that it has fulfilled its investment invitation obligations according to the contract agreement, because Pengheng Company did not fulfill its contractual obligations, constitutes a breach of contract. Although the housing lease contract and supplementary agreement involved in the case did not stipulate the legal consequences of Pengheng Company's violation of the above agreement, as a guarantee clause of the rental market environment, Pengheng Company's failure to fulfill the corresponding contractual obligations can be regarded as Pengheng Company's delivery of the leased site to Mengya Company does not conform to the purpose agreed in the contract. The evidence of Pengheng Company's use of the site involved in the case does not serve as a contractual obligation for Mengya Company to agree to waive Pengheng's market environment guarantee clause. Because the site delivered by Pengheng Company to Mengya Company does not conform to the purpose agreed in the contract, Mengya Company has the right to exercise the right of simultaneous performance of the defense to suspend the payment of the corresponding rent to Pengheng Company. After receiving the rectification notification letter from Mengya Company, Pengheng Company not only failed to perform the corresponding obligations according to the contract, but also sent a notification letter to Mengya Company to terminate the contract. As a result, Pengheng Company shall bear the responsibility for the cancellation of the lease contract. According to this, the first instance supports the reasonable loss arising from the termination of the contract by Mengya Company. Pengheng Company believes that it does not constitute a breach of contract and should not be liable for compensation. The court does not support the appeal reason. Suggestion: It is recommended that the opening rate be agreed as the overall opening rate of the rental project, not limited to a certain floor or area, and try not to specify the entry of a certain brand in the contract, and the lessor can increase the number of types of brands. 4, lease defects do not disclose the risk of notification. The lessor's lease to the lessee of a house that has not passed the fire acceptance or completion acceptance does not necessarily result in the invalidity of the lease contract. Article 13 of the "Fire Protection Law" stipulates that "construction projects that must implement the fire protection acceptance system shall not be put into use without acceptance." Article 61 of the "Construction Law" A construction project may be delivered for use only after it has been completed and passed the acceptance check; if it has not been accepted or fails to pass the acceptance check, it is prohibited to put it into use. The above-mentioned provisions are mandatory provisions on the conditions of use of the leased property, if the lessor does not disclose the status quo of the leased property has not passed the fire acceptance and completion acceptance, the lessee may request the termination of the contract and require the lessor to compensate for the loss of decoration on the grounds that the leased property is not eligible and the purpose of the lease contract cannot be realized. Legal basis: Article 724 of the the People's Republic of China Civil Code stipulates that "if the leased property violates the mandatory provisions of laws and administrative regulations on the applicable conditions, and the leased property cannot be used, the lessee may terminate the contract." Reference Case 6, Supreme People's Court (2018) Supreme Law Minshen No. 871 Ruling This court believes that according to the third provision of Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Urban Housing Lease Contract Disputes, it can be seen that the leased house violates the mandatory provisions of laws and administrative regulations on the conditions for the use of the house. If the leased house cannot be used, the lessee may request to terminate the contract. The judicial interpretation establishes the basic principle of determining the validity of urban housing lease contracts and limits the scope of invalid contracts. The fire acceptance stipulated in the the People's Republic of China Fire Protection Law belongs to the provisions of the conditions for the use of the house. Therefore, even if there is a company's alleged case involving the second workshop without fire acceptance, it does not necessarily lead to the invalidity of the lease contract. Judging from the actual situation of this case, after the signing of the "Plant Lease Contract" involved in the case, China Railway Company delivered the subject matter of the contract to a company in accordance with the contract, and a company also actually used the plant and other facilities of China Railway Company, and both parties are in accordance with the contract. perform. The "Plant Lease Contract" is the true intention of both parties, the content does not violate the mandatory provisions of laws and administrative regulations, and there is no invalidity of the contract as stipulated in Article 52 of the the People's Republic of China Contract Law. A company that the original judgment did not adopt its defense of the validity of the lease contract in the case can not be established. Reference Case 7, Supreme People's Court (2021) Supreme Law Minshen No. 4912 The Court considers that… according to the provisions of Article 61 of the Construction Law and Article 13 of the Fire Protection Law, construction projects that have not completed the completion acceptance and fire protection acceptance cannot be delivered for use, which does not affect the conclusion of the lease contract for the relevant construction projects by the parties concerned and the validity of the contract. According to the facts that have been ascertained, a house lease contract relationship has been established between the Land Reclamation Company and Wang Zitian, and the content of the contract to be performed shall be subject to the "Lease Contract" signed by Ai Hong and the Land Reclamation Company and the supplementary agreement. Paragraph 2 of Article 3 of the contract stipulates: "The land reclamation company will deliver the leased property to Party B for use as it is..." It shall be deemed that the parties to the contract have known and recognized the state of the leased property at that time, including the physical condition and the examination and approval and acceptance. Wang Zitian, as the lessee, has a duty of prudent care in this regard. Therefore, Wang Zitian advocates that the delay in completion acceptance and fire acceptance of the leased property affects its normal use of the leased property and does not have a contractual basis. Recommendation: The author believes that when leasing the construction in progress without a real estate certificate, the lessor should clearly agree in the lease contract that the delivery method of the lease is the status quo delivery, and make it clear that the lessee has known that the lease has not handled the real estate certificate.
2023-07-13
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2023-07
In order to improve the supervision system of private equity funds, the business activities of private investment funds will be further included in the rule of law and standardized track for supervision. On July 9, 2023, the State Council officially issued the Regulations on the Supervision and Administration of Private Investment Funds (hereinafter referred to as the "Regulations"), which will come into force on September 1, 2023. These regulations have a total of seven chapters and 62 articles, which are divided into general provisions, private equity fund managers and private equity fund custodians, fund raising and investment operations, special provisions on venture capital funds, supervision and management, legal responsibilities and supplementary provisions. The following is a review of the contents of the new and revised provisions of these Regulations, the specific contents of which are interpreted as follows: 1. specify the scope of application Article 2 of the "Regulations on the Supervision and Administration of Private Investment Funds" clearly stipulates the scope of application, that is, "within the territory of the People's Republic of China, raising funds in a non-public manner, establishing investment funds or establishing companies or partnerships in accordance with the law for the purpose of conducting investment activities, private fund managers or general partners manage and conduct investment activities for the benefit of investors, these Regulations shall apply". The above provisions also specify the basic definition of private equity funds. 2. to clarify the problem of superior law The interim regulations on the Administration of Private Investment funds (draft for soliciting opinions) (hereinafter referred to as the draft for soliciting opinions, except that the securities regulatory authorities and their dispatched offices exercise some of their administrative rights in accordance with the Securities Investment Fund Law in Article 4, it does not take the Securities Investment Fund Law as the legislative basis for its superior law. Compared with the draft, this regulation clarifies its upper legal basis. In addition, with regard to the regulatory authority of private equity funds, these regulations are formally placed in the documents of the effectiveness level of administrative regulations in terms of legality, and implement the supervision and management rights of the China Securities Regulatory Commission and its dispatched agencies on the business activities of private equity funds. 3. strengthen the requirements of fund managers and their shareholders. (I), compared with the draft for soliciting opinions, these regulations delete some principled requirements for private equity fund managers (e. g., business premises, employees, risk control compliance and other systems). In view of the previous "Measures for the Registration and Filing of Private Investment Funds", the requirements of private equity fund managers in terms of paid-in capital, business premises, employees, internal control system, etc. have been quantified and refined, and more clear landing standards have been provided. Not retained. (II) Article 7 of these Regulations clearly stipulates that the manager of a private equity fund shall be a company or partnership established in accordance with the law. If the assets of a private equity fund established in the form of a partnership are managed by a general partner, the general partner shall apply the provisions of these Regulations on private equity fund managers. This provision is intended to prevent backdoors by fund managers in practice. (III), the negative list of controlling shareholders and actual controllers of private equity fund managers is compared with the draft for soliciting opinions, which states that the subjects required by the negative list in the draft for soliciting opinions include major shareholders or partners, and the regulations on Private Equity funds have been adjusted to make it clear that they are controlling shareholders, actual controllers or general partners. These adjustments solve the problem of unclear judgment criteria for "major shareholders. 4. to increase the negative list of senior executives. On the basis of the draft for soliciting opinions, these regulations further expand the negative list, adding "administrative penalties imposed by the financial management department for major violations of laws and regulations in the past three years" and "acting as the legal representative, executive partner or appointed representative of the private equity fund manager whose registration has been canceled due to the circumstances listed in item 3 of the first paragraph of Article 14 of these regulations." or senior managers responsible, since the private equity fund manager was deregistered for less than 3 years ", the main content is basically consistent with the" Private Investment Fund Registration and Filing Measures. 5. clarify the registration requirements of fund managers. Article 10 of these regulations clearly stipulates that "private equity fund managers shall perform registration procedures with institutions entrusted by the securities regulatory authority under the State Council in accordance with the law." This time, the registration requirements are uniformly clarified from the level of administrative regulations. In addition, compared with the draft for soliciting opinions, these regulations delete the requirement that the fund industry association complete the registration formalities within 20 working days from the date of accepting the registration application. 6. clarify the performance of private equity fund managers and the prohibited behavior of related subjects. (I) Regarding the responsibilities of private equity fund managers, these regulations have added the provisions of "separate management and separate bookkeeping of different private equity fund properties under management"; added the provisions of "establishing an effective risk control system"; at the same time, from operability From a perspective, the relevant provisions of "calculating and reporting investor account information to investors in accordance with the agreement of the fund contract" have been deleted. Moreover, the following clause is separately stipulated: "Where an investment fund is established by raising funds in a non-public manner, the private equity fund manager shall also exercise litigation rights or perform other legal acts in its own name for the property interests of the private equity fund". (II) This Regulation increases the prohibited sexual acts of shareholders, actual controllers and partners of private equity fund managers, such as false capital contributions and evasion of capital contributions; unauthorized interference in the business activities of private equity fund managers; and the use of private equity fund property for their own or other people's interests. The main purpose is to prevent the shareholders and actual controllers of private equity fund managers from dominating the property of private equity funds in practice, making profits for themselves or related stakeholders, and harming the interests of investors. 7. increases ongoing compliance requirements These regulations increase the continuous compliance requirements of private equity fund managers, mainly reflected in: The (I) is in good financial condition and has working capital commensurate with the type of business and the size of assets under management; The legal representative of the (II), the executive partner or the appointed representative, or the senior manager in charge of investment management shall, in accordance with the provisions of the securities regulatory authority under the State Council, hold a certain proportion of the equity or property shares of the private equity fund manager, except as otherwise provided by the State; The Measures for the Registration and Filing of Private Investment Funds require senior executives to directly or indirectly hold a certain percentage of the equity or property shares of the private equity fund manager, and the total paid-in capital shall not be less than 20% of the paid-in capital of the private equity fund manager, or Not less than 20% of the minimum paid-in capital of the private equity fund manager stipulated in the "Registration and Filing Measures. 8. clarify the circumstances in which the registration of the fund manager is canceled These regulations mainly modify and adjust the situation of cancellation of registration from "the first private equity fund has not been filed within 6 months after registration" to "the first private equity fund has not been filed within 12 months from the date of registration". At the same time, the situation in item (VI) of Article 13 of the draft for soliciting opinions that "does not comply with the provisions of paragraph 2 of Article 6 of these regulations, and shall not be corrected within the prescribed time limit, and the circumstances are serious" has been deleted. In addition, these regulations provide for the handling of private equity fund assets before the cancellation of private equity fund managers, that is, "the private equity fund manager shall be notified to liquidate the private equity fund assets or transfer the private equity fund management responsibilities to other registered private equity fund managers in accordance with the law". 9. Clarify Prohibitive Provisions on Solicitation Behavior Articles 17 and 18 of these Regulations clearly stipulate the relevant acts of fund raising. Article 17 Private equity fund managers shall raise funds by themselves and shall not entrust others to raise funds, except as otherwise provided by the securities regulatory authority under the State Council. Article 18 A private equity fund shall be raised or transferred from qualified investors, and the cumulative number of investors in a single private equity fund shall not exceed the number prescribed by law. Private equity fund managers shall not take the establishment of multiple private equity funds for a single financing project, etc., to break the legal limit on the number of people, and shall not take the private equity fund shares or income rights to split and transfer, etc., to lower the standard of qualified investors. The term "qualified investor" as mentioned in the preceding paragraph refers to the units and individuals who have reached the prescribed asset scale or income level, and have the corresponding risk identification ability and risk bearing ability, and the subscription amount is not less than the prescribed limit. 10. clarify the fund's investment scope and negative list (I) on the investment scope of private equity funds. The provisions of these regulations are basically consistent with the "Measures for the Registration and Filing of Private Investment Funds", but the "Measures for the Registration and Filing of Private Investment Funds" further refines the provisions, which clearly include "stocks of non-listed public companies, stocks issued by listed companies to specific targets, The shares of listed companies traded in bulk transactions, negotiated transfers, etc., and the shares of equity investment funds", etc. In addition, the scope of fund investment stipulated in these regulations does not include "debt investment". In practice, for some funds that invest in special opportunity areas, they may make debt investment to participate in non-performing asset business. The feasibility of such investment needs to be further clarified by the regulatory authorities. (II) negative list on investment scope Money lending and credit business are already regulated in the "Certain Provisions on Strengthening the Supervision of Private Investment Funds", which are further clarified here. However, the "Provisions on Strengthening the Supervision of Private Investment Funds" clearly in accordance with the contract to provide loans within one year for the invested enterprises, except for guarantees, there is no such exception in these regulations, whether the above provisions apply or which provisions are based on, to be further clarified by the regulatory authorities. (III) about government investment projects These regulations add the prohibited behavior of "not to increase the government's hidden debt in disguise by requiring the local people's government to promise to buy back the principal. XI. Implementation of differentiated management and new investment level management regulations Article 25 of these regulations stipulates that the investment level of private equity funds shall comply with the provisions of the financial management department of the State Council. However, private equity funds that meet the conditions prescribed by the securities regulatory authority under the State Council and invest the main fund property in other private equity funds are not included in the investment hierarchy. The investment levels of venture capital funds and private equity funds as stipulated in the second paragraph of Article 5 of these Regulations (I. e. government funds) shall be prescribed by the relevant departments of the State Council. Therefore, private equity funds with reasonable development needs, such as venture capital funds and government funds, are exempted from a layer of nesting restrictions on the basis of existing rules. XII. Restrictive requirements for delegation of investment management authority Article 27 of these regulations stipulates that the manager of a private equity fund shall not entrust the investment management duties to others. Where a private equity fund manager entrusts other institutions to provide securities investment advice services for private equity funds, the entrusted institution shall be the fund investment advisory institution stipulated in the Securities Investment Fund Law. From this, it can be seen that the above provisions may have some impact on the dual GP model of funds that exist in practice, in which the GP who does not act as a fund manager assumes a portion of the responsibilities related to investment management there is a compliance risk of violating the above provisions. However, the investment adviser of private equity investment funds is not specifically stipulated in these regulations, and only the qualification of investment adviser of private equity investment funds is clarified. However, private equity investment funds do need external third-party institutions to provide investment advisory services, to be further clarified by the regulatory authorities. XIII. Clear requirements for the establishment of a system of connected transactions Article 28 of these regulations stipulates that private equity fund managers shall establish and improve the management system of related party transactions, and shall not conduct improper transactions or transfer of interests between private equity fund property and related parties, and shall not conceal them through multi-layer nesting or other means. The above provisions add provisions on the related transaction system and decision-making procedures. XIV. Clarify the prohibited sexual acts of fund managers and other entities at the investment stage Article 30 of these regulations clearly stipulates that some prohibited acts of private equity fund managers, private equity fund custodians and their practitioners: The (I) confuses its inherent property or the property of others with the property of the private equity fund; (II) use the property or position of private equity funds to seek benefits for people other than investors; (III) embezzlement and misappropriation of private fund property; (IV) divulging undisclosed information obtained for the convenience of his position, and using the information to engage in or express or imply that others are engaged in relevant securities and futures trading activities; Other acts prohibited by (V) laws, administrative regulations and the provisions of the securities regulatory authority under the State Council. Fifteen, increase the private equity fund managers can not normally perform their duties and other circumstances of the disposal measures. Article 34 of these regulations stipulates that due to the inability of private equity fund managers to perform their duties normally or the occurrence of major risks, private equity funds cannot be
2023-07-12
10
2023-07
1. brief In May 2016, Cui and Guo jointly established an ornamental fish company with a subscribed capital of 10 million yuan, of which Cui was 8 million yuan and Guo was 2 million yuan, with a subscription period of 30 years. In July 2017, Cui transferred his shares to Li. In August 2018, the ornamental fish company confirmed that it owed 1 million yuan to Wanhu Company for the decoration project, which has not been paid. In April 2019, Li and Guo canceled the company. In March 2020, Wanhu sued Li, Guo and Cui to the court, demanding that Li and Guo be liable for repayment, and Cui be jointly and severally liable for the above debts within the range of 8 million yuan. 2. Judgment Result As to whether Cui should bear the responsibility, the court of second instance made a judgment contrary to the court of first instance. The court of first instance held that Article 22 of the "Interpretation II of the Company Law" stipulates that when the company is dissolved, the outstanding capital contributions of shareholders should be regarded as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid the capital contribution and other shareholders or promoters at the time of the establishment of the company shall bear joint and several liability for the company's debts within the scope of the unpaid capital contribution. Article 18 of Interpretation III of the Company Law stipulates that the shareholders of a limited liability company transfer their equity if they fail to perform or fully perform their capital contribution obligations. The transferee knows or should know that if the company requests the shareholder to perform the capital contribution obligations and the transferee bears joint and several liability for this, the people's court shall support it. Where the creditor of the company brings a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these regulations, and requests the transferee to bear joint and, the people's court should support it. Cui, the promoter and original shareholder of the ornamental fish company, transferred the equity without fulfilling the obligation of capital contribution. Therefore, Cui should be jointly and severally liable for the company's debts within the scope of his unpaid capital contribution. The author as Cui a commissioned litigation agent in the subsequent appeal. In my opinion, under the registration subscription system, the transfer of shares by shareholders before the expiration of the subscription period is a legal and effective act, so the rights and obligations of shareholders have been broadly transferred. However, in the interpretation of the Company Law, "failure to fulfill or fully fulfill the obligation of capital contribution" should be defined as that after the expiration of the subscription period, Cui does not belong to this situation, and in addition, before the transfer of Cui's equity arises from the debts of the ornamental fish company and the reasons for the dissolution of the company, the provisions of Articles 18 and 22 of Interpretation II of the Company Law shall not apply. Cui should not be jointly and severally liable. Subsequently, the court of second instance adopted the author's point of view and revoked the judgment of the court of first instance. 3. legal analysis Summing up the case in the abstract, the question can be raised: after the shareholders transfer their shares before the expiration of the capital contribution period, are they liable for the company's subsequent debts? 1. The issue of the effectiveness of equity transfer. The validity of the equity transfer should be judged before discussing whether the shareholders of the transferred equity should bear the debt. It is generally believed that under the paid-up capital system, the shareholders of the company shall enjoy the benefits of the period of the paid-up capital during the life of the company, and the shareholders of the company shall enjoy the rights and obligations of the shareholders after paying a certain amount of capital, so that the exercise of the rights of the shareholders to transfer their own equity is valid as long as it conforms to the relevant laws on the transfer of equity. In China, the transfer of equity in accordance with the Civil Code of legal acts effective elements and the relevant provisions of the Company Law can be. The Company Law and its relevant judicial interpretations are not prohibitive. And from the essence of the equity transfer, the equity transfer is not a physical contribution, but a qualification. Anyone who has acquired the status of a shareholder in accordance with the law has the right to transfer, even if the transfer of shares is valid before the expiration of the subscription period. 2. The circumstances in which the liability for the debt is required. The transfer of shares is legal and valid, and then we will discuss the circumstances under which the original shareholders should bear the relevant responsibility for the debts of the subsequent company. Article 18 of Interpretation III of the Company Law stipulates that if a shareholder of a limited liability company fails to perform or fully perform its capital contribution obligations, the transferee knows or should know that the company requests the shareholder to perform its capital contribution obligations and the transferee knows or should know that the company requests the shareholder to perform its capital contribution obligations and the transferee bears joint and several liability for this, the people's court shall support it; where the creditors of the company file a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these provisions, and at the same time request the aforementioned transferee to bear joint and several liability for this, the people's court shall support it. According to the above provisions, the original shareholders to bear joint and several liability to meet the requirements of:(1) the transfer of equity without full performance of capital contribution obligations;(2) the transferee knew or should have known of this. The more controversial item is item (1), so only this requirement is discussed, how should the failure to fully fulfill the capital contribution obligation be defined, especially under the registered capital system, is the failure of shareholders to fulfill the capital contribution before the expiration of the period of time belong to the above situation? According to the relevant decision rules of the Supreme Court (see Part IV), it is concluded that shareholders enjoy the benefits of the term before the expiration of the subscription period, so that the failure of shareholders to pay or not fully pay the capital contribution within the subscription period is not an unfulfilled or incomplete performance of the capital contribution obligation. Shareholders who transfer their shares before the expiration of the subscription period are not required to be jointly and severally liable for the company's unliquidated debts within the scope of the unfunded principal and interest. And the Nine People's Minutes also make relevant provisions, shareholders in accordance with the law to enjoy the benefits of the term. Therefore, "failure to fully fulfill the obligation to contribute capital" should be understood in a narrow sense, and it should be interpreted as an equity transfer that has not paid the capital contribution (the capital contribution has been expired) beyond the payment period, I .e. a defective capital contribution. In summary, we can conclude that shareholders who have not actually made capital contributions are not liable for the transfer of equity under the following conditions: 1. The period of capital contribution before the transfer of equity has not expired; 2. The debt occurs after the transfer of equity; 3. There is no accelerated maturity under the Company Law. Summary of 4. referee rules On May 28, 1.2013, Anhui Holdings and China Energy Holdings signed the Equity Transfer Agreement, transferring 99% of its equity in An Investment to China Energy Holdings, and transferring the rights and obligations of shareholders together. Therefore, the transfer of equity by Anhui Holdings in the case of capital contribution obligations have not yet expired, does not belong to the expiration of the capital contribution period and does not fulfill the capital contribution obligations, Anhui Holdings should no longer bear the responsibility of capital contribution to the company. (2016) Supreme Famin Re -301 2. According to the first paragraph of Article 28 of the "the People's Republic of China Company Law", "Shareholders shall pay in full and on time the amount of capital contributions they have subscribed for as stipulated in the company's articles of association", before the expiration of the subscription period, shareholders enjoy the benefits of the period, Therefore, the failure of shareholders to pay or fully pay their capital contributions within the subscription period does not belong to the failure or failure to fully perform their capital contribution obligations. A shareholder who transfers his equity before the expiration of the subscription period is not required to be jointly and severally liable for the company's unpayable debts within the scope of the unfunded principal and interest, unless the shareholder has the bad faith of transferring the equity to evade the obligation of capital contribution, or there are exceptional circumstances such as zero paid-in capital and setting an ultra-long subscription period in the case of a low registered capital. (2021) Supreme Famin Shen No. 6421 3. In this case, Feng Liang and Feng Dakun, the former shareholders of Gansu Huahuineng Company, have a capital contribution period up to December 31, 2025. Article 28 of the the People's Republic of China Company Law stipulates that shareholders shall pay in full and on time the amount of capital contributions they have paid as stipulated in the articles of association of the company. Shareholders enjoy the "term interest" of capital contribution, and the creditors of the company have the opportunity to examine whether to conduct a transaction with the company on the basis of reviewing the credit information such as the time of capital contribution of the shareholders of the company, and the creditors' decision on the transaction shall be subject to the time of capital contribution of the shareholders. The Supreme People's Court on the application<中华人民共和国公司法>The "failure to perform or fully perform the obligation of capital contribution" stipulated in Article 13, paragraph 2, of the (III) on Certain Issues shall be understood as "failure to pay or fully pay the capital contribution", and shareholders whose capital contribution period has not expired and have not fully paid their share of capital contribution shall not be deemed as "failure to perform or fully perform the obligation of capital contribution". In this case, when Feng Liang and Feng Dakun transferred all the equity, the capital contribution period of the subscribed equity has not expired, which does not constitute Article 13, paragraph 2, of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" The situation of "transferring equity without fulfilling or fully fulfilling the obligation of capital contribution" as stipulated in Article 18. (2019) Supreme Law No. 230 Comprehensive case 1. 2. three decision rules can be considered that the shareholders who transfer the equity before the expiration of the capital contribution period should not be considered as "not fulfilling or not fully fulfilling the obligation of capital contribution". 4. Yazer Company filed for bankruptcy liquidation in a timely manner when it had the reasons for bankruptcy. As the sole shareholder of Yazer Company at that time, Microneet Company did not actively promote Yazer Company to file for bankruptcy liquidation, nor did it actively pay capital to supplement the company's capital to pay off its debts. In this case, in order to safeguard the interests of the creditors of Yaze Company, it shall, in accordance with the provisions of Article 35 of the Enterprise Bankruptcy Law, determine that the capital contribution of the shareholders who have not reached the period of capital contribution shall be accelerated due to the bankruptcy of the company, and determine that the capital contribution obligation of the micro-network company shall be accelerated due before the transfer of equity. (2020) Shanghai 03 Minchu No. 5 Combined with the case 4 decision rules, it can be held that the period of capital contribution has not expired but there is an accelerated maturity situation under the company law. 5. In this case, Bian Xiangping's secured creditor's rights to Beijing Zhengrun Energy Company occurred after Gao Yang's transfer of capital contribution, that is, the company's creditor's rights did not exist at the time of equity transfer; Gao Yang and Guoxin Zhixi Center signed the "Capital Contribution Transfer Agreement" which stipulates that the transferee Guoxin Zhixi Center shall take over the rights and obligations of the funder, beijing Zhengrun Energy Company registered the relevant "Shareholders' Meeting Resolution" and "Investment Transfer Agreement" with the industrial and commercial department and registered the industrial and commercial change. Bian Xiangping should know that Gao Yang is no longer a shareholder when accepting the guarantee provided by Beijing Zhengrun Energy Company. The legal guarantee relationship between Beijing Zhengrun Energy Company and Beijing Zhengrun Energy Company has nothing to do with Gao Yang, and there is no expectation interest or trust interest in Gao Yang. Therefore, the judgment of the second instance found that Gao Yang's transfer of equity before the expiration of the period of capital contribution, its capital contribution obligations are transferred together, does not belong to the failure to fulfill or fully fulfill the capital contribution obligations, and there is nothing improper. Bian Xiangping applied for a retrial and held that Gao Yang's transfer of capital contribution was an expected breach of the company's capital contribution liability and had no legal basis. (2020) Supreme Law Minshen No. 5769 In conjunction with the rules of judgment in Case V, it can be held that there is no liability for claims and debts arising after the transfer of equity before the expiration of the period of contribution. Reference article: 1. Liu Min. On the liability of capital contribution after the transfer of unpaid-up equity, Law and Business Research, 2019,36(06). 2. The shareholders who have not reached the period of capital contribution shall still have the obligation to contribute after the transfer of equity, WeChat public number Shanghai High Court Research Office. https://mp.weixin.qq.com/s?__biz=MzI2ODUzMDA3MA==&mid=2247499886&idx=1&sn=69268d6e27169ac9e21e1120d1ab481a&chksm=eaecb897dd9b31811ddff7860e876a9cb4d107f947d654c527aaefbe5914c24916c2c7999f3c&scene=27</中华人民共和国公司法>
2023-07-10
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
