10
2023-07
1. issues raised Fire inspection and acceptance refers to the qualified investigation of fire inspection conducted by the fire department during the completion and operation of enterprises and institutions. The completed construction project is generally submitted by the construction unit to the housing and construction department for fire control acceptance of the project, and can be put into use only after passing the acceptance. Because of the safety of the people's lives and property, which is directly related to fire safety, the third paragraph of Article 13 of my country's Fire Protection Law clearly stipulates: "Construction projects that should be subject to fire protection acceptance in accordance with the law, without fire protection acceptance or unqualified fire protection acceptance, It is forbidden to put into use; other construction projects that fail to pass random inspections in accordance with the law shall be stopped." In practice, there are many houses that are rented out without fire inspection, how to judge the validity of the above-mentioned housing lease contract, how to understand the provisions of Article 13 of the Fire Law, there are different views in judicial practice, this paper intends to analyze the above-mentioned problems through four cases. 2. Related Cases and Referee Views The (I) determines that the lease contract is invalid on the grounds that whether the leased house has passed the fire protection acceptance is related to the public interest, and the provisions of Article 13 of the Fire Protection Law shall be applied. Case 1: Dispute over Housing Lease Contract between Wang Mou 1 and Ke Mou (People's Court of Menyuan Hui Autonomous County, Qinghai Province [2018] No. 469, 2221 Minchu) The court held that although the house lease contract between the plaintiff Wang mou 1 (counterclaim defendant) and the defendant ke mou (counterclaim plaintiff) was the true intention of both parties, the whole building system indemnificatory housing project to which the house involved belongs is a large-scale densely populated place, and whether it has passed the fire control acceptance is related to the social and public interest. Therefore, the house involved in this case should be identified as a house that must be checked and accepted by the fire department of the public security organ. However, before the end of the court debate in this case, the whole building to which the house involved belongs has not yet been checked and accepted. In this case, the plaintiff Wang Mou 1 (counterclaim defendant) rented the house involved to the defendant Ke Mou (counterclaim plaintiff) who runs the Internet cafe, which obviously violated the provisions of Article 13 of the Fire Law. When the defendant Ke entered into the contract, he failed to fulfill his duty of careful examination, so that he could not go through the relevant fire-fighting procedures. The parties shall bear the liability for the negligence of the contract for the invalid lease of the house. (II), even if the house has been completed and accepted or fire-fighting acceptance after the conclusion of the lease contract, the contract will be found to be invalid on the grounds that the lease contract was signed and the time agreed to deliver the house was before the fire-fighting acceptance. Case 2: Bole Jixiangsheng Real Estate Development Co., Ltd. and Huo Yiming Housing Lease Contract Dispute (Xinjiang Uygur Autonomous Region Bortala Mongolian Autonomous Prefecture Intermediate People's Court [2021] Xin 27 Min Zhong No. 352) The court of first instance held that: Articles 10 and 13 of the "the People's Republic of China Fire Protection Law" stipulate that construction projects that require fire protection design in accordance with national engineering construction standards shall implement a construction project fire protection design review and acceptance system. Projects that should be subject to fire control acceptance according to law shall not be put into use without fire control acceptance or unqualified fire control acceptance. Although the houses involved in this case have been completed and accepted between November 2017 and April 2020, they are prohibited from being put into use without fire control acceptance. The "Jixiangsheng Commercial Plaza Store Lease Management Contract" signed by Huo Yiming and Bole City Jixiangsheng Real Estate Company on November 2, 2017 violated the mandatory provisions of the the People's Republic of China Fire Protection Law and was an invalid contract. The court of second instance held that on November 2, 2017, Bole city Jixiangsheng Real Estate Company and Huo Yiming signed the "Jixiangsheng Commercial Plaza Lease Management Contract", which agreed that the delivery time of the store would be November 11, 2017. On April 14, 2020, Jixiangsheng Commercial Plaza passed the fire acceptance. Both parties sign the contract and agree to deliver the house before passing the fire inspection. Articles 10 and 13 of the "the People's Republic of China Fire Protection Law" stipulate that construction projects that require fire protection design in accordance with national engineering construction standards shall implement a construction project fire protection design review and acceptance system. Projects that should be subject to fire control acceptance according to law shall not be put into use without fire control acceptance or unqualified fire control acceptance. Therefore, the "Jixiangsheng Commercial Plaza Store Lease Management Contract" signed by Huo Yiming and Bole City Jixiangsheng Real Estate Company on November 2, 2017 violated the mandatory provisions of the the People's Republic of China Fire Protection Law and was an invalid contract. The subject matter of the (III) lease has passed the fire safety acceptance, which is not a necessary condition for determining the validity of the housing lease contract. As long as the subject matter of the lease obtains a construction project planning permit, it is not appropriate to deny the validity of the lease contract. Case 3: Disputes over Lease Contracts between Li Huanliang and Liu Zhenzhu (Intermediate People's Court of Bayingoleng Mongolia Autonomous Prefecture, Xinjiang Uygur Autonomous Region [2023] No. 42, New 28 Minzong) The Court held that: This Court held that Article 153 of the the People's Republic of China Civil Code stipulates that "a civil juristic act that violates the mandatory provisions of laws and administrative regulations is invalid. However, the mandatory provisions do not render the civil juristic act invalid. Civil juristic acts that violate public order and good morals are invalid." The provisions of Article 10 and the third paragraph of Article 13 of the the People's Republic of China Fire Protection Law do not invalidate the civil legal acts signed by both parties to the lease contract. The shop involved in the case is a market shop, and the subject matter of the lease has passed the fire safety acceptance, which is not a necessary condition for determining the validity of the housing lease contract. 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 stipulates that "the lessor has not obtained a construction project planning permit or has not been constructed in accordance with the provisions of the construction project planning permit. The lease contract concluded with the lessee is invalid." The appellee also provided that he had obtained the construction project planning permit, and the court of first instance determined that the lease contract between the two parties was valid and correct, and the court confirmed it. (IV) without completion acceptance and fire acceptance, it is only an administrative provision for delivery and use, not a legal reason for the invalidity of the contract. Case 4: Dispute over Housing Lease Contract between Guiyang Legend Hospital Co., Ltd. and Guizhou Fu 'an Real Estate Development Co., Ltd. (Guiyang Intermediate People's Court of Guizhou Province [2020] Qian 01 Min Zhong No. 4579) The court held that: in addition, for the leased property involved in the case claimed by Legend Hospital without completion acceptance and fire control acceptance, in accordance with Article 61 of the the People's Republic of China Construction Law, "the construction project can only be delivered for use after the completion of the construction project has passed the acceptance; those who have not passed the acceptance or the acceptance shall not be delivered for use." And the second paragraph of Article 13 of the "the People's Republic of China Fire Protection Law", "Construction projects that should be subject to fire protection acceptance according to law, without fire protection acceptance or unqualified fire protection acceptance, shall be prohibited from being put into use; other construction projects that fail to pass random inspections according to law shall be stopped. use." The provisions of the "housing lease contract" should also be invalid reasons, the court believes that without the completion of acceptance and fire acceptance, only the delivery and use of the management provisions, is not the legal reason to determine the invalidity of the contract, so the court also does not accept this. 3. Summary Through the above-mentioned cases, adjudication point of view, there is a certain controversy in the judicial practice of the validity of the house lease contract without fire acceptance. The focus of the dispute is mainly whether the provisions of Article 13 of the Fire Protection Law are administrative mandatory provisions or effective mandatory provisions. Our lawyers tend to think that this provision is a management mandatory provision, because although the provision stipulates that the house is prohibited from being put into use without fire inspection or fire inspection, it does not explicitly state that violation of this provision will result in the invalidity of the contract. And combined with the punishment measures that Article 58 of the Fire Protection Law stipulates that fire control acceptance should be carried out and put into use without acceptance, it can better reflect that the legislative intention of Article 13 of the Fire Protection Law is for the needs of administrative management. Secondly, the contract of external lease without fire acceptance is recognized as effective to better protect the legitimate rights and interests of the contract-keeping party. According to article 157 of the Civil Code, in the event that the contract is invalid, the parties shall return the property or compensate for the discount, and the compensation claimed by the breaching party shall include only the losses caused by the breaching party. And the invalidity of the contract is a cause that both parties can claim, if the lessor in the course of the performance of the contract to claim that the contract is invalid and thus achieve its purpose of termination, the lessee's rights and interests will be further infringed. In the case of the validity of the contract, if the contract stipulates the liability for breach of contract, as long as the agreed breach of contract is not excessively higher than the loss caused to the contract-keeping party, the contract-keeping party has the right to require the breaching party to bear the liability for breach of contract if it fails to cooperate with the fire acceptance procedures or the house fails to pass the fire acceptance. Therefore, it is not appropriate to consider a lease contract that has not passed the fire inspection as an invalid contract. Finally, judging from the judicial practice in recent years and the answers to this question by the local courts, the applicable space for finding the above-mentioned contract invalid will become smaller and smaller. On the one hand, the court in line with the principle of modesty for the determination of the invalidity of the contract more cautious, more respect for the autonomy between the parties, more attention to maintain the stability of the transaction. On the other hand, the "Beijing Higher People's Court's Several Answers on the Trial of Housing Lease Contract Dispute Cases" (Jinggao Fafa (2013] No. 462) also clarified the point of view on this issue. "If one of the parties requests to confirm that the house lease contract is invalid on the grounds that the leased house has not been completed or the fire control acceptance, or the acceptance is unqualified, it will not be supported. If the leased house fails to complete the project or pass the fire control acceptance due to the lessor's reasons, the house does not meet the conditions for use, and the lessee requires the termination of the lease contract in accordance with the (III) provisions of Article 8 of the interpretation of the Supreme people's Court on several issues concerning the specific application of law in the trial of disputes over urban housing lease contracts, which shall be supported." 4. Risk Alert 1. The purpose of the fire inspection and acceptance filing system is to ensure the quality of the house and maintain the safety of people's lives and property. Therefore, although the fire inspection and acceptance does not necessarily lead to the invalidity of the contract, the acceptance is still a prerequisite for the smooth use of the house. It is forbidden to put into use without fire control acceptance or unqualified acceptance; if other construction projects are unqualified after random inspection, there will also be a risk of stopping use. 2. In order to avoid the risk that the purpose of the contract cannot be achieved due to the failure of the fire inspection, it is recommended that the lessor and the lessee clearly agree on the subject of responsibility for fire inspection and related liability for breach of contract in the lease contract.
2023-07-10
12
2023-06
1. Legal basis and legislative spirit The second item of the first paragraph of Article 265 of the Criminal Procedure Law: Women who are pregnant or are breastfeeding their own babies; criminals sentenced to fixed-term imprisonment or criminal detention may be temporarily executed outside prison. The system of temporary execution outside prison is a special system of penalty execution in our country. The application of temporary execution outside prison to women who are pregnant or breastfeeding their babies is the maintenance of the health rights of women and babies, and is an important manifestation of the spirit of humanitarian justice. 2. Who can make a decision on the temporary execution of a pregnant offender? If the offender is found to be pregnant or nursing a baby before the sentence takes effect, the decision of the people's court (court of first instance) that handed over the execution shall be made; if the offender is found to be pregnant or nursing a baby after the sentence takes effect, the prison or detention center shall submit a written opinion to the prison administrative organ at or above the provincial level or the public security organ at or above the municipal level divided into districts for approval. Therefore, if the criminal is in a state of bail before the judgment takes effect, he can apply to the court for temporary execution outside prison when the judgment takes effect. For the application, the court will organize a review and seek the opinions of the procuratorate, and then make a decision on whether to agree to the temporary execution outside prison. 3. Is the sentence offset during the period of temporary execution outside prison? Temporary execution outside prison can be used to offset the sentence. The period of temporary execution outside prison shall be calculated from the date of service of the decision on temporary execution outside prison. Generally speaking, the decision to suspend execution outside prison will be made later than the effective time of the court decision. For example, (2022) Ji 0128 Xing Geng No. 2. On January 25, 2022, the People's Court of Shenze County issued a criminal judgment (2022) Ji 0128 Xingchu No. 1, and sentenced the criminal Song to six months in prison for obstructing credit card management. After the judgment came into effect, the current criminal Song Mou applied for temporary execution outside prison on the grounds of "pregnancy. The Shenze County People's Court solicited the opinions of the Shenze County People's Procuratorate and the Shenze County Judicial Bureau in writing, and both believed that the criminal Song Ce met the conditions for temporary execution outside prison. On May 5, 2022, the criminal Song Mou was temporarily sentenced to execution outside prison. 4. How long is the temporary execution time outside prison? China's criminal law has no explicit provisions on lactation during temporary execution outside prison. However, according to Article 63 of the labor law, Article 9 of the special provisions on labor protection of female employees and Article 9 of the interpretation of the Supreme People's Court on several issues concerning the specific application of law in the trial of crimes of trafficking in women and children, the definition of "infant" is consistent, that is, children under one year old. Based on this, in judicial practice, "lactation" is generally understood as "the period of breastfeeding one's baby under one year of age". That is, this period should be up to 1 year, from the date of birth to the following year's birthday. Because this is natural time, there is no situation that can prolong lactation. Thus, if the offender has not given birth at the time of the court's decision to suspend the execution outside prison, the period of suspension outside prison extends from the date of service of the decision to one year after the birth of the child. 5. Can I continue to apply for execution outside prison if I become pregnant again during the temporary execution outside prison? The Criminal Procedure Law and the Regulations on Temporary Execution Outside Prison jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the National Health and Family Planning Commission only stipulate the circumstances under which temporary execution outside prison can be temporarily executed. The number of times is specified. Therefore, if a woman who is breastfeeding her baby becomes pregnant again during the period of temporary execution outside prison, she can continue to apply for temporary execution outside prison. For example, case number:(2016) Ji 0426 Xing Zhi Zi No. 178-1, the criminal Ren Mouxiang is a woman who is breastfeeding her baby. The Shexian County People's Court made a decision on June 15, 2017 to temporarily execute her outside prison. When the temporary execution outside prison expired, the criminal Ren Mouxiang applied for temporary execution outside prison with another pregnancy and provided relevant supporting materials. On August 13, 2018, the Shexian County Court once again made a decision on its temporary execution outside prison. 6. Abortion during temporary execution outside prison. How to calculate the period of temporary execution outside prison? Once a pregnant woman has a miscarriage, she does not meet the conditions for temporary execution outside prison. For those whose sentences have not expired, continuing to reform in the community cannot achieve the purpose of punishment, and they need to be admitted to prison in time. Therefore, during the period of temporary execution outside prison, if the community correction staff find that the offender has miscarried, they will generally submit a recommendation for admission to the court that made the execution outside prison. After review, the court will make a decision on the execution of imprisonment in accordance with Article 268 of the the People's Republic of China Criminal Procedure Law. In judicial practice, the period during which the offender is admitted to correction after miscarriage is not allowed to offset the sentence. For example, (2021) Ji 0128 Punishment No. 4, after the judgment came into effect, the criminal Gu Moumei applied to the court for temporary execution outside prison in 2020 and 2021 on the grounds that she was in the "breastfeeding period" and "pregnant". After review, the court decided to temporarily execute him outside prison. In the process of execution, the staff of the Bureau of Justice found that Gu Moumei had miscarried, and suggested that the criminal Gu Moumei should be put in prison for execution on the grounds that the situation of temporary execution outside prison disappeared but the sentence was not expired. After investigation, the court found that the criminal Gu Moumei miscarried on October 1, 2021, and the situation of temporary execution outside prison has disappeared, and the sentence has not expired, and should be sent to prison for execution, and the criminal Gu Moumei was temporarily executed outside prison. Until October 1, 2021. 7. Is the offender a woman who is pregnant or breastfeeding her own baby necessarily subject to temporary execution outside prison? The Criminal Procedure Law stipulates that for criminals who are pregnant or breastfeeding, "can" apply to execution outside prison rather than "should", that is to say, it is not inevitable to apply execution outside prison to such criminals. In judicial practice, specific judgments should be made according to the criminals' performance in reform and attitude of confession and repentance. Of course, after admission, women who are pregnant or breast-feeding their babies will be given humane care, and temporary places like "homes" will be set up in the supervision places to try not to cause harm to innocent babies. When their breastfeeding period expires, they will be immediately handed over to their relatives. If there are no relatives or relatives who are unwilling to raise them, they can be raised by civil affairs agencies and social welfare agencies.
2023-06-12
09
2023-06
Viewpoint | A brief analysis of the consensus termination of the labor contract.
Article 36 of the "Labor Contract Law" stipulates that the employer and the employee may terminate the labor contract by consensus. Because of its flexibility and low risk, consensus cancellation is also one of the most used ways of cancellation by employers. Referee's point of view 1. Unless the laborer proposes to terminate the labor contract in accordance with Article 38 of the Labor Contract Law, the laborer proposes to terminate the labor contract, and both parties agree to terminate the labor contract, the employer may not pay economic compensation for the termination of the labor contract. 2. If the employer proposes to terminate the labor contract and both parties agree to terminate the labor contract, the employer shall pay the employee economic compensation for the termination of the labor contract. 3. If the labor contract is terminated by consensus, it shall not be subject to the restriction of 30 days' written notice as stipulated in Articles 37 and 40 of the Labor Contract Law. 4. Except for the reasons provided by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement shall be null and void, except where the agreement of the parties is specific to the statutory reasons. 5. The agreement reached between the worker and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, Coercion or take advantage of the danger of others shall be deemed valid. If the agreement is significantly misunderstood or is obviously unfair, and the parties request to cancel it, the people's court shall support it. 1. Dissolution of Labor Contract and Economic Compensation by Consensus According to Item 2 of Article 46 of the Labor Contract Law, if the employer proposes to terminate the labor contract to the laborer in accordance with Article 36 of the Labor Contract Law and terminates the labor contract through consultation with the laborer, the employer shall pay the laborer Economic compensation. If the laborer proposes to terminate the labor contract and negotiates with the employer to terminate the labor contract, the law does not require the employer to pay economic compensation to the laborer. However, if the employer and the employee reach an agreement to pay economic compensation to the employee, the agreement shall be valid. Dissolution of the labor contract and the right to rescind the contract by consensus of the 2. Article 36 of the Labor Contract Law clearly stipulates that the employer and the employee may terminate the labor contract by consensus. However, this does not mean that both parties to the labor relationship can agree on the cause of termination of the labor contract other than the legal cause in the labor contract, that is, there is no agreed right of termination in the field of labor contract. According to the provisions of the Labor Contract Law, the employer can only unilaterally terminate the labor contract in accordance with the fault dismissal system stipulated in Article 39 of the Law, the no-fault dismissal system stipulated in Article 40, and the economic layoff system stipulated in Article 41, except for the termination of the labor contract by consensus between the two parties in the labor relationship. The right of workers to terminate the labor contract is almost unlimited. Under normal circumstances, they only need to notify the employer 30 days in advance or 3 days in advance during the probation period. Therefore, the legislative purpose of the "Labor Contract Law" is to restrict the employer's right to terminate the labor contract in order to maintain stable labor relations. If the parties are allowed to agree on the reasons for the exercise of the right of discharge, it is bound to overrun the legislative purpose of the Labor Contract Law. In summary, both parties to the labor relationship can terminate the labor contract by consensus, but they cannot break through the legal cause of termination in the labor contract in advance and agree on the right to terminate the contract. Except for the reasons stipulated by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement is invalid, except that the parties' agreement is specific to the statutory reasons. The meaning of the 3. to terminate the labor contract by consensus is the limit. In practice, when the two parties to the labor relationship negotiate the termination of the labor contract, they often negotiate whether to give economic compensation and how much economic compensation to give. When the economic compensation and other matters are not agreed, they will not sign an agreement to terminate the labor contract. However, there are also labor relations between the two parties in the economic compensation is not negotiated when the first signed the termination of the labor contract agreement, and then on the economic compensation matters dispute, one party on this ground to deny the validity of the termination of the labor contract agreement. The key to dealing with this issue is to clarify the meaning of the termination of the labor contract by consensus. The consensual termination of the labor contract is a consensual termination arrangement for the labor contract relationship between the two parties, and the meaning of the consensual termination is independent in the absence of evidence to prove that there are other conditional factors. After the two parties have reached an agreement to terminate the labor contract, if one party goes back on its word, it shall not be supported. On the other hand, if there is evidence that the termination of the labor contract is subject to certain conditions, the effect of the termination of the labor contract does not occur when the conditions are not fulfilled. 4. Consequences of Dissolution of Labor Contract by Consensus If both parties to the labor relationship terminate the labor contract by consensus, the following legal consequences will occur according to law: 1. If the laborer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer does not need to pay economic compensation; if the employer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer needs to pay economic compensation in accordance with the law. 2. If the two parties to the labor relationship agree that the employer is not required to pay economic compensation, if the agreement does not violate the true intention of the parties, the agreement shall be followed in practice. 3. The employer shall, within 15 days after the termination of the labor contract by both parties, complete the formalities for the transfer of archives and social security relations for the workers in accordance with the law. If the delay or refusal to do so causes losses to the worker, the worker may request compensation from the employer. Key points of practice 1. Pay attention to the examination of whether the party proposing the termination of the labor contract is the worker or the employer. 2. Pay attention to the examination of whether the termination of the labor contract agreement has been revoked or legally invalid. 3. Pay attention to the scope of the meaning of consensus, whether it only includes the termination of the labor contract itself, or also includes other matters such as economic compensation. 4. Pay attention to review whether the termination of the labor contract by consensus is premised on certain conditions and whether the prerequisite conditions have been fulfilled. If not, the reasons should be examined. Practical Operation Guidance It is recommended that the employer or employee retain the evidence of the whole process of negotiating the termination of the labor contract.
2023-06-09
01
2023-06
In recent years, the number of corporate bankruptcy cases has increased year by year. From accepting bankruptcy applications to declaring corporate bankruptcy, to corporate tax registration cancellation, a series of tax issues will be involved, which is easy to cause tax-related disputes. This paper discusses whether the tax late fees involved in the bankruptcy business of enterprises can exceed the principal amount of tax. According to Article 32 of the the People's Republic of China Tax Collection and Administration Law, if a taxpayer fails to pay the tax within the prescribed time limit, and if the withholding agent fails to pay the tax within the prescribed time limit, the tax authority shall, in addition to ordering the payment within a time limit, from the date of payment of the tax, a late fee of five ten thousandths of the overdue tax shall be charged on a daily basis. The provision does not limit the upper limit of late payment fees, which will be calculated as long as the taxpayer owes tax until the tax is paid. According to the Announcement of the State Administration of Taxation on Certain Matters Concerning Tax Administration (State Administration of Taxation Announcement No. 48 of 2019), taxes owed by enterprises, late fees, fines, and interest arising from special tax adjustments shall be calculated and determined on the date on which the people's court decides to accept the bankruptcy application. The "the People's Republic of China Administrative Compulsory Law" stipulates that if an administrative agency makes an administrative decision on the obligation to pay money in accordance with the law, if the party fails to perform within the time limit, the administrative agency may impose a fine or late fee in accordance with the law. The standards for imposing additional fines or late fees shall be notified to the parties concerned. The amount of the additional fine or late fee shall not exceed the amount of the obligation to pay money. On August 22, 2012, the Tax Service Department of the State Administration of Taxation replied to the taxpayer's question on whether the tax late fee can exceed the principal: "The tax late fee increase shall be implemented in accordance with the collection and management law, and the administrative enforcement law shall not apply, and there is no question of whether the tax principal can be exceeded. If the late fee increase data exceeds the principal, it shall be increased in accordance with the provisions of the collection and management law." In judicial proceedings, some courts held that tax late fees could not exceed the principal amount. For example, in the case of the dispute over the confirmation of bankruptcy claims between the Huaiyin District Taxation Bureau of the State Administration of Taxation and Shandong Building Materials Corporation [case No.:(2019) Lu 01 Min Zhong No. 4926], the judgment of the Jinan Intermediate people's Court is that the additional late fee is a punishment measure for taxpayers not paying taxes within the time limit prescribed by law, and a way of administrative enforcement. The second paragraph of Article 45 of the "the People's Republic of China Administrative Enforcement Law" stipulates that "the amount of a fine or late fee shall not exceed the amount of the obligation to pay money". The amount of late fees determined by the manager of the building materials company is in accordance with the law. The Huaiyin District Taxation Bureau requires the manager of the building materials company to confirm the late payment of the tax exceeding the principal, which does not comply with the law and should not be supported. In addition, in the case of Pingshan County Jingye Smelting Co., Ltd. and Nandian Taxation Branch of Pingshan County Taxation Bureau of the State Administration of Taxation and the Tax Administration (Taxation) of Pingshan County Taxation Bureau of the State Administration of Taxation [Case No.:(2020) Ji 0131 Xingchu No. 7], the judgment of the People's Court of Pingshan County of Hebei Province is that the overdue fine for this case far exceeds the tax, with reference to Article 45 of the the People's Republic of China Administrative Enforcement Law: "If the administrative organ makes an administrative decision on the obligation to pay money according to law, and the party concerned fails to perform it within the time limit, the administrative organ may impose a fine or late fee according to law. The standards for imposing additional fines or late fees shall be notified to the parties concerned. The amount of the additional fine or late fee shall not exceed the amount of the obligation to pay money." In this case, the Nandian Taxation Branch of Pingshan County Taxation Bureau of the State Administration of Taxation and the Pingshan County Taxation Bureau of the State Administration of Taxation actually charged Pingshan County Jingye Smelting Co., Ltd. a late fee of 14397072.96 yuan from November 1, 1997 to November 30, 1997. The late fee is obviously improperly calculated and should be corrected. The amount of late fee should not exceed the amount of late tax, 2439975.08 yuan, except for the tax payable of 2439975.08 yuan and late fee of 2439975.08 yuan, the State Administration of Taxation Pingshan County Taxation Bureau Nandian Taxation Branch and the State Administration of Taxation Pingshan County Taxation Bureau collected more than 11957097.88 yuan in late fees from Pingshan County Jingye Smelting Co., Ltd. and should be refunded. As a tax late fee, which law is applicable? It is argued that the the People's Republic of China Tax Collection and Management Law is a special law, the the People's Republic of China Administrative Enforcement Law is a common law, and according to the provisions of the the People's Republic of China Legislation Law, the special law is superior to the common law, and the the People's Republic of China Tax Collection and Management Law should be applied when calculating the tax late fee. There is also a view that the tax authority is also an administrative agency, and its enforcement measures against taxpayers are also subject to the "the People's Republic of China Administrative Enforcement Law". Therefore, the tax principal cannot be exceeded when calculating the tax late fee. In short, in the current tax environment, the legal environment, tax late fees can exceed the amount of tax principal is still a controversial topic. In the bankruptcy business, it is recommended that the administrator should actively communicate and coordinate with the competent tax authorities on whether the tax late fees involved in the bankruptcy business can exceed the principal amount of the tax, so as to avoid tax-related disputes or other liability disputes as far as possible. Deal with tax issues in bankruptcy proceedings in compliance with the law, effectively avoid the risk of practice, and promote the smooth progress of bankruptcy business.
2023-06-01
30
2023-05
Viewpoint | Analysis of late fees in corporate bankruptcy business
In recent years, the number of corporate bankruptcy cases has increased year by year. From accepting bankruptcy applications to declaring corporate bankruptcy, to corporate tax registration cancellation, a series of tax issues will be involved, which is easy to cause tax-related disputes. This paper discusses the problem of late fees involved in the business of enterprise bankruptcy. The nature of tax late fees formed before the acceptance of 1. bankruptcy cases. The Reply of the Supreme People's Court on the Issue of Whether the Claim for Confirmation of Claims by Tax Authorities on Late Fees Arising from Tax Arrears of Bankrupt Enterprises should be Accepted (Fa Shi [2012] No. 9) stipulates that the people's court shall accept the claim for confirmation of claims filed by tax authorities on late fees arising from tax arrears of bankrupt enterprises in accordance with the law. In accordance with the relevant provisions of the Enterprise Bankruptcy Law and the Tax Collection and Administration Law, the late fees incurred by the bankrupt enterprise due to the payment of taxes before the bankruptcy case is accepted are ordinary bankruptcy claims. Whether the social security late fees incurred before the acceptance of the 2. bankruptcy petition are bankruptcy claims. Article 3 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the (III) for Judicial Interpretation of the Enterprise Bankruptcy Law) stipulates that after the bankruptcy application is accepted, the overdue fine arising from the debtor's outstanding payment, including the overdue interest and labor insurance premium that should be doubled if the debtor fails to perform the effective legal document, The people's court will not confirm it. Article 61 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases (Fa Shi [2002] No. 23) stipulates that the following creditor's rights are not bankruptcy creditor's rights: (2) After the people's court accepts the bankruptcy case, the debtor fails to pay the overdue fine for the amount due, including the overdue interest and labor insurance premium that the debtor should double if he fails to implement the effective legal documents. This provision is consistent with the spirit of Article 3 of the above-mentioned (III) on Judicial Interpretation of Enterprise Bankruptcy Law. Notice of the Second Civil Trial Division of the Higher People's Court of Jiangsu Province on Printing and Distributing the Guidelines for the Trial of Bankruptcy Cases (Revised Edition) (Su Gao Fa Dian [2017] No. 794) holds that: "7. bankruptcy claims and the order of repayment ...... The following claims do not belong to bankruptcy claims: First, the administrative and judicial organs impose fines, fines and other related costs on the debtor. Second, the debtor's failure to implement the effective legal instrument should double the delay interest and the late payment of labor insurance premiums. Article 54 of the Notice of Shenzhen Intermediate People's Court on Issuing the Guidelines for the Examination and Determination of Creditor's Rights in Bankruptcy Cases (No. 5 [2017] of Shenzhen Intermediate People's Court) also holds that:" The following claims declared by creditors shall not be determined: (1) fines, fines and other related expenses imposed on the debtor by administrative and judicial organs; (II) late fees for delay interest and labor insurance premiums that should be doubled if the debtor fails to perform the effective legal documents; ...... "Both documents provide that" delayed interest and late fees are not bankruptcy claims ". In the case of the dispute over the confirmation of ordinary bankruptcy creditor's rights between the yi county tax bureau of the state administration of taxation and Huangshan zhiheng investment co., ltd. [case number:(2019) wan 1023 minchu no 363], the tax authorities believed that according to article 3 of the (III) on judicial interpretation of enterprise bankruptcy law, "after the bankruptcy application is accepted, the overdue fine arising from the debtor's arrears includes the overdue interest and labor insurance premium that the debtor should be doubled if the debtor fails to fulfill the effective legal documents, if a creditor declares as a bankruptcy claim, the people's court shall not confirm it", and the bankruptcy claim shall be confirmed at the point in time of bankruptcy acceptance. That is, the late payment of social insurance premiums prior to bankruptcy acceptance is a bankruptcy claim. However, the People's Court of Yixian County, Anhui Province held that the provisions of the law did not reverse the late fees and double the deferred interest paid before the bankruptcy application was accepted, which could be recognized as bankruptcy claims. The late payment of social insurance premiums is punitive and has a specific object of implementation. If it is determined to be a bankruptcy claim, it is all creditors who are actually punished, which is contrary to the original intention of the measure and the spirit of the bankruptcy law to protect all creditors fairly. In the end, the court dismissed the tax authorities' claims. There has been controversy over whether the social security late payment fee arising before the acceptance of the bankruptcy application is a bankruptcy claim, with some judicial precedents determining it as a bankruptcy claim and some judicial precedents not confirming it as a bankruptcy claim. China is not a case law country, and the details of each case vary widely, the above-mentioned case of the judgment point of view provides a new way of thinking, that is, "social insurance premium late fees with a punitive, with a specific object of implementation. If determined as a bankruptcy claim, the actual punishment is all creditors, contrary to the spirit of the bankruptcy law fair protection of all creditors." In the bankruptcy business, it is recommended that the administrator should attach great importance to the tax late fees involved in the bankruptcy business, actively communicate and coordinate with the competent tax authorities, and avoid tax-related disputes or other liability disputes as far as possible. Deal with tax issues in bankruptcy proceedings in compliance with the law, effectively avoid the risk of practice, and promote the smooth progress of bankruptcy business.
2023-05-30
29
2023-05
Viewpoint... The defense point of the crime of fund-raising fraud.
There is a rumor in the market: "Success is a legendary entrepreneur, and failure is a fund-raising fraud criminal." The company's operation and project development are inseparable from the support of funds. Therefore, fund-raising has become a means for many people to expand their business scale. However, in practice, some illegal personnel illegally raise funds by means of fraud, illegally occupy the funds raised by others, and cause economic losses to others, which will constitute the crime of fund-raising fraud. 1. fund-raising fraud legal provisions Article 192 of the Criminal Law stipulates that for the purpose of illegal possession, anyone who uses fraudulent methods to illegally raise funds shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and a fine of not more than 50,000 yuan but not more than 500,000 yuan. The amount is particularly serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property. Sentencing Rules for the Crime of 2. Fund-raising Fraud 1, the amount of individual fund-raising fraud in 100000 yuan or more is "large amount", the amount of unit fund-raising fraud in 500000 yuan or more is "large amount", should be filed for prosecution, sentenced to not more than five years of fixed-term imprisonment or criminal detention, and fined; 2, the amount of individual fund-raising fraud in 300000 yuan or more is "huge amount" (special circumstances are 240000), the amount of unit fund-raising fraud in 1.5 million yuan or more is "huge amount" (special circumstances are 1.2 million), sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and fined; 3. If the amount of individual fund-raising fraud is above 1 million yuan, it is "extremely large" (800000 in special circumstances), and if the amount of unit fund-raising fraud is above 5 million yuan, it is "extremely large" (4 million in special circumstances), and shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, and fined or confiscated property; Other (particularly) serious circumstances refer to:(1) impersonating a state organ or public welfare organization to carry out fund-raising fraud;(2) causing the victim to commit suicide, mental disorder or other serious consequences;(3) the victim is mainly a disabled person, the elderly or a person who is incapacitated. The crime of 3. fund-raising fraud must have three elements at the same time. (1) for the purpose of illegal possession; (2) the use of fraudulent methods; 3. Illegal fundraising. 4. Fundraising Fraud Defense Point The first category, not guilty point Innocence point one, the perpetrator does not have the purpose of illegal possession. The Supreme People's Court on the trial of illegal fund-raising criminal cases of the specific application of law. The interpretation of several issues (2022) stipulates that the use of fraudulent methods to illegally raise funds under one of the following circumstances can be regarded as "for the purpose of illegal possession": (I) the funds raised are not used for production and business operations or are used for production and business operations and the scale of the funds raised is obviously out of proportion, so that the funds raised cannot be returned; (II) wantonly squandering fund-raising funds, resulting in the non-return of the fund-raising funds; (III) evades hiding with fund-raising funds; (IV) use the funds raised for illegal and criminal activities; (V) to withdraw, transfer funds, conceal property and evade the return of funds; (VI) concealing or destroying accounts, or engaging in false bankruptcy or bankruptcy to evade the return of funds; The (VII) refuses to account for the whereabouts of the funds and evades the return of the funds; (VIII) other circumstances in which the purpose of illegal possession can be determined. The purpose of illegal possession in the crime of fund-raising fraud should be determined by distinguishing the circumstances. If part of the illegal fund-raising behavior of the perpetrator has the purpose of illegal possession, the fund-raising money involved in this part of the illegal fund-raising behavior shall be convicted and punished as the crime of fund-raising fraud; if some of the illegal fund-raising joint crime has the purpose of illegal possession, if the other actors have no common intention and behavior of illegally possessing the fund-raising money, the perpetrator with the purpose of illegal possession shall be convicted and punished for the crime of fund-raising fraud. Performance that does not have the purpose of illegal occupation: (I) evidence in the record does not reflect the perpetrator's profligacy or illegal transfer of property. (II), after the turnover of funds, the actor takes positive measures such as personal fund-raising, settlement with the relative or confirmation of the amount of debt can confirm that the subjective purpose of illegal possession is not. The funds absorbed by the (III) actor are mainly used in normal production and business activities, and do not belong to the situation with the purpose of illegal possession. Not guilty point 2. the perpetrator did not use the "fraud method" "Fraud method" refers to the means by which the perpetrator uses fictitious fund-raising purposes and uses false supporting documents and high rates of return as bait to defraud fund-raising funds. In practice, the methods often adopted by the actors are: fabricating enterprises or enterprise plans that do not actually exist, forging relevant approval documents, and defrauding the trust of the public in the name of breeding, planting, and producing products that can obtain high returns. I believe that its investment will be able to get several times and dozens of times the return, but in fact, most of these are illusory. Objectively, the specific manifestations of the lack of fraudulent means of fund-raising are: (I) there is no evidence to prove that the perpetrator has the intention to commit fraud. (II) actors objectively did not commit fraud and subjectively did not have the common intent to defraud clients of their investments. The perpetrator of the (III) did not use fraudulent means such as fictitious fund-raising purposes, using false supporting documents and high rates of return as bait to obtain fund-raising funds. The (IV) actor's absorption of funds is a function arranged by the performing unit and is unaware of the purpose and whereabouts of the unit after receiving the money. The acquittal point 3. did not implement the illegal absorption of public deposits. The actor's loan object is his comrades, colleagues, relatives, friends and other specific personnel, not the social unspecific object, not the public. The point of not guilty 4. the argument of insufficient evidence As the crime of fund-raising fraud will inevitably involve the problem of amount calculation and verification, the appraisal opinions in the form of "report" and "calculation and verification report" are the key evidence of the crime of fund-raising fraud. Starting from the appraisal opinions, the argument of insufficient evidence is often effective. Defense lawyers can cross-examine whether the appraisal opinions have the qualification of evidence and the strength of proof through the entrusting unit, appraisal unit, appraisal method, process, materials and other aspects in the process of making the appraisal opinions. The second category, misdemeanor defense point: does not constitute the crime of fund-raising fraud, constitutes the crime of illegally absorbing public deposits. To determine whether the defendant constitutes the crime of fund-raising fraud, we should focus on the "coming" and "going" of funds. If the perpetrator only participates in the absorption of funds according to the arrangement of the unit, but does not know the purpose and whereabouts of the unit after receiving the money, he shall be convicted and punished for the crime of illegally absorbing public deposits, and shall not be classified as the crime of fund-raising fraud; If the whereabouts of the fund-raising funds have not been identified, it cannot be determined that the perpetrator has the purpose of illegal possession of the fund-raising funds. Category III, light points If the crime is light, it constitutes a unit crime, not an individual crime, and shall be investigated for criminal responsibility for the unit crime; The point of misdemeanor 2. the amount of the crime. The amount of fund-raising fraud should be calculated based on the amount actually defrauded by the perpetrator; the part that has been returned before the incident should be deducted; but the advertising fees, intermediary fees, handling fees, rebates, or expenses paid by the perpetrator for the implementation of fund-raising fraud activities For bribes, gifts and other expenses, they shall not be deducted; the interest paid by the perpetrator for the implementation of fund-raising fraud activities shall be included in the amount of the fraud, except for the principal. The third point of the light crime: the argument of status and role. The crime of fund-raising fraud mostly occurs in the form of gangs. The status, role and amount of money involved in each unit should be treated differently. Those who are not involved in fund-raising fraud within the unit should not be dealt with criminally. For those who are involved in fund-raising fraud, but are not the main responsible personnel in the unit, they should start with the amount of money involved and the amount of money (whether from relatives and friends), etc, distinguish from the main responsible person to get a lighter punishment.
2023-05-29
23
2023-05
Abstract: The geo-economic development of the "Belt and Road" has not only increased investment opportunities in the region, but also brought more investment disputes. However, ISDS, as a mechanism to resolve investment disputes between investors and host countries, has gradually shown problems such as low efficiency, high cost and lack of transparency. Up to now, there is no international consensus on ISDS reform, and each reform measure has its own advantages and disadvantages, and it is not perfect. When choosing the reform mode of ISDS mechanism, China should adhere to the gradual reform of ISDS, and actively build the "Belt and Road" international investment dispute settlement institution and promote the ADR mechanism to protect the investment interests of Chinese overseas investors. Key words: The Belt and Road, ISDS reform, international investment, arbitration 1. Introduction In 2013, President Xi Jinping proposed the great strategy of "One Belt One Road", which aims to promote the reform of the global economic and trade governance system and promote the construction of a community of human destiny. China adheres to the concept of "consultation, co-construction and sharing". In the past nine years, China has signed 205 cooperation documents with 171 countries and international organizations to jointly build the "Belt and Road. [1] The degree of investment cooperation between China and countries along the route is gradually deepening, but in the context of political, cultural and economic diversification of various countries, disputes between investors and host countries are inevitable. [2] In recent years, with the increase in the number of cases referred to the International Centre for Settlement of Investment Disputes (ICSID), the investor-State dispute settlement mechanism (ISDS) is time-consuming, costly and less transparent. [3] As a result, the academic community began to pay attention to the shortcomings exposed by the ISDS mechanism and put forward many different suggestions for improvement, such as Anthea Roberts that there are three main ways to reform the ISDS mechanism: gradual, systematic and paradigm reform [4]. That is, to continue to follow the ISDS mechanism and to build on it, such as the establishment of an appellate body [5]; to abandon the existing ISDS in favor of an investment court or to abolish the ISDS mechanism altogether, thereby turning to the domestic judicial system. [6] In addition, the establishment of the "Belt and Road" international investment dispute settlement institution and specialized mediation institutions are conducive to the settlement of international investment disputes. However, each reform measure is imperfect, that is, it cannot meet the needs of all countries along the "Belt and Road". Therefore, it is the best policy to learn from all imperfect options and gradually innovate the international investment dispute settlement mechanism. This paper intends to start from the dilemma faced by ISDS, first of all, the analysis of the current ISDS mechanism of various shortcomings, such as low transparency, arbitrator impartiality can not be guaranteed. Secondly, based on the background of the "Belt and Road" and combined with the characteristics of the "Belt and Road" investment risk, the impact of the mainstream ISDS reform on the "Belt and Road" strategy is further discussed. Finally, from the perspective of China, this paper analyzes the imperfections of each reform mode, and puts forward some suggestions on the trade-off of the reform mode. Review of 2. ISDS Mechanism The main contradiction of international investment disputes is concentrated between investors and host countries, and the traditional dispute settlement mechanism between countries (such as WTO) is not enough to effectively solve the existing contradictions. The ISDS mechanism came into being in this context. (I) Brief Introduction of ISDS Mechanism ISDS refers to a way for investors to resolve investment disputes through arbitration in the belief that the host country has violated its obligations to protect the interests of investors in international investment agreements (IIAs) [7]. Investment disputes have existed since the beginning of people's ability to transport goods across borders. With the increase in international trade, the more economically developed countries are more likely to transfer their capital or goods to other countries, but the rise of nationalization movements in Latin America, Asia, Africa and other regions has made capital-exporting countries hesitate to continue to invest abroad without adequate legal guarantees [8]. For investors, in the absence of the ISDS mechanism, when the capital-importing country expropriates the assets of foreign investors, it is generally only through the domestic judicial or diplomatic relief of the host country. If the domestic court system of the host country is chosen to safeguard its own rights and interests, for the protection of domestic interests, the courts may not handle disputes in full accordance with the principle of fairness, which is not conducive to the protection of the interests of foreign investors [9]. Therefore, investors prefer to choose international arbitration to defend their rights and interests rather than domestic courts. [10] Under the framework of ISDS, investment disputes between investors and host countries can be arbitrated through an arbitral tribunal composed of non-host country nationals, a procedure that is more fair and effective [11]. The signing of the New York Convention in 1958 made foreign arbitral awards enforceable for signatory countries and promoted more investors to seek to defend their rights through arbitration. Germany and Pakistan signed a bilateral investment agreement (BIT) in 1959 to introduce ISDS clauses for the first time. After that, ICSID, an independent agency affiliated to the World Bank, and the United Nations Commission on International Trade Law (UNCITRAL) worked together to formulate ISDS rules and continuously put forward reform suggestions to reduce political interference in the settlement of investment disputes between investors and countries, thus making the ISDS mechanism more fair at the legal level [11]. Developing countries hope to help their economies develop through foreign investment, and foreign investors also open up the host country's market and make a profit in the process. The purpose of ISDS to protect the rights of foreign investors and promote international investment is consistent with the goal of mutual benefit for investors and countries [12], so an increasing number of bilateral and multilateral investment agreements, including the North American Free Trade Agreement (NAFTA), include ISDS provisions. Before the 1990s, IIAs hardly involved ISDS,[13] followed by a surge in foreign direct investment (FDI) and a rapid increase in the number of IIAs [14]. A total of 3360 IIAs have been signed by 2020 [15], and most of these BITs have adopted ISDS to resolve investment disputes [14]. The ISDS caseload has reached 1104 in 2020 [16]. (II) the defects of ISDS 1. Low transparency and lack of consistency in arbitral awards Although arbitration is an effective method to protect foreign investors from unfair treatment by domestic courts, and the high efficiency and confidentiality of the "final ruling" can protect "trade secrets", these two characteristics are the advantages of arbitration for justice, but it also brings troubles to the settlement of disputes between investors and the state. In the investment disputes between investors and countries, personal interests and public interests are inseparable. International investment arbitration has the characteristics of personal goods and is dominated by contracts and market forces, especially from the appointment of arbitrators. At the same time, international investment arbitration also has the characteristics of "public goods". The arbitration result should protect the public interest, because the arbitration content is closely related to the interests of citizens of a country [17], therefore, "trade secrets" should not have a central position in ISDS. Concerns about transparency reached a tipping point in 2007 when Bolivia submitted a withdrawal declaration to ICSID on the grounds of low transparency, followed by countries such as Ecuador, which also withdrew from ICSID [18]. In the ISDS mechanism, transparency is related to the disclosure of information, the notice of arbitration, the relevant procedural documents and their submission and final award, that is to say, ISDS has the disadvantages of not disclosing procedural documents, keeping the litigation process confidential, and making it difficult for citizens to know the arbitration information. [19] Although rules on transparency have been included in many IIAs, such as the EU's trade agreements with Singapore and other countries, the issue of transparency has been highlighted in the UNCITRAL Working Group III report, and there are ongoing attempts to reform how to improve transparency in ISDS [20], but with little effect. Low transparency not only affects the disclosure of information, but also reduces the predictability and consistency of arbitration results. There are many reasons for the lack of consistency in arbitral awards, such as the fact that arbitrations are based on different investment rules, the fact that BITs are vague and outdated, and the fact that different arbitral institutions may produce different results. However, transparency remains an important reason for the low predictability of the outcome of arbitration. In investment arbitration, the role of jurisprudence is significant. Although the award of ISDS is not binding on the subsequent arbitral tribunal, it is also the arbitrator's responsibility to maintain the stability of the decision. The arbitrator's inability to obtain the previous case in time makes it impossible for the arbitrator to hear the case with reference to the precedent when dealing with similar cases. In addition, the arbitrator will adopt different methods for the interpretation of the same clause, resulting in different or even opposite results. [21] 2, the cost of litigation is too high The cost of ISDS is divided into time cost and money cost. In 2014, Professor Daniel often made statistics on some cases of litigation. The average litigation time in the cases collected by Daniel often reached 48.9 months, and the average length of cases won by applicants was as high as 55 months. Especially in special circumstances, the litigation time exceeds 129 months, and the time cost is huge [22]. The cost of money can be broadly divided into the costs of the mediation phase, the costs of the arbitral tribunal, the fees of attorneys and the costs of compensation after the award. As early as 1960, Seidl-Hohenveldern argued that "international arbitration has advantages over a permanent foreign investment court, especially because it is less expensive and more attractive to foreign investors [23]." However, with the development of investment arbitration, the cost of arbitration has gradually increased. According to the report of the UNCITRAL Working Group III, the average cost of each party in an ISDS case is above $8 million and may exceed $30 million [24]. The expenses of the arbitration tribunal (mainly including the expenses paid to the arbitrators and the related expenses of the arbitration procedure) are one of the smaller expenses in the whole arbitration process. However, according to statistics, the expenses of the arbitration tribunal in NAFTA are between US $1 million and US $3 million, the expenses of the arbitration tribunal in ICSID cases are about US $1.04 million, and the UNCITRAL arbitration expenses are also US $1.4 million [14], which are not small expenses for investors. In addition, legal fees, expert witnesses and other costs are also quite expensive for both parties. Lack of impartiality of arbitrators ISDS arbitrations are ad hoc and, according to the ICSID rules on the composition of the arbitral tribunal, the arbitral tribunal is generally composed of three persons, one arbitrator appointed by one of the parties and the third arbitrator chosen by agreement or appointed by the arbitration center [25]. ISDS arbitration inherits international commercial arbitration, arbitrators are different from domestic court judges, on the one hand, they are not obliged to uphold the constitution and laws of the host country, so many scholars worry that arbitration will give foreign investors greater rights to challenge the public interest of the host country and even endanger national security. On the other hand, most of the judges of the courts are life-long or long-term, but many of the arbitrators in ISDS arbitral tribunals are lawyers, and the parties are required to pay them high arbitration fees. Arbitrators will inevitably be more attentive to their "employers" after accepting their appointments, thus maintaining long-term business [11]. In addition, the arbitrator's fee is more than $600 per hour, in which case the arbitrator will not immediately dismiss the case if it does not meet the arbitration criteria [26]. At the same time, due to the private nature of arbitration, arbitrators do not have to be as accountable to the public as judges, which poses a threat to the protection of the public interest of the host country. 4. Other defects Mediation is an important part in both court litigation and arbitration, which was originally an effective way to make up for the inefficiency of arbitration and save arbitration costs. However, according to ICSID data, a total of 11 cases were closed through mediation by 2021, which shows that mediation is less used in practice [27]. In addition, ISDS lacks an appeal mechanism and currently only allows for procedural review of arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention), without a substantive review of the correctness and consistency of the outcome of the arbitration. 3. the Diversified Reform of the International Investment Dispute Settlement Mechanism of the Belt and Road Initiative For investors, the construction of a diversified investment dispute settlement mechanism can create the possibility for them to choose an optimal way in a variety of investment dispute settlement mechanisms in combination with the actual situation of the case, so as to resolve investment disputes peacefully, fairly and efficiently. For China, under the background of the "Belt and Road", insisting on promoting the development of a diversified investment dispute settlement mechanism can further protect national interests while escorting domestic investors. (I) advances ICSID reform In July 2019, China submitted to the UNCITRAL Working Group III the "China Proposal Document on the Reform of the Investor-State Dispute Settlement Mechanism", stating China's position. China believes: "Although the ISDS mechanism has problems such as lack of error correction mechanism, lack of stability and predictability, the investor-state investment dispute settlement mechanism is still an important solution to related problems, and it should be actively improved through reforms to enhance the parties' confidence in the mechanism." [28] In the absence of the establishment of a dedicated "Belt and Road" investment dispute settlement body, the gradual reform of ICSID will help to resolve investment disputes in China in the context of the "Belt and Road" strategy and lay the foundation for the establishment of a dedicated dispute settlement body in the future. 1. Establishment of an arbitration appellate body Beginning in the 1950 s, ISDS arbitration results gradually favored foreign investors. The State is obliged to balance the interests of foreign investors and the State, and excessive protection of investors is contrary to the principle of fairness [29]. The public law nature of investment disputes distinguishes them from commercial arbitration, so the characteristics of "final arbitration" cannot be adapted to investment arbitration. Commercial arbitration meets the requirements of both parties to arbitration for efficiency and protection of trade secrets, but in investment disputes between investors and countries, the interests of investors and the interests of the host country need to be protected equally, and even for the sake of protecting human health and the world environment, the public interest should be protected. Based on this, the establishment of the ICSID Appellate Body is conducive to balancing the interests of the parties. The idea of establishing an arbitration appellate body was proposed by the ICSID secretariat as early as 2004. UNCITRAL Working Group III proposed a variety of proposals for the operation of the Appellate Body, including the scope of review of appeals, the circumstances in which appeals may be made, the effectiveness of appeals, and the time frame [30]. The model of WTO Appellate Body can be used for reference when designing ICSID Appellate Body. For example, the Appellate Body consists of three or seven persons and separates the first-instance arbitrators from the Appellate Body staff. There is a strict time limit of 12 months from the filing of an appeal to the decision. The scope of the appellate review also does not have to re-examine the whole case, only "errors of law" and obvious errors of fact. At the same time, the role of the ICSID secretariat is an important part of ensuring consistency in ICSID dispute settlement procedures and outcomes [31]. Increased transparency of ICSID As discussed above, the high privacy of international investment arbitration can lead to a reduction in the consistency and predictability of arbitration, and therefore, since the revision of the ICSID Arbitration Rules in 2006, it has been proposed.
2023-05-23
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
