"Construction enterprises" in the field of construction engineering administrative punishment risk (III)-safety production

In order to regulate the behavior of various subjects in the field of construction engineering in Shandong Province, the Department of Housing and Urban-Rural Development of Shandong Province issued the ''Administrative Penalty Discretion Bench'' of the Department of Housing and Urban-Rural Development of Shandong Province., Within the scope of the types and ranges of administrative penalties stipulated by laws and regulations, depending on the severity of the violations and the impact of the consequences, reasonably divide different levels of illegal situations, determine specific administrative penalty standards. The first two articles mainly describe the risks of administrative penalties that may be involved in the construction qualification, subcontracting, construction standards, etc. that "construction enterprises" pay attention to in the production and operation activities in the field of construction engineering: 1. construction enterprises do not take measures to eliminate the hidden dangers of construction safety accidents 2. the construction unit has not established a safety production management organization, equipped with full-time safety production management personnel, or has no full-time safety production management personnel on-site supervision during the construction of partial projects. The main person in charge, project leader, full-time safety production management personnel, operation personnel or special operation personnel of the 3. construction unit shall engage in relevant work without safety education and training or unqualified assessment. 4. The construction unit fails to set up obvious safety warning signs at the dangerous parts of the construction site, or fails to set up fire-fighting passages, fire-fighting water sources, fire-fighting facilities and fire-fighting equipment at the construction site in accordance with relevant national regulations. 5. The construction unit fails to provide safety protection equipment and safety protection clothing to the operators. 6. The construction unit shall use the technology, equipment and materials that endanger the construction safety that are eliminated or prohibited by the state. 7. the construction unit did not make a detailed description of the technical requirements for safe construction before construction. 8. the construction unit fails to take corresponding safety construction measures at the construction site according to different construction stages and changes in the surrounding environment, seasons and climate, or fails to implement closed enclosure at the construction site of the construction project in the urban area 9. The temporary buildings erected by the construction unit at the construction site do not meet the requirements for safe use 10. The construction unit fails to take special protective measures for adjacent buildings, structures and underground pipelines that may be damaged due to the construction of the construction project. Eleven, the construction unit safety protection equipment, mechanical equipment, construction machines and accessories before entering the construction site without inspection or inspection unqualified that put into use Twelve, the construction unit in the construction organization design did not prepare safety technical measures, construction site temporary electricity plan or special construction plan Thirteen, the construction unit to obtain the qualification certificate, reduce the safety production conditions Fourteen, the construction unit to obtain the safety production license to reduce the safety production conditions Fifteen, construction enterprises did not set up safety production management institutions in accordance with the provisions; Not in accordance with the provisions of full-time safety production management personnel; More dangerous parts of the project construction did not arrange full-time safety production management personnel on-site supervision; "safety management personnel" did not obtain the safety production assessment certificate and other illegal acts 16. Decoration and decoration enterprises violate the relevant national safety production regulations and safety production technical regulations, fail to take necessary safety protection and fire protection measures in accordance with the regulations, use open flame operations and carry out welding operations without authorization, or fail to take measures to eliminate the hidden dangers of construction safety accidents.

2023-02-24

Civil and Commercial Perspective... Can children claim maintenance during marriage?

2023-02-22

Viewpoint | Analysis of the prerequisites for the continued implementation of liability insurance liability

Basic case In 2021, the insured (application executor) company a enforced a case due to a private loan dispute with the executed person Guo mou. during the execution process, the outsider Cao mou claimed ownership of the property and garage located in a residential area of wenshang county under the name of the executed person Guo mou and filed an objection to the execution, resulting in the suspension of the execution of the case. on June 2, 2021, the insured (application executor) company a applied to the court for continued execution, and purchase continuing liability insurance from the insurance company. In the case of Cao's objection to the execution of the application, the court made a civil judgment on September 10, 2021, and the house involved in the case was not allowed to be executed. The intermediate court made a final judgment to reject the appeal and uphold the original judgment. On September 2, 2021, the court made an enforcement ruling that the ownership of the property in question under Guo's name belonged to the buyer, Fan. The ownership of the property involved is irreversible. Cao sued the court and requested the insurance company and the executor to compensate for his losses. Court decision results Defendant A Company shall compensate Cao for the loss of XX yuan within 10 days after the judgment comes into effect. The defendant's insurance company shall be liable to Cao for the debts determined in the first item of this judgment, within the scope of XX yuan for the part that cannot be performed in the legal enforcement of the property of defendant a company. Referee Points 1. In this case, Cao raised an objection to the execution of the property involved. During the trial of the outsider's execution of the objection, after Company A insured with a qualified insurance company, the insurance company issued a policy guarantee to the court, and the court continued to execute the property involved in the case in accordance with the law, and the property involved in the case has now been executed. According to the final judgment of the outsider's execution of the objection, Company A applied to continue to execute the house mistake involved in the case. Company A requested the court to continue to execute the mistake and caused losses to Cao, and should be liable for compensation for Cao's losses. 2. Judging from the guarantee letter of the continued execution of the liability insurance policy issued by the insurance company and the compensation conditions specified in the policy, the insurance company shall judge the economic compensation liability of the insured in the people's court for the loss of the continued execution error in accordance with the law. If the insured fails to make compensation, the insurance company shall be liable for compensation within the compensation limit according to the agreement of the insurance contract. Legal basis The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation of Several Issues in the Implementation Procedure Article 16 During the trial of a lawsuit against an outsider's objection to execution, the people's court shall not punish the subject matter of execution. Where the executor of the application requests the people's court to continue the execution and provide a corresponding guarantee, the people's court may grant permission. If an outsider requests the lifting of the seizure, seizure or freezing, or if there is an error in the application for execution, causing losses to the other party, compensation shall be made. Lawyer's opinion The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Extended reading Litigation property preservation liability insurance means that the applicant signs an insurance product contract with the insurance company (insurer), and the insurance company uses the insurance product as collateral to guarantee the property preservation behavior of the litigant (insured). When the insured applies for error and should bear the economic compensation liability according to law, the insurer shall be responsible for compensation or advance payment according to the agreed compensation limit, Then realize the purpose of litigation preservation guarantee. Continued enforcement liability insurance is an insurance that specifically provides service protection for the executor in an enforcement case to continue to enforce the liability. The applicant for enforcement shall provide a policy guarantee issued by an insurance company approved by the court, and after examination by the court, the outsider shall continue to dispose of the property without suspending the execution procedure at the same time as the execution objection or the execution objection, so as to ensure that the legitimate rights and interests of the parties are fulfilled in a timely manner. The insurance is a new type of insurance, which was first born in Beijing Haidian Court on May 24, 2019. This is Beijing's first and the first insurance industry to prevent delays in the implementation of judicial liability insurance products. Litigation property preservation liability insurance and continued execution liability insurance are both an insurance contract signed between the policyholder and the insurance company, and then the two sides establish an insurance contract relationship. They are insurance companies to the court to provide policies or letters of guarantee as proof of security, from the form of the policy guarantee, with some of the characteristics of the guarantee guarantee, but in essence is not a guarantee guarantee relationship. First, the insurer does not appear as a guarantor, and the nature of the insurance policy guarantee payment expenses belongs to insurance claims; second, the insurance contract of this kind of insurance generally has a large number of exemption clauses, which conflict with the promise of unconditional liability in the insurance policy guarantee and do not meet the basic requirements of guarantee guarantee; third, if the insurance policy guarantee is regarded as the guarantee provided by the insurance company, however, if the guarantee does not comply with the current law, because according to the law, the provision of the guarantee requires the authorization or resolution of the shareholders' meeting or the board of directors, but in reality, there are no relevant documents authorized or resolved by the shareholders' meeting or the board of directors in the relevant cases. The insurance liability of litigation property preservation liability insurance is that during the insurance period, if the respondent suffers losses due to the wrong application of the insured's litigation property preservation, the compensation liability borne by the insured according to the judgment of the court shall satisfy at the same time: 1. The property preservation respondent has indeed suffered losses; 2. There is a causal relationship between the loss of the property preservation respondent and the error of the insured's litigation preservation application; 3. The loss of the property preservation respondent was confirmed by the court judgment in force to confirm the specific amount of the loss. In this case, the insurer is responsible for compensation in accordance with the insurance contract. The insurance liability for the continued execution of liability insurance is that during the insurance period, due to the insured's error in requesting the people's court to continue the execution, causing losses to the person subject to execution, interested parties or outsiders, the people's court shall be in accordance with the People's Republic of China laws (excluding Hong Kong, Macao and Taiwan Regional laws, the same below) determine that the insured shall bear the economic compensation liability, and the insurer shall be responsible for compensation in accordance with the insurance contract. Continued enforcement of liability insurance In the policy guarantee submitted to the court, it is further clarified that the insurance liability is that during the enforcement process, the objector files an objection to the enforcement of the subject matter, resulting in the suspension of the enforcement. The insured applies to the people's court for continued enforcement and requests The people's court continues to execute the subject matter. If there is an error in the insured's request to the people's court to continue execution, causing losses to the objector, if the people's court decides in accordance with the law that the insured shall bear the economic compensation liability and the insured fails to pay compensation, the insurer shall be responsible for compensation in accordance with the insurance contract. Litigation property preservation liability insurance liability is based on the principle of attribution of fault liability of the insured, that is, the insurer's liability needs to have at the same time the subjective fault of the insured, the illegality of the insured's behavior, the existence of the fact of damage, the insured's illegal behavior and the damage consequences of the causal relationship between the four constituent elements. In practice, the case of the court after searching shows that the compensation for the liability of property preservation in litigation is based on the causal relationship between the insured's preservation behavior and the loss and the subjective intention or gross negligence of the insured to the property preservation as the elements and premise of the insurer's liability for damages. In the course of litigation, the parties submit an application for property preservation in accordance with the provisions of the Civil procedure Law, which is a manifestation of exercising their litigation rights granted by the law. It is not appropriate to simply judge whether the application is wrong on the basis of the final trial result of the case. The key is to see whether the insured has fulfilled the reasonable duty of care and whether the litigation request filed by the insured is legal and reasonable. The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Because the continued implementation of liability insurance is a new type of liability insurance, the time is short, the judicial jurisprudence is also very few, therefore, the liability insurance liability preconditions should be based on the principle of fault liability attribution, there is a lot of controversy, to be further discussed with the increase in the number of cases.</中华人民共和国民事诉讼法>

2023-02-21

Point of view... A brief analysis of the practical treatment of social security claims when bankrupt enterprises do not open social security accounts for employees.

Foreword Social insurance is at the core of the social security system, and the state also gives employers the legal obligation to pay social insurance for their employees in the form of legislation. In the case of enterprise bankruptcy, the enterprise will usually default on social insurance due to the pre-debt crisis, which leads to the inability to pay social insurance for employees in time, and usually the social security institutions will also protect the rights and interests of employees in the form of social security claims. However, some bankrupt enterprises have not opened social security accounts for their employees since the date of production and operation, and social security institutions are unable to declare claims because they have not opened accounts, and there is no express provision on how to deal with social security claims. The purpose of this paper is to analyze the practical treatment of social security claims when bankrupt enterprises do not open social security accounts for employees. 1. what is social security claims The expression of social security claims does not appear directly in the Enterprise Bankruptcy Law and the judicial interpretation of the Bankruptcy Law, but in the second paragraph of Article 113 of the Enterprise Bankruptcy Law, the expression "social insurance expenses owed by the bankrupt in addition to the provisions of the preceding paragraph" appears, which is the provision of social security claims. Social security claims are formed in social insurance costs, but social security claims and social insurance costs cannot be completely equated. According to Article 113 of the Enterprise Bankruptcy Law, social security claims are closely related to employee claims. Therefore, the scope of social security claims can be determined by employee claims. The calculation formula of social security claims can be expressed as follows: social security claims = social insurance fees payable by the unit (excluding the unit's withholding of the individual's contributions)-the social insurance fees paid by the unit shall be included in the basic old-age insurance and basic medical insurance fees of the employee's personal account. Thus, the social security claim can be understood as the social insurance fee paid by the unit into the co-ordination account. The significance of 2. enterprises to pay social insurance. The first paragraph of Article 58 of the "Social Insurance Law" stipulates that the employer shall apply to the social insurance agency for social insurance registration for its employees within 30 days from the date of employment. If the social insurance registration is not completed, the social insurance agency shall approve the social insurance premiums that it should pay. Article 72 of the "Labor Contract Law" stipulates that the social insurance fund shall determine the source of funds according to the type of insurance, and gradually implement social pooling. Employers and workers must participate in social insurance and pay social insurance premiums in accordance with the law. It can be seen that the employer's payment of social insurance for employees in accordance with the law is a legal obligation of the employer, which is mandatory. This obligation is not exempted for any reason, and it is not changed according to the wishes of the parties. The promise made by the employee to the employer not to pay social insurance is also invalid due to violation of mandatory legal provisions. Taking basic old-age insurance as an example, the first paragraph of Article 10 of the Social Insurance Law stipulates that employees shall participate in basic old-age insurance, and employers and employees shall jointly pay basic old-age insurance premiums. The first paragraph of Article 11 of the "Social Insurance Law" stipulates that the basic pension insurance shall be combined with social pooling and individual accounts. The first paragraph of Article 12 of the "Social Insurance Law" stipulates that the employer shall pay the basic pension insurance premiums in proportion to the total wages of its employees as prescribed by the state, and record them in the basic pension insurance pooling fund. The second paragraph stipulates that employees shall pay basic old-age insurance premiums in proportion to their wages as prescribed by the State, which shall be credited to their personal accounts. The social insurance fee paid by the employer has a double significance. On the one hand, part of the social insurance fees paid by employers are transferred to the individual accounts of employees, which is "private"; on the other hand, part of the social insurance fees paid by employers are transferred to the overall planning account, which is uniformly allocated and managed within a certain range. to achieve regional adjustment, protect social and public interests, with "mutual aid". It can be seen that social insurance has the function of social security. Employers pay social insurance, which is not only a way to realize the social security needs of employees, but also a way for the state to protect the basic human rights of all people through social risk sharing. The payment of social insurance by enterprises has dual significance. It has both corporate responsibilities and social responsibilities. It is conducive to resolving the contradiction between the rich and the poor in society, ensuring the basic living standards of the people, truly realizing people-oriented, and building a harmonious socialist society. The practical analysis of social security claims when the 3. bankruptcy enterprise does not open a social security account for its employees. The Enterprise Bankruptcy Law stipulates that employers should pay social insurance for their employees, which is a mandatory obligation. In a bankrupt enterprise, when the bankrupt enterprise fails to open a social security account for its employees during the normal production and operation period, it has violated the law. When the enterprise goes bankrupt, the bankrupt enterprise should pay the social security for the employees and safeguard the legitimate rights and interests of the employees. However, in practice, the bankrupt enterprise has been in a state of insolvency, has obviously lack of solvency, the lack of funds available to the enterprise, especially in the face of many creditors, how the enterprise fair settlement of claims, to protect the legitimate rights and interests of each creditor has become a top priority. However, social security claims are only one of the many types of claims, and there is no uniform standard for the payment of social security claims in practice. Below, I will comb the face of bankrupt enterprises did not open social security accounts for employees, the administrator (or liquidation group) of the practical path choice. Path 1: When a bankrupt enterprise does not open a social security account for its employees, it cannot pay social insurance for its employees. Case 1: Due to the bankruptcy of the enterprise did not open a social security account for employees, do not support the payment of social security. In Huang Wuchun and Yingshan County Zhongneng Real Estate Co., Ltd., the civil judgment of the second instance of the dispute over the confirmation of employees' bankruptcy claims ((2020) Sichuan 13 Minzong No. 2139, Nanchong Intermediate People's Court of Sichuan Province) stated: ...... Zhongneng Company has not opened a medical insurance account in the medical insurance department and is now unable to repay the employees' medical insurance expenses to the medical insurance institution...... Case 2: Due to the bankruptcy of the enterprise did not open a social security account for employees, do not support the payment of social security for employees, but support compensation for losses. In the civil judgment of first instance on the dispute over the confirmation of bankruptcy claims of employees of Yang Ping and Mianyang Antelai Chemical Co., Ltd. ((2018) Sichuan 0792 Minchu No. 1971, Sichuan Mianyang High-tech Industrial Development Zone People's Court), it is stated:... The defendant Antelai Company failed to handle the social basic pension insurance premiums for the plaintiff from January 2013 to September 2014, which is illegal and should be paid according to law. However, after writing to the relevant social security department, the court learned that because the defendant did not open a social security account for the employees, and it has been many years since then, the social security department has been unable to complete the social insurance procedures for the plaintiff. Accordingly, in accordance with Article 118 of the General Principles of the People's Republic of China Civil Law, "Civil subjects shall enjoy claims in accordance with the law. Creditor's right is the right of the obligee to request a specific obligor to act or not to do a certain act due to contract, tort, unjust enrichment and other provisions of the law, and Article 1 of the (III) on the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of labor dispute cases, if a dispute arises over a claim for compensation from the employer, the people's court shall accept it." The plaintiff Yang Ping asked the defendant Antelai Company to give corresponding compensation, the court to support..... Case 3: Although the bankrupt enterprise has not opened a social security account for its employees, it confirms the basic old-age insurance and basic medical insurance that should be transferred to the employee's personal account. In Zheng Qishu and Kaili Economic Development Zone Baoheng Real Estate Development Co., Ltd. employee bankruptcy creditor's rights confirmation dispute first instance civil judgment ((2019) Qian 26 Minchu No. 122, Guizhou Qiandongnan Miao and Dong Autonomous Prefecture Intermediate People's Court) stated:... On whether Baoheng Housing Development Company should deposit endowment insurance and medical insurance for Zheng Qishu. The Social Insurance Law stipulates that employees shall participate in social insurance, and employers and employees shall jointly pay basic old-age insurance premiums and basic medical insurance premiums in accordance with state regulations. Therefore, Baoheng Housing Development Company for the company's employees Zheng Qishu to pay basic old-age insurance premiums, basic medical insurance premiums is its legal obligation. Because Baoheng Housing Development Company did not go to the social insurance department to open a personal insurance account for Zheng Qishu and pay insurance premiums, Zheng Qishu requested to confirm that Baoheng Housing Development Company enjoys the basic pension insurance premiums and basic medical insurance premiums that should be transferred to the personal account, Should be supported...... Case 4: The bankrupt enterprise has not opened a social security account for its employees and cannot confirm the basic old-age insurance and basic medical insurance that should be transferred to the employee's personal account. The civil judgment of the second instance of the dispute over the confirmation of bankruptcy claims between Gao Ruifeng and Weihai Chengxin Medical Science and Technology Development Company ((2014) Weimin San Zhong Zi No. 160, Weihai Intermediate People's Court of Shandong Province) states: ...... On the personal issue of whether the basic old-age insurance and basic medical insurance expenses that should be transferred to the employee's personal account should be paid to the appellant Gao Ruifeng, Article 48, paragraph 2 of the Bankruptcy Law stipulates, the wages and medical, disability subsidies, and pension expenses owed by the debtor to the employees, and the basic pension insurance and basic medical insurance expenses that should be included in the employee's personal account, shall be listed and publicized by the administrator after investigation. This article determines that the basic old-age and basic medical insurance expenses owed by the bankrupt enterprise that should be transferred to the employee's personal account shall be the employee's claim, but the amount shall be transferred to the employee's personal account and not directly paid to the employee himself. Therefore, the appellant Gao Ruifeng's request to pay the money directly to his personal lack of legal basis, the original trial on this basis to reject his claim is not improper, should be maintained in accordance with the law. What the author needs to explain is that the above path 1 occurred before, and each place issued a one-time pension insurance premium policy (taking Shandong Province as an example, on December 31, 2019, Shandong Provincial Department of Human Resources and Social Security, The Shandong Provincial Department of Finance jointly issued the "Notice on Improving the Basic Pension Insurance Payment Policy for Employees" (Luren Social Regulation [2019] No. 13), stipulating that bankrupt enterprises owe pension insurance premiums, it shall be paid off in accordance with the provisions in the income from the realization of the assets of the bankrupt enterprise. If there are still arrears after the assets are realized and paid off, for the part of the arrears that cannot be paid off, after the employee's personal payment and the enterprise's payment should be transferred to the employee's personal account (including interest), the bankrupt enterprise liquidation team can hold the court's bankruptcy ruling, The enterprise's assets and liabilities statement and other materials, apply to the social insurance agency in the insured place to write off the basic pension insurance premiums in arrears...) When the bankrupt enterprise has not opened a social insurance account for employees, A one-time payment of basic old-age insurance can be made. Path 2: When a bankrupt enterprise does not open a social security account for its employees, it can pay back pension insurance for their employees, but cannot pay back medical insurance. 1. Since the implementation of the "Notice on Improving the Basic Pension Insurance Payment Policy for Employees" (Luren She Gui [2019] No. 13), when a bankrupt enterprise has not opened a social security account for its employees, it can make a one-time payment of pension insurance. The basic approach is: If the basic pension insurance is paid as an employee of the unit, the unit generally submits a written application and provides proof materials that can prove the labor relationship between the employee and the unit, such as labor contracts, employee rosters, wage payment vouchers, etc., employee identification documents, etc. Among them, if the one-time payment exceeds three years, legal documents issued by the people's court, the audit department, the administrative department implementing labor supervision or the labor and personnel dispute arbitration committee shall be provided. According to this provision, when the bankrupt enterprise does not open a social security account for its employees, it can pay back the old-age insurance. 2. At present, there is no relevant policy to support bankrupt enterprises to pay back medical insurance for employees when they have not opened medical insurance accounts for employees. After the author consulted a number of medical insurance institutions, medical insurance institutions feedback in the bankrupt enterprises did not open medical insurance accounts for employees, can not pay medical insurance for employees. Concluding remarks It is the legal obligation of the employer to pay social insurance for its employees in accordance with the law, and it shall not be exempted because the employer is in any situation. Under the current one-time supplementary pension insurance system, employers should open social security accounts for employees in a timely manner, pay social insurance, protect the legitimate rights and interests of employees in a timely manner, and avoid the problem of later payment of arrears and late fees.

2023-02-21

Viewpoint | Choice of SOE Procurement

Procurement is an important link in the business activities of state-owned enterprises, and it is also a key link in risk-prone. The special status and role of state-owned enterprises in China's national economy make them have the characteristics of commercial and public welfare at the same time, and the procurement of state-owned enterprises also has the dual attributes of enterprise procurement and public procurement. Fairness and efficiency are important aspects that should be considered in the procurement of state-owned enterprises. The second paragraph of Article 18 of the interim measures for the Administration of State-owned Capital and Finance of Enterprises (Caiqi [2001] No. 325) stipulates: "the procurement of bulk raw and auxiliary materials or commodity materials, the purchase and construction of fixed assets, and the construction of projects shall generally be carried out in accordance with the principles of openness, fairness and fairness, and shall be carried out by way of bidding," which points out the basic principles that should be followed in the procurement of state-owned enterprises. With the development of the times and the increasing internal demand of enterprises to improve quality and efficiency, the procurement of state-owned enterprises should not only ensure fairness and justice, effectively prevent risks, but also reduce procurement costs and improve procurement efficiency. Among them, according to the specific situation of procurement and the characteristics of different procurement methods, flexible selection of appropriate procurement methods is one of the procurement strategies, but also in the procurement of state-owned enterprises to achieve fairness and efficiency in the coordination of an important way. Relevant documents 1. the procurement of state-owned enterprises A prominent problem in the field of state-owned enterprise procurement is the lack of applicable laws and regulations. The "Tendering and Bidding Law" and the "Government Procurement Law" do not fully cover the procurement activities of state-owned enterprises. The administrative regulations of the department on the procurement of state-owned enterprises are relatively general and the operability is not strong. In this case, the China Federation of Logistics and Purchasing, together with several research institutions and state-owned enterprises, has successively formulated the "State-owned Enterprise Procurement Operation Specification" (T/CFLP 0016-2019) and the "State-owned Enterprise Procurement Management Specification" (T/CFLP 0027-2020). The former stipulates the procurement process and general requirements of state-owned enterprises, as well as the general conditions and procedural rules of various procurement methods, the latter stipulates the management structure, procurement implementation, performance evaluation, supervision and management of state-owned enterprises. The two complement each other and are used together to form the system guidelines for the procurement management and operation of state-owned enterprises, and fill the state-owned enterprise procurement regulations. Blank. Contents and Methods of Procurement of State-owned Enterprises in 2. According to the Code of Practice for Procurement of State-owned Enterprises (T/CFLP 0016-2019) and the Code of Management for Procurement of State-owned Enterprises (T/CFLP 0027-2020), the procurement of state-owned enterprises includes project procurement and operational procurement. Project procurement refers to the procurement activities implemented to achieve the established objectives of enterprise project management, which is an important part of project management, such as engineering projects, technical transformation projects, equipment and facilities projects, one-time operation and maintenance projects of enterprises and other procurement activities. Its characteristics are one-time and systematic. Operational procurement refers to the repetitive procurement activities implemented to meet the objectives of enterprise operation and management and maintain daily business activities, which is an important part of enterprise operation and management. Operational procurement can be further divided into operational procurement directly related to production and operational procurement indirectly related to production. The former such as enterprise raw materials, accessories procurement, parts, components, assembly procurement, daily production maintenance and other procurement activities. The latter such as consulting services, labor services, information services, warehousing services and other procurement activities. The procurement methods of state-owned enterprises mainly include bidding procurement, bidding procurement, consulting procurement, cooperation negotiation, competition negotiation, competition negotiation, single-source direct procurement and multi-source direct procurement. For different procurement content, the applicable procurement methods are also different. Article 7.3.1 of the "State-owned Enterprise Procurement Management Code" stipulates the principle of selecting procurement methods, that is, enterprises should choose the corresponding procurement methods according to the characteristics of the project. The Choice of Purchasing Methods of 3. State-owned Enterprises (I) bidding procurement 1. Compulsory bidding system Since bidding procurement can enable many bidders to participate in fair competition, encourage tenderers to obtain the best goods, projects or services at the lowest or lower price, ensure the reasonable and effective use of state-owned funds and other public funds, and improve economic and social benefits, certain types of procurement projects within the scope of the law, or procurement projects that reach a certain scale, must be purchased through bidding. The relevant legal provisions of the compulsory bidding system mainly include the "Tendering and Bidding Law", "Regulations on the Implementation of the Tendering and Bidding Law", "Provisions on Projects that Must Be Tested", "Provisions on the Scope of Infrastructure and Public Utilities Projects That Must Be Tested", etc. The above provisions delineate the scope of application of compulsory bidding procurement from the dimensions of procurement object, project type, source of funds, procurement scale, etc. (1) Purchase object dimension The procurement object of compulsory bidding is the construction project. According to Article 2 of the Regulations on the Implementation of the Bidding and Bidding Law, construction projects refer to projects and goods and services related to project construction. The project refers to the construction project, including the new construction, reconstruction, expansion of buildings and structures and related decoration, demolition, repair, etc.; the goods related to the construction of the project refer to the equipment and materials that constitute an integral part of the project and are necessary for the realization of the basic functions of the project; the services related to the construction of the project refer to the survey, design, supervision and other services required for the completion of the project. According to the second paragraph of Article 2 of the "Regulations on the Quality Management of Construction Projects", construction projects refer to civil engineering, construction projects, pipeline and equipment installation projects and decoration projects. (2) Item Type Dimension The provisions on the scope of compulsory bidding from the project type dimension are mainly reflected in the Provisions on the Scope of Infrastructure and Public Utilities Projects that must be tendered. According to the regulations, energy infrastructure projects, transportation infrastructure projects, communication infrastructure projects, water conservancy infrastructure projects, urban rail transit and other urban construction projects are related to social public interests and public safety, and must be tendered in accordance with the law. (3) Funding source dimension From the perspective of the source of funds, all or part of the use of state-owned funds investment or state financing projects and the use of international organizations or foreign government loans, aid funds projects must be tendered in accordance with the law. The provisions of Article 2 of the "Regulations on Engineering Projects that Must Invest in Bidding" are further refined. Projects that use state-owned funds or state financing in whole or in part refer to projects that use budget funds of more than 2 million yuan and the funds account for more than 10% of the investment. Projects in which state-owned enterprises and institutions have funds that hold a controlling or dominant position. Projects using loans and aid funds from international organizations or foreign governments refer to projects using loans and aid funds from international organizations such as the World Bank and the Asian Development Bank, as well as projects using loans and aid funds from foreign governments and their institutions. (4) Procurement scale dimension The provisions on the scope of compulsory bidding from the dimension of procurement scale are mainly reflected in the Provisions on Projects that Must Be Tested. The estimated price of construction single contract is above 4 million yuan, the estimated price of procurement single contract for important equipment, materials and other goods is above 2 million yuan, the estimated price of procurement single contract for survey, design, supervision and other services is above 1 million yuan, and the procurement of survey, design, construction, supervision and important equipment and materials related to engineering construction can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be conducted. 2, may not bid the statutory circumstances In the presence of statutory circumstances, even if the project falls within the scope of the compulsory bidding system, it may not be tendered in accordance with the law. According to the Law on Tendering and Bidding, the Regulations on the Implementation of the Law on Tendering and Bidding, and the Measures for Tendering and Bidding for Construction Projects, it mainly includes the following situations: (1) Special projects involving national security, state secrets, emergency rescue and disaster relief; (2) It belongs to special circumstances such as the use of poverty alleviation funds to implement work-for-work relief and the need to use famous agricultural workers; (3) The need to adopt irreplaceable patents or know-how; (4) The purchaser can construct, produce or provide on its own according to law; (5) The franchise project investors who have been selected through bidding can build, produce or provide on their own in accordance with the law; (6) It is necessary to purchase works, goods or services from the original winning bidder, otherwise it will affect the construction or functional supporting requirements; 3. Special provisions for invitation to tender Where there are statutory circumstances, projects that should be subject to public bidding in accordance with the law may be invited to tender. According to the "Regulations on the Implementation of the Bidding Law" and the "Measures for Bidding and Bidding for Construction Projects", the following situations are mainly included: (1) Technical complexity, special requirements or limited by the natural environment, only a small number of potential bidders to choose from; (2) The cost of using the open tender method accounts for an excessive proportion of the project contract amount; (3) Construction projects involving national security, state secrets or emergency rescue and disaster relief are suitable for bidding but not for public bidding. 4. Voluntary bidding Due to the positive role of bidding in promoting fair competition, regulating transaction behavior, and enhancing economic benefits, the purchaser can voluntarily choose bidding as a procurement method for projects that are not required by law. It is applicable to procurement projects with clear procurement requirements, competitive conditions for the subject matter of the procurement, permitted procurement time, open procurement costs, and reasonable bidding transaction costs. (II) bidding inquiry ratio procurement 1. Bidding procurement Competitive procurement refers to the procurement needs are clear, the purchaser in accordance with the established rules and methods of one or more price comparisons to finalize the procurement of the contract counterpart. Competitive procurement is applicable to procurement with clear procurement needs, uniform specifications and models, sufficient supply, stable price or clear price formation mechanism. Among them, the procurement that allows one quotation shall be the procurement of goods that are not individually customized or provided to the purchaser, and the value of the existing fixed market is not high and the frequency is not high; the procurement that allows multiple quotations also includes the procurement of goods or services with competitive conditions customized for the enterprise. The purchaser shall, to the extent feasible, purchase relatively low-value procurement items from as many suppliers as possible through competitive bidding. State-owned enterprises need to pay attention to the differences between the bidding (inquiry) procedures stipulated in the Government Procurement Law: First, the purchaser can form a review team according to the complexity and technical requirements of the project, and whether it is necessary to hire experts from the enterprise advisory expert committee to participate in the review team is decided by the purchaser; Second, state-owned enterprises can require suppliers to quote once and cannot change the quotation, or can allow multiple quotations according to regulations; third, the receipt of only one or two quotations without exceeding the procurement budget cannot be considered invalid. 2. Inquiry and procurement Inquiry procurement refers to a procurement method in which the procurement requirements are clear and the purchaser allows the bidder to quote multiple times in accordance with the established procedures and finally determine the contract counterpart after evaluation. If one of the following conditions is met, the inquiry-based procurement method can be adopted:(1) projects, goods and services that have clear procurement requirements but do not meet the bidding conditions, including small and medium-sized projects that are not subject to bidding within the enterprise, a few projects with strong confidentiality that are not suitable for public bidding or invitation to bid, and projects that are located in remote areas and few construction units come to bid. (2) small and medium-sized simple projects after the failure of the tender. The characteristics of inquiry ratio procurement are that it has certain flexibility on the basis of maintaining competitiveness, and the procedures are simpler and more efficient. In the process of inquiry ratio procurement, the purchaser inquires, compares, communicates and negotiates with suppliers on various procurement factors and content details, and can also modify non-substantive terms and require suppliers to re-quote to maximize their own interests. 3 The difference between the two For example, both methods require clear procurement requirements and apply to standardized, simple and low-value procurement projects. The difference is that competitive procurement is more suitable for low-value goods with a higher degree of standardization and less frequent procurement, and that the requirements for standardization of the subject matter are lower than those for competitive procurement, and are generally applicable to works, goods and services. In addition, the focus of competitive procurement is on "price", that is, price competition on the premise of meeting demand; the focus of inquiry procurement is to select the best solution through dialogue and comparison, and to compete on this basis. Negotiate procurement (III) consultation 1. Negotiations on cooperation Cooperative negotiation refers to the procurement method in which the procurement needs are clear but the bidding conditions are not available, and the contract for goods or services can only be signed with the supplier through negotiation and the strategic partnership can be established. The cooperative negotiation procurement method can be adopted if one of the following conditions is met:(1) Procurement that requires long-term stable supply and cannot be met by bidding or other procurement methods. (2) Need to communicate face-to-face with specific suppliers to negotiate long-term cooperation in procurement. Cooperative negotiation is the main way of enterprise strategy negotiation. Generally applicable to the procurement of strategic materials, bottleneck materials or supply chain needs. Especially when it comes to strategic materials, bottleneck materials or negotiations with the only supplier, the purchaser's position is at a disadvantage, at this time should pay attention to prevent procurement risks, such as limiting the contract share of the largest supplier, establishing a long-term mechanism for material reserves, and actively formulating emergency plans to find alternative partners. Especially for state-owned enterprises, there are many external unstable and uncertain factors such as global epidemics, economic and trade policy adjustments in major countries, and even political conflicts in some countries, which have a great impact on the import customs clearance and logistics of key raw materials and important parts of enterprises. Under the background of the era, supply chain thinking should be used to strengthen procurement management and improve work, prevent procurement risks, and ensure the safety and stability of the supply chain. 2. Competition negotiations Competitive negotiation means that the purchaser negotiates with qualified suppliers on the procurement of projects, goods or services with clear procurement functional requirements and certain competitive conditions, the suppliers submit response documents and final quotations in accordance with the requirements of the negotiation documents, and the purchaser determines the procurement method of the transaction person from the candidates proposed by the negotiation team. Competition negotiation can be adopted if one of the following conditions is met:(1) there is an urgent need for the subject matter of procurement, and it is difficult to meet the production and operation needs of the enterprise by bidding or other procurement procedures, and the urgent need is not caused by the delay or predictability of the purchaser;(2) it is difficult to meet the needs of the purchaser by bidding or other procurement procedures for catastrophic events or favorable business opportunities;(3) the purchaser determines, other procurement methods are not suitable for protecting the basic national security or the core interests of the enterprise. Competition negotiation, a procurement method, is mainly used to solve problems such as time-critical and urgent needs. Unlike cooperative negotiations, competitive negotiations require certain competitive conditions and strict procedures. 3. Competition consultation Competitive negotiation refers to the complex projects with vague procurement requirements or requiring suppliers' opinions and certain competitive conditions. The purchaser and qualified suppliers discuss and negotiate on the procurement of projects, goods and services, and finally improve and determine the procurement documents and contract terms. The purchaser conducts financial negotiations with suppliers in turn according to the negotiation report and negotiation order submitted by the consultation group after evaluation, the first supplier to reach an agreement is the supplier's procurement method. Meet one of the following conditions

2023-02-20

Real Estate Perspective | How to understand the accompanying information requirements for the delivery of commercial housing?

The delivery of commercial housing has a very important legal significance in the contract of sale of commercial housing, and it is also one of the main obligations of real estate developers to fulfill the contract of sale of commercial housing. For the delivery requirements of commercial housing, many laws and regulations or local normative documents in China have corresponding provisions or guiding requirements. However, up to now, there are still many disputes about the delivery of commercial housing, which lead to endless disputes about the delivery of commercial housing. Among them, there are not only the reasons of substantive delivery conditions, such as unqualified quality of commercial housing, infrastructure not meeting the needs of basic living functions, but also the reasons of formal delivery conditions, such as the real estate developer did not make a written delivery notice, did not provide housing mapping reports and other delivery accompanying information. From the perspective of real estate developers, how to understand and meet the accompanying information requirements of commercial housing delivery, this paper will discuss and analyze related issues. Common types of accompanying materials According to the legal provisions of our country and the common agreements in commercial housing sales contracts, real estate developers usually need to show or provide the following accompanying materials when delivering houses: 1. Completion acceptance filing documents; 2. "Residential quality Guarantee" and "Residential use Manual" (commonly referred to as "two books");3. Housing surveying and mapping report; 4. Written delivery notice. The above-mentioned accompanying materials have certain independent value, which is not only based on legal provisions and contractual agreements, but also as important evidence for real estate developers to meet the substantive delivery conditions. Completion acceptance filing documents with data Article 61 of the "Construction Law" stipulates: "A construction project can only be delivered for use after it has been completed and accepted; if it has not been accepted or failed, it shall not be delivered for use." Article 16 of the Regulations on the Quality Management of Construction Projects stipulates: "Construction projects can only be delivered for use after they have been completed and accepted." Article 27 of the "Urban Real Estate Management Law" stipulates: "Real estate development projects can only be delivered for use after they have been completed and passed the acceptance." Article 17 of the regulations on the Management of Urban Real Estate Development and Operation stipulates: "after the completion of a real estate development project, it can be delivered for use only after it has passed the acceptance in accordance with the regulations on the quality Management of Construction projects." According to the above provisions, it can be seen that the completion acceptance is the basic delivery condition clearly stipulated by law. The quality of commercial housing and the construction of supporting facilities are related to the safety of people's lives and property and living and working in peace and contentment, so the government needs to manage them effectively. The completion acceptance filing document is the result of the construction administrative department's decision to approve the filing after reviewing the application materials and project status of real estate developers, which has high credibility, therefore, the filing documents for the completion and acceptance of commercial housing issued by it are an important basis for proving that the commercial housing has passed the acceptance. In judicial practice, many courts will obtain the completion acceptance filing documents as the legal minimum delivery conditions for the delivery of construction projects. Residential Quality Guarantee with Data and "residential use instructions" Article 30 of the "Regulations on the Management of Urban Real Estate Development and Operation": "Real estate development enterprises shall provide the purchaser with a residential quality guarantee and a residential instruction manual when the commercial housing is delivered for use." Article 3 of the provisions on the system of residential quality guarantee and residential use instructions for commercial residential buildings: "when real estate development enterprises deliver new commercial residential buildings for sale to users, they must provide residential quality guarantee and residential use instructions." Article 10 of the provisions on the implementation of the residential quality guarantee and residential instruction manual system for commercial housing: "the residential quality guarantee and the residential instruction manual shall be provided to the user at the same time when the residence is delivered to the user." "Shandong Province New Commercial Housing Sales Contract (presale) Model Text" Article 9 Commercial Housing Delivery Conditions: "If the commercial housing is residential, the seller must also provide the" Residential Use Manual "and" Residential Quality Guarantee ". Based on the above provisions, it can be seen that the "Residential Quality Assurance" and "Residential User Manual" provided by real estate developers are mandatory provisions of administrative regulations and rules, and there are usually similar clear agreements in commercial housing sales contracts, and real estate developers should strictly abide by them. In judicial practice, some local courts believe that if real estate developers cannot provide both the "Residential Quality Guarantee" and the "Residential User Manual" at the time of delivery, they should bear the responsibility for overdue delivery. For example, the "Anhui Higher People's Court" Article 1, paragraph 6 of the Guiding Opinions on the Application of Legal Issues in the Trial of Disputes over Housing Sales Contracts states: "The house purchase and sale contract stipulates that the seller must provide documents such as the" Residential Quality Guarantee "and" Residential Use Manual "when delivering the house. If the seller fails to provide the above documents when actually delivering the house, the buyer has the right to refuse to accept the house". Housing Surveying and Mapping Report with Data Article 34, paragraph 1, of the "Measures for the Administration of Commercial Housing Sales" stipulates: "Real estate development enterprises shall entrust units with real estate surveying and mapping qualifications to carry out surveying and mapping according to the project before the commercial housing is delivered for use. The surveying and mapping results are reported to the real estate administrative department for review and used for housing ownership registration." Article 9 of the Model Text of Sales Contract (presale) for Newly-built Commercial Housing in Shandong Province: "Conditions for the delivery of commercial housing: the commercial housing shall meet the following conditions when it is delivered:... 2. The commercial housing has obtained the housing surveying and mapping report". Based on the above provisions and agreements, it can be seen that there is no mandatory law to stipulate that the housing surveying and mapping report is one of the delivery conditions, but the provision of housing surveying and mapping report is usually one of the delivery conditions clearly agreed in the commercial housing sales contract. Based on the principle of agreement priority, if the real estate developer fails to provide the housing surveying and mapping report as agreed upon when the commercial housing is delivered, some local courts will tend to think that the agreed delivery conditions are not met, the buyer has the right to require the real estate developer to bear the liability for breach of contract on the grounds that it does not meet the delivery conditions stipulated in the contract. Notice of written delivery of accompanying information Article 8, paragraph 2, of the "Judicial Interpretation of Commercial Housing Sales Contracts" stipulates: "If the buyer receives the seller's written delivery notice and refuses to accept it without proper reasons, the risk of damage or loss of the house shall be determined from the written delivery notice. The buyer shall bear the date of use, unless otherwise provided by law or otherwise agreed by the parties." The (II) paragraph of Article 9 of the "Model Text of the Sales Contract (presale) for Newly Built Commercial Housing in Shandong Province": "After the commercial housing meets the delivery conditions agreed in Articles 9 and 10, the seller shall, before the expiration of the delivery date (not less than 10 days), deliver the notice of the time of inspection of the house, the time and place of handling the delivery formalities and the documents and materials that should be carried to the buyer (postal express, registered mail, SMS, e-mail, etc.)." In judicial practice, many local courts believe that the real estate developer, as the owner of the commercial housing, is the first responsible subject of whether the housing has been completed, whether the completion acceptance is qualified and the delivery conditions are met. The buyer can only confirm the specific handover time of the commercial housing after receiving the written notice from the real estate developer. Therefore, the "written delivery notice" is the obligation of the real estate developer, it will lead to the buyers not knowing the specific time of house collection and unable to collect the house in time. This inaction damages the interests of the buyers and should bear the corresponding liability for breach of contract according to law. The author thinks that the above point of view is questionable, commercial housing sales contract usually has a clear agreement on the delivery time of the house, and the delivery location, based on the characteristics of real estate can be judged to be the location of the commercial housing, so whether the buyer receives a written notice of delivery will not substantially damage the rights and interests of buyers. However, as one of the important evidences for real estate developers to fulfill their delivery obligations on time, and written notice also marks the milestone significance of starting to fulfill their delivery obligations, the author still suggests that real estate developers attach great importance to the performance management of written delivery notice. Proposals for delivery of accompanying materials by real estate developers After the commercial housing has met the substantive delivery conditions stipulated in the law and the contract, the accompanying materials mentioned in this article should not be taken lightly. It is suggested that real estate developers should do a good job in relevant delivery management in the following aspects: 1. Apply to the construction administrative department in time for completion acceptance filing and obtain relevant filing documents before delivery; 2. Send written delivery notice to the buyer according to the address agreed in the commercial housing contract in time, and properly retain relevant delivery documents; 3. When handing over the house to the buyer, the real estate developer shall show the completion acceptance filing documents to the buyer, provide the "Residential Quality Assurance", "Residential Use Manual" and the housing surveying and mapping report, and show and hand over the above documents one by one Confirm and record.

2023-02-14

Viewpoint... Cross-border financing observation-the new rules on foreign debt take effect tomorrow, where are the changes? (I).

On January 5, 2023, the National Development and Reform Commission issued Order No. 56, officially promulgating the "Administrative Measures for the Examination and Registration of Medium and Long-term Foreign Debt of Enterprises" (hereinafter referred to as the "Measures"). The "Measures" will come into effect on February 10, 2023. Since its implementation in 2015, the "Notice of the National Development and Reform Commission on Promoting the Reform of the Registration System for the Registration of Foreign Debt Issued by Enterprises" (hereinafter referred to as "Document No. 2044") will be invalidated and abolished at the same time, marking a new era in the supervision of corporate foreign debt issuance. The Measures have six chapters and 37 articles. Compared with Document No. 2044, it reflects the policy guidance of improving the management system, improving the quality and level of management, and effectively preventing foreign debt risks, improving the management of overseas bond issuance, and strengthening monitoring and risk early warning. While strongly supporting enterprises to use global resource elements to expand domestic and foreign business, it has also played a positive role in optimizing the maturity structure of full-caliber foreign debt and effectively preventing foreign debt risks. This paper compares some of the highlights of the Measures with Document 2044 and attempts to make a brief analysis. 1. "notice" becomes "method" The nature of document No. 2044 is a "notice" and a normative document, while the National Development and Reform Commission clearly defined the "measures" as departmental regulations in answering reporters' questions on the "measures for the examination and Registration of medium-and long-term Foreign debts of Enterprises," and its effectiveness has been improved. 2. "record registration" adjusted to "audit registration" Document No. 2044 adopts the "record registration system management" for the issuance of foreign debt of enterprises, while the "measures" implement the "examination and registration management" for the foreign debt of enterprises that meet the conditions ". The difference between the term and the legal nature is different: "record registration" is not an administrative license, but only an act of administrative organ registration for reference; while the "examination and registration" in the "measures" is an administrative license (the annex to the notice of the General Office of the State Council on the comprehensive implementation of the list of administrative license items issued by the State Council No. 2 [2022] clearly lists "examination and approval of medium-and long-term foreign debt borrowing by enterprises" as an administrative license items). Nevertheless, both the "filing" of document No. 2044 and the "examination and registration" of the "measures" have set conditions for substantive examination. The audit criteria for "examination and registration" in the measures have become stricter, coupled with the impact of the rising cost of overseas financing caused by the continuous interest rate hike of the Federal Reserve, on August 26, 2022, after the National Development and Reform Commission issued the measures for the examination and Registration of medium-and long-term Foreign debts of Enterprises (draft for soliciting opinions), the number of overseas debt issuance and the scale of financing decreased significantly in the second half of 2022. 3. audit principles put more emphasis on "risk prevention" Document No. 2044 proposes to implement scale control of foreign debt issued by enterprises in accordance with the principle of "controlling total amount, optimizing structure, and serving entities", strengthen supervision during and after the event, and effectively prevent risks; the "Measures" increase the principle of corporate foreign debt review and registration management to "Control total amount, optimize structure, serve entities, and prevent risks", and delete the expression "expand the scale of corporate foreign debt" in Document 2044. In 2022, a total of 43 entities and $57.6 billion of bonds defaulted, up 95 per cent and 61 per cent respectively from the same period last year; 97 per cent of these were material defaults, 2.5 per cent were technical defaults and 98 per cent were concentrated in the real estate sector. With the country's vigorous rectification of the property market, real estate enterprises limited financing channels, superimposed on the epidemic caused by the property market downturn, the industry is facing severe debt pressure. Rongchuang, Greenland, Shimao, Baolong, Yuzhou, Rongxin, Zhengrong, Xuhui, Zhongliang, Fuli, Longguang, Aoyuan, Hejing Taifu, Jingrui, Hongyang, Sino-Ocean Capital, Jiayuan, Jinke and many other leading real estate enterprises in the US dollar debt default, have taken debt extensions, exchange offers and other ways to save themselves. It is foreseeable that the principle of "risk prevention" will become an important guiding principle for the examination and registration of foreign debt in the future. At present, the main issuers of foreign bonds are concentrated in financial institutions, urban investment and real estate enterprises, unlike real estate enterprises, so far, the credit situation of urban investment dollar bonds is still good, and showing a trend of regional differentiation. In 2022, Zhejiang, Jiangsu and Shandong, the three eastern coastal developed provinces, are the three major urban investment overseas bond issuing provinces, accounting for about 16%, 15% and 14% respectively, accounting for more than 45% in total. The net financing amount has reached more than 100 billion yuan, and the overseas bond issuance market shows a certain concentration trend; while the regions with the largest net repayment scale are Gansu, Guizhou and Yunnan. Substantial change in 4. review conditions: bonds can also be issued in the event of a default. According to Article 3 of Document No. 2044, the issuance of foreign debt by an enterprise shall meet the following basic conditions: a good credit record and no default on the bonds or other debts issued. It has good corporate governance and foreign debt risk prevention and control mechanism. Good credit standing and strong solvency. The "Measures" added the requirement of "having a reasonable demand for foreign debt funds", which reflects the guiding principle that corporate foreign debt should focus on the main business and service entities; deleted the requirement that "issued bonds or other debts are not in default". "With strong solvency" was changed to "with solvency", giving enterprises more room to borrow foreign debt to save themselves, it reflects the important positioning of the National Development and Reform Commission that "corporate borrowing of foreign debt, especially medium and long-term foreign debt, is an important part of my country's effective use of foreign capital and expansion of two-way opening up. However, it is foreseeable that for companies that have defaulted, the National Development and Reform Commission will conduct a more stringent review of the company's creditworthiness and use of funds. In addition, the "Measures" also added that "the enterprise and its controlling shareholders, and actual controllers have not committed criminal crimes of corruption, bribery, embezzlement of property, misappropriation of property, or disrupting the order of the socialist market economy in the past three years, or are suspected of crimes or major violations of laws According to the requirements of" violations ", the follow-up due diligence of foreign debt issuance intermediaries should increase the relevant scope, relevant sections shall be added to relevant transaction documents and legal documents. 5. scientific delineation of the scope of management, reduce regulatory blind spots 1, clear "indirect borrowing of foreign debt abroad" audit registration. The Measures clarify that these Measures apply to domestic enterprises' indirect borrowing of foreign debt abroad, and also clarify the definition of indirect debt issuance: domestic enterprises' indirect borrowing of foreign debt abroad refers to enterprises whose main business activities are in the country, in the name of enterprises registered overseas, based on the equity, assets, income or other similar rights and interests of domestic enterprises, issuing bonds or borrowing commercial loans abroad. It can be seen that the Measures adopt a more general expression for the supervision of the structure of "indirect bond issuance", which not only brings the indirect bond issuance of red chips and VIE structure into the supervision, but also expands the scope of indirect borrowing of foreign debt that needs to be reviewed and registered to a certain extent, and the transaction structure that meets the characteristics of "indirect bond issuance" is included in the supervision. As for the understanding of "the main business activities are in China" and "based on the equity, assets, income or other similar rights and interests of domestic enterprises", it is necessary to further explain through the government service platform of the national development and Reform Commission to issue the "work guide" and frequently asked questions matching the "management measures". We will also pay close attention to it. 2. Clarify the audit and registration of the issuance structure of overseas SPV and other subsidiaries as issuers. In practice, it is very common for domestic parent companies to set up SPV and other subsidiaries abroad as the issuance structure of overseas bond issuers, and there is no doubt about the filing and examination of this structure. However, the Measures further clarify this: Article 2 of the Measures defines the foreign debts that need to be examined and registered as debt instruments of more than one year borrowed by "domestic enterprises and their controlled overseas enterprises or branches, and the definition of" control ":" the control referred to in these measures refers to the direct or indirect ownership of more than half of the voting rights of the enterprise, or although it does not have more than half of the voting rights, but can control the operation, finance, personnel, technology and other important matters of the enterprise." 6. Application Procedure Optimization 1. Application subject optimization: no longer distinguish between group headquarters and local enterprises According to Article 11 of the Measures, the "headquarters of domestic holding enterprises" shall apply to the examination and registration authority. The distinction between group headquarters and local enterprises is no longer made in accordance with article 2044. To a certain extent, the new regulations are conducive to the unified management of enterprise groups and promote the further optimization of the foreign debt management of the NDRC. 2. The audit time limit was extended from 7 working days to 3 months The "Measures" extend the time limit for issuing a registration certificate from 7 working days after acceptance to 3 months from the date of acceptance (the time taken to complete the review and registration materials is not counted in the time limit for review and registration). It should be noted that at present, there are two time points for foreign debt registration of safe. First, as required on page 8 of the operational guidelines for the administration of foreign debt registration, foreign debt registration procedures shall be handled at the local foreign exchange bureau within 15 working days after the signing of the foreign debt contract; second, as stipulated in Article 10 of the notice of the people's Bank of China on matters related to macro Prudential Management of full caliber cross-border financing, the enterprise shall, after the signing of the cross-border financing contract but no later than 3 working days before the withdrawal, file the signing of the cross-border financing with the capital project information system of the State Administration of Foreign Exchange. Under the condition that the "Measures" clearly require the "Audit Registration Certificate" for foreign exchange registration, the three-month audit period may have problems with the handling of SAFE procedures. The timing of the issuance is worthy of the attention of relevant entities, and the timetable should be planned in advance. 7. strengthens the management of the use of foreign debt funds, and makes the use of foreign debt funds more flexible. The new regulations put forward a positive orientation and negative list of the use of foreign debt, and focus on guiding enterprises to use foreign debt funds from both positive and negative aspects. As an answer to the old regulation, item 47 points out that the use of foreign debt funds should meet the following conditions:(1) do not violate China's laws and regulations;(2) do not threaten or harm China's national interests and economic security;(3) do not violate China's macroeconomic control objectives;(4) do not violate China's relevant development plans and industrial policies;(5) shall not be used to make up for losses and non-productive expenditures;(6) Except for banking financial enterprises, they may not lend to others ". In this regard, the "Notice" has made many adjustments:(1) For the requirement that financial enterprises other than banks are not allowed to lend to others, if "the relevant information has been stated in the application materials for foreign debt review and registration and approval", they can lend. However, the extent to which enterprises need to explain whether such lending constitutes a major change in the use of raised funds and triggers the change application obligation stipulated in Item (II) of Article 18 of the measures still needs to be explored in practice;(2) delete the requirement of "not to be used to make up for losses and non-productive expenditures" and add the requirement of "not to be used for speculation, speculation and other acts". On the whole, the new regulations not only allow to make up for losses, the scope of "speculation and speculation" is also smaller than that of "non-productive expenditure", and the use of enterprise funds is more flexible;(3) the provision of "no new hidden debts of local governments" is added, once again, it is clearly stated that the state has repeatedly emphasized in many documents, such as Guofa [2014] No. 43, Guobanfa [2015] No. 40, FGFFEI [2018] No. 706, FGFEI [2019] No. 666, FGFEI [2018] No. 27, and FBC [2021] No. 15, who borrows and pays back the debts of state-owned enterprises, the local finance is not guaranteed, and the local government is only limited. Guiding Principles of Responsibility. Compared with document No. 2044, on the basis of repeatedly emphasizing the encouragement of foreign debt funds to flow to national key strategies and key projects, the new regulations emphasize that "enterprises can make independent decisions to apply foreign debt funds at home and abroad according to their own credit situation and actual needs." it defines the basic attitude of regulators on the free use of foreign debt funds within the legal scope, which can be mutually confirmed with the content of the new regulations mentioned in this article to expand the scope of capital lending. The 8. clearly states that foreign exchange registration requires a Certificate of Audit and Registration. Document No. 2044 only requires enterprises to go through relevant procedures such as inflow and outflow of foreign debt according to regulations on the basis of the filing registration certificate, but does not clearly specify the registration of foreign debt. Article 17 of the Measures specifies that foreign exchange registration must be handled by means of the Examination and Registration Certificate: enterprises shall go through relevant procedures such as foreign exchange registration, account opening, fund receipt and exchange, and fund use according to regulations on the basis of the Examination and Registration Certificate. For enterprises that fall within the scope of management of these Measures but have not obtained the "Examination and Registration Certificate", the relevant departments will not handle the relevant procedures, and financial institutions will not handle the relevant business. 9. takes information disclosure as the core and compacts the main responsibility of all parties. Document No. 2044 stipulates that "within 10 working days after the end of each issue, the issuance information shall be submitted to the National Development and Reform Commission", and the "Measures" greatly enriched the requirements for information disclosure: First of all, the time and content of the post-event submission are clarified. The enterprise shall, within 10 working days after borrowing each foreign debt, submit the information of borrowing foreign debt to the examination and registration authority through the network system, including the main business indicators of the enterprise and the situation of foreign debt borrowing, etc.; within 10 working days after the expiration of the validity period of the examination and registration certificate, the corresponding foreign debt borrowing situation shall be submitted. The term "after borrowing foreign debt" refers to the exercise of the right of the enterprise to withdraw foreign debt funds (the completion of the delivery of foreign bonds or each withdrawal of commercial loans); Secondly, a reporting system for major events has been added, and for major situations that may affect the normal performance of debts, such as domestic and foreign debt repayment risks or major asset restructuring, enterprises should promptly report relevant information and take risk isolation measures to prevent spillover and cross-default risks of domestic bond default risks; Third, a new periodic reporting system has been added. Enterprises should report to the examination and registration authority through the network system the use of foreign debt funds, the payment of principal and interest, the planned arrangement, and the main business indicators within five working days before the end of January and July each year; Fourth, the obligation of overseas investigation and reporting has been increased. If enterprises or relevant intermediary agencies need to cooperate with overseas regulatory agencies for inspection or investigation due to borrowing foreign debts, and involve national security or public interests, they should report to the relevant domestic authorities in advance. 10. Enhance Change Regulation According to the "Measures", after the completion of the foreign debt review and registration, if the currency of the foreign debt to be borrowed or the type of debt instrument changes, the use of the raised funds changes significantly, or other circumstances that require major adjustments to the relevant content of the "Review and Registration Certificate" occur, the enterprise shall apply to the review and registration authority for changes before the relevant circumstances occur; and Document 2044 only stipulates, "When there is a large difference between the actual situation of the issuance of foreign debt by an enterprise and the registration of the record, it shall be explained when the information is submitted". 11. Other changes in the Measures In addition to the above changes, the Measures have also made many changes to the external debt audit and registration process, such as the addition of a mechanism for the completion of audit materials, the parallel submission of network systems and paper materials, the refinement of the content of debt instruments, the enhancement of the responsibilities of enterprises and intermediaries, etc., which we will discuss in subsequent articles. Conclusion: winter and spring, looking ahead to the bond market in 2023 In 2022, a total of about $104.8 billion million of Chinese dollar-denominated debt will be issued, down 57% from 2021; Bloomberg Chinese Dollar-denominated Debt Investment Grade Index, Bloomberg Chinese Dollar-denominated Debt High Yield Index

2023-02-10

Viewpoint | If a divorce is filed after signing a "divorce property division agreement", how is the validity of the agreement determined in divorce proceedings?

Basic case Mr. Wang and Ms. Zhang registered for marriage in August 2006 and had a daughter after marriage. In April 2019, Mr. Wang and Ms. Zhang signed a "property division agreement" under the witness of witnesses, which made arrangements for the division of common property and debts in the future divorce. At the same time, it was agreed that "in the future, whether it is a divorce by agreement or a divorce by litigation, the division of property and debts shall be carried out in accordance with this agreement". Mr. Wang filed a lawsuit for divorce in July 2019, and the court ruled that divorce was not allowed. In March 2020, Mr. Wang again sued the court for divorce, demanding the division of joint property and debts after marriage. Ms. Zhang believes that it should be handled in accordance with the "Property Division Agreement" signed by both parties. Judgment of first instance The court of first instance held that the property division agreement signed by both parties based on the principle of voluntariness and based on the true intention was legal and valid. Both parties clearly agreed that both parties should divide property and debts according to the contents of the agreement, and both parties should perform their respective obligations according to the contents of the agreement. Therefore, the court of first instance decided to divide the common property and debts of both parties in accordance with the contents of the Property Division Agreement. Appeal Opinion Mr. Wang believes that the "Property Division Agreement" is not an expression of its true intention, but was signed after making compromises and concessions to Ms. Zhang in order to end the marriage as soon as possible. According to the Supreme People's Court on the application<中华人民共和国婚姻法>The Interpretation of Certain Issues (III) the provisions of Article 14, "If the parties reach a property division agreement conditional on registering a divorce or going to the people's court to agree on a divorce, if the two parties fail to agree on a divorce, and one party repents in the divorce proceedings, the people The court shall determine that the property division agreement has not taken effect, and divide the joint property of the husband and wife according to the actual situation", the court of second instance shall determine that the Property Division Agreement has not entered into force. judgment of second instance The court of second instance held that the property division agreement was reached by both parties on the basis of equality and voluntariness, which was the true intention of both parties; the content of the agreement did not involve the identity relationship, but only made an agreement on the division of the common property and common debts of husband and wife, and the content did not violate the mandatory provisions of laws and administrative regulations, did not infringe upon the interests of the state, the collective and the third party, and did not violate public order and good customs, the property division agreement shall be confirmed to be legal and valid. Mr. Wang's proposal should be in accordance with the Supreme People's Court on the application of<中华人民共和国婚姻法>Article 14 of the Interpretation of Certain Issues (III) that the "Property Division Agreement" is invalid. This court believes that the premise of applying the above judicial interpretation is that the parties reach a "property division agreement conditional on divorce by agreement". In this case, the "Property Division Agreement" is not conditional on divorce by agreement, but stipulates that no matter "divorce by agreement" or "divorce by litigation", both parties should comply with the agreement on the implementation of the property division agreement, and both parties did not choose to divorce by agreement, but filed a lawsuit for divorce. Therefore, the above judicial interpretation is not applicable to this case. Mr. Wang's appeal reason cannot be established, and this court will not support it. The appeal was rejected and the original sentence was upheld. Lawyer's statement The original Supreme People's Court on the application.<中华人民共和国婚姻法>The "Interpretation of Certain Issues" (III) has been repealed, and the "Supreme People's Court on the Application<中华人民共和国民法典>Article 69 of the (I) of Interpretation of Marriage and Family: "If the parties reach an agreement on the disposal of property and debts on the condition of divorce by agreement or divorce mediation in the people's court, if the divorce between the two parties fails and one party goes back on his word in the divorce proceedings, the people's court shall determine that the agreement on the disposal of property and debts has not taken effect, according to the actual situation, in accordance with the provisions of articles 1087 and 1089 of the civil code, the judgment" took over the original article 14 and made relevant amendments. Lawyers suggest that the parties should pay special attention when signing such divorce agreements. First, they should carefully consider the terms of the agreement involving their own rights and obligations, and then sign them. Secondly, for property agreements that are beneficial to one's own party, one can sign an internal property agreement without the word divorce and the meaning of divorce. Third, in this case, if the divorce property division agreement is also applicable to litigation divorce, it can be clearly agreed in the agreement, even if the agreement fails to divorce, the content of the agreement is still valid, and both parties shall not go back on their word, and the divorce agreement is also applicable in the litigation divorce; finally, the divorce dispute case seems simple, but actually involves all aspects, involving the identity of the husband and wife, the custody of the child, the determination and division of common property, the distribution of claims and debts and other legal professional issues, the parties had better draft the relevant divorce agreement after consulting a lawyer, ensure that their legitimate rights and interests are maximized.</中华人民共和国民法典></中华人民共和国婚姻法></中华人民共和国婚姻法></中华人民共和国婚姻法>

2023-02-09

Real Estate Perspective | Analysis of the Effectiveness of a Subscription Agreement between a Developer and a Buyer without a presale Permit

1. What is the commercial housing presale permit system? What is the commercial housing purchase and sale subscription contract? The commercial housing presale permit system is commonly known as "selling off-plan houses" and "selling uncompleted houses". It refers to the real estate development company that has been built or is about to be built but has not yet been completed. A real estate transaction in which the owner has the ownership of the purchased house in a certain period of time. In order to reach the above transaction, real estate development enterprises will generally reach a relevant subscription agreement with the buyer, that is, the "commercial housing purchase and sale subscription agreement", which refers to the contract concluded by the parties before signing the commercial housing presale or the on-the-spot sale contract, which is signed by the parties at a certain time in the future and confirmed by the commercial housing transaction, It is generally embodied in the form of commercial housing order, appointment, reservation and other forms. China has also made clear provisions and restrictions on the presale of commercial housing. For example, Article 45 of the the People's Republic of China Urban Real Estate Management Law stipulates that the presale of commercial housing shall meet the following conditions: 1. All the land use right transfer fees have been paid and the land use right certificate has been obtained; 2. Hold the construction project planning permit; 3. According to the commercial housing provided for presale, the funds invested in development and construction shall reach more than 25% of the total investment in the project construction, and has determined the construction progress and completion and delivery date; 4. Register the presale with the real estate management department of the people's government at or above the county level and obtain the commercial housing presale license. The commercial housing presale shall, in accordance with the relevant provisions of the State, report the presale contract to the real estate administration department and the land administration department of the people's government at or above the county level for registration and filing. Article 6 of the Measures for the Administration of the presale of Urban Commercial Housing stipulates that the presale of commercial housing shall be subject to a licensing system. To presale commercial housing, a development enterprise shall apply to the real estate management department for a presale permit and obtain a Commercial Housing presale Permit. No commercial housing presale may be carried out without the Commercial Housing presale Permit. Article 2 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of commercial housing sales contract disputes stipulates that if the seller fails to obtain the commercial housing presale license certificate, the commercial housing presale contract concluded with the buyer shall be deemed invalid, but if the commercial housing presale license certificate is obtained before the lawsuit, it can be deemed valid. The above provisions also raise a practical question: if the real estate development enterprise does not obtain the presale license, is the commercial housing subscription agreement signed with the buyer necessarily invalid? Analysis of the effectiveness of a Subscription Agreement with a home buyer 2. the developer has not obtained a presale permit (I) is a view that the subscription agreement is invalid Case 1:(2021) Yu 0108 Minchu 3444 The plaintiff Wang mou signed an "internal customization agreement" with the defendant Rui mou company in January 2018, agreeing to sell a set of houses developed by Rui mou company to the plaintiff. The plaintiff paid the defendant the corresponding purchase price as required, and the defendant promised to sign the "Commercial Housing Sales Contract" online as soon as possible, but the project has not started construction, and the online signing time promised by the defendant has repeatedly expired. After inquiry, the plaintiff learned that the project did not obtain the "commercial housing presale license", the defendant belonged to the illegal sale of real estate, and the house sold did not meet the legal sales conditions. The court held that the commercial housing presale shall implement the license system, and the development and operation enterprises shall go through the presale registration and obtain the "commercial housing presale license" when carrying out the commercial housing presale. The commercial housing presale contract concluded without meeting the conditions for the sale of the house shall be deemed invalid. In this case, the real estate involved in the case has not yet obtained the commercial housing presale license certificate, so the "internal customization agreement" signed by the plaintiff and Rui mou company is an invalid contract due to violation of legal provisions, and the invalid contract relationship of the contract has not been established since the beginning, so the court confirms that the contract signed by the plaintiff and Rui yue company is invalid; After the contract is invalid or revoked, the property acquired due to the contract shall be returned, the party at fault shall compensate the other party for the losses suffered as a result. The above view holds that the subscription agreement is invalid. Those who hold this view believe that the above-mentioned legal provisions are mandatory provisions of the law. Without obtaining a commercial housing presale license, the subscription agreement signed by both parties is invalid due to violation of the mandatory provisions of the law, and the deposit collected after the invalidity shall be in accordance with The contract is invalid and returned to the buyer. Some judges also believe that in some cases, the buyers also have faults in the middle, especially when some buyers later obtained the presale license from the developer, they also said that they could not sign a formal purchase contract because of the reasons of the buyers. Or the developer clearly informs in the subscription agreement that there is a fault in signing the subscription agreement with the developer even though the presale license has not been obtained. In this case, both parties are at fault when signing the subscription agreement. When the buyer claims to confirm that the subscription agreement is invalid, in order to safeguard the interests of both the developer and the buyer and ensure the fairness and justice of the judgment, the subscription letter should be ruled invalid. The developer returns the deposit. (II) is a view that the subscription agreement is valid Case 2:(2021) No. 166 at the beginning of the Republic of 0702, Jin Dynasty On April 17, 2018, the plaintiff Chen Mou and the defendant Jiu Real Estate Company signed an "Internal Subscription Letter", which stated the plaintiff's subscription house number, construction area, subscription unit price, subscription total price, deposit, etc. It was agreed that the subscriber should bring the internal subscription letter before June 17, 2018 unless otherwise notified by the seller, the down payment (including the paid deposit) of not less than 50% of the total contract amount of the house, the certificate and other relevant materials required for the purchase of the house, the signing of the "commercial housing sales contract" with the seller and the payment of the down payment payable, the subscriber's breach of contract, the seller has the right to dispose of the above-mentioned house separately, and the deposit paid by the subscriber will not be refunded; For the seller's breach of contract, the deposit shall be doubled. On the same day, the plaintiff paid a deposit of 20000 yuan to the defendant, the real estate company. On June 17, 2018, when the plaintiff delivered 50% of the down payment in accordance with the "Internal Subscription Letter", the defendant stated that "the house has not started construction and the down payment will not be paid", and the defendant did not sign the "Commercial Housing Sales Contract" with the plaintiff. At present, due to changes in the project, the use of the house has been changed and the purpose of the contract cannot be realized. The plaintiff requires the defendant to double the deposit of 40000 yuan. The defendant argued that the project has not yet obtained a commercial housing presale license, the validity of the subscription agreement is invalid, and the agreement on the deposit is also invalid. 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 application of law in the trial of commercial housing sales contract disputes, the seller has not obtained the commercial housing presale license certificate, and the commercial housing presale contract concluded with the buyer shall be deemed invalid. However, the "Internal Subscription Letter" signed by the plaintiff and the defendant only stipulates the house number, purchase amount, deposit, etc. subscribed by the plaintiff, and does not contain the main content of the commercial housing sales contract stipulated in Article 16 of the "Commercial Housing Sales Management Measures". Therefore, the nature of the subscription letter is a commercial housing subscription contract of an appointment nature, not a commercial housing sales contract of this nature. The subscription letter is the true intention of both the original and the defendant, and there is no statutory invalidity and should be deemed valid. Now due to the defendant's breach of contract, the purpose of the contract can not be achieved, the plaintiff asked him to double the return of the deposit, in line with the law, the court to support. The above view that the subscription agreement is valid. In this view, according to Article 495 of the the People's Republic of China Civil Code, the parties agree to conclude a contract within a certain period of time in the future, such as the subscription, order, reservation, etc., constitute an appointment contract. If one of the parties fails to perform the obligation to conclude the contract under the appointment contract, the other party may request it to bear the liability for breach of the appointment contract. Therefore, the view is that the nature of the subscription agreement for the nature of the reservation of the commercial housing subscription contract, should be valid. The author's point of view: from the point of view of the purpose and content of the subscription agreement, it is an agreement on matters such as the signing of a formal commercial housing sales contract in the future, and a commitment reached by both parties to enter into a formal commercial housing sales contract in the future. it is the true intention of both parties, creating conditions for the subsequent conclusion of this contract, and binding both parties to undertake future obligations when entering into a commercial housing sales contract. The nature of the subscription agreement is an appointment contract, which is significantly different from the contract for the sale of commercial housing in the nature of the contract, so its signing is not a formal act of commercial housing presale, so it should not be bound by whether or not to obtain a presale license. The distinction between the reservation contract for the sale of commercial housing and the contract of this contract. Of course, there are also exceptions, such as the supreme law guidance case:(2018) shan 01 min zong no 8145. in this case, the court held that although the subscription contract was essentially a commercial housing presale contract, wentian company did not actively perform its due contractual obligations under the condition that its own contractual purpose had been realized, and should be aware of the illegality of its failure to apply for a commercial housing presale license, now it filed a lawsuit in this case on the grounds of illegal facts caused by its own reasons, the real purpose is to obtain greater benefits beyond the contract expectations, and its behavior is obviously contrary to the social value orientation and public perception. In order to promote the core values of socialism and demonstrate judicial justice, such behavior should not be supported. It was finally determined that the subscription contract involved in the case was valid, and a valid legal relationship between the two parties was formed in the commercial housing presale contract. From the above, it is not difficult to see that if the developer signs an appointment contract with the buyer before obtaining a presale license, it indicates that a new contract will be determined in the future to finally clarify the specific content of a certain legal relationship between the two parties. At this time, the contract may not be valid. During the trial, the court will generally measure the interests of both parties based on the specific circumstances of the case. It must not only abide by laws and regulations, ensure the legality of the judgment, but also ensure the fairness and justice of the judgment, and make a comprehensive judgment. The purpose is not to allow offenders who try to exploit legal loopholes. Those who profit, demonstrate judicial justice, and promote the core values of socialism. 3. risk analysis For home buyers, before the presale license is obtained, the buyer signs a subscription agreement and pays the subscription fee. If the project does not progress smoothly, this will transfer the greater capital risk to the home buyer, which may cause the home buyer to lose all his money. For real estate development enterprises, although funds can be obtained for project construction by signing a commercial housing subscription agreement, they cannot sell off-plan housing before obtaining a commercial housing presale license, and their behavior is illegal. And when real estate development companies obtain presale permits, they have to face selling houses at lower housing prices, which is what real estate development companies are unwilling to face. In terms of national supervision, under the current commercial housing presale management system, the determination that the subscription agreement is valid will cause some real estate development companies to evade supervision. According to relevant regulations, the housing presale must enter the account designated by the real estate management department, and the money can only be used for project construction, but there are no corresponding regulatory measures for the funds paid according to the subscription agreement. After the real estate development company obtains the subscription funds, It may be used for other projects, which increases the risk of home buyers, is not conducive to social stability, and is not conducive to the state's supervision and regulation of the real estate industry. Therefore, when buying commercial houses and signing relevant sales contracts, buyers should raise their awareness of risk prevention. In order to protect the safety of transaction funds and their own legitimate rights and interests, buyers should carefully review the main body of commercial housing sales before signing the contract. Sales conditions, etc, whether the "five certificates" (land use right certificate, construction land planning permit, construction project planning permit, construction project construction permit, and commercial housing presale permit) of the project real estate are complete and fully examined and paid attention to, real estate development enterprises are required to show themselves the relevant certificates of legal housing transactions. When signing the subscription agreement, real estate development enterprises and buyers should pay attention to whether the agreement has the main contents and substantive requirements of the commercial housing sales contract stipulated in Article 16 of the Measures for the Administration of Commercial Housing Sales (including but not limited to the basic information of both parties, the basic information of the commercial housing, the determination method and total price of the disputed commercial housing price, the delivery date and other main contents of the commercial housing sales contract), avoid the subscription agreement is recognized as a commercial housing sales contract. If the buyer wants to leave room for himself and sign the reservation contract in advance before signing the formal contract, the buyer should carefully examine the contract and avoid the actual performance, and prevent himself from performing or accepting the other party's performance in advance, so as not to be deemed as the contract has been established.

2023-02-08

Viewpoint | Lawyers handle the specific operation and steps of the free transfer of state-owned property rights of enterprises.

2023-02-08