02
2023-02
Before and after the Spring Festival, consultants have been continuously consulting on the suspected infringement of their own publicity channels. In recent years, similar consultations have been continuous. Although they are commonplace, they are still emerging. Therefore, this article is written to sort out the relevant matters that should be paid attention to in the publicity of their own channels in the multimedia/self-media era, and to list the relevant risk points in the law and cases in simple language as far as possible for the reference of legal and publicity personnel. Classification and Development of 1. Propaganda Channels The external publicity channels of enterprises and institutions are mainly divided into two types, one is the traditional paper material publicity, and the other is through the official website, webpage, WeChat public number, today's headline number, Douyin or Kuaishou and other software or platform registration Account for publicity. Most of the content is self-collected or forwarded. Compared with the previous paper media propaganda, today's multimedia/self-media era has higher requirements for content. Not only must it be time-sensitive, but also graphics, text, sound, video, and design to catch people's attention and gain more More attention. Therefore, when all enterprises and institutions carry out publicity through multimedia/self-media, they should make more efforts in content management. Since the media era, many personal videos and published graphic works use a large number of fashion elements, posters, video clips of movies and TV plays, which appear to be high-end and fashionable. However, as commercial enterprises and institutions, they must be careful when using relevant materials and do a good job in reviewing relevant contents. From the perspective of avoiding infringement, the published contents should be original, authorized or legal sources. Content Review from the Perspective of 2. Copyright Law The content in the publicity materials is the core, and the review of the content is the most important thing. Even if it cannot reach the third review and third review of the traditional paper media publishing industry, a review mechanism should be designed that can be issued only after the author/editor's self-review and the relevant reviewer's confirmation. In addition to the prohibition of publication of illegal content listed in the Copyright Law, the following review points should be noted. 1. About written works The first is to advocate originality; the second is to obtain the consent of the right holder or have a legal source, that is, to obtain the authorization of the right holder/starter, and to retain written evidence. For example, if you need to reprint a provincial newspaper public article, you should consult on its website or WeChat background, obtain permission before reprinting, and keep the certificate of permission. 2. About art works (pictures, pictures, art words, etc.) To promote their own creation, other works of art and pictures that must be used can be purchased from a professional company or authorized by the right holder. At present, the cartoon pictures or expression packs widely used by the public number are likely to be the original works of the right holder and should be authorized to be used again. The art fonts circulated on the Internet also need to have a legal source, and cannot be downloaded and used without permission. You can avoid the risk of infringement by contacting the right holder to obtain authorization, create by yourself or entrust a qualified third-party design. The machines used for writing, editing and publishing shall use genuine software, and the edited and published contents shall use the font library and authorized resource library of the genuine software, and those from unknown sources shall be prohibited. 3. About audio works The soundtrack in the promotional material needs to be from a legitimate source and is recommended to be selected from a professional paid music library. Self-created can be used with confidence, or you can choose classical music that has exceeded the copyright protection period, and hire professionals to play/sing/synthesize it for use (an agreement should be signed with professionals). Some self-media platforms have their own background music libraries, and attention should be paid to the scope of their use. The external publicity of enterprises and institutions is generally recognized as commercial use in judicial practice. The music libraries brought by the platforms are generally licensed for personal use and cannot be used for commercial use. Therefore, the use of the platform's own resource library should be implemented whether it can be applied to business. 4. About video works The videos in the promotional materials need to have legal sources, and it is recommended to shoot, purchase or obtain authorization from the right holder. If the selected video does not have a legal source, in addition to the copyright owner, it may also be suspected of infringing the rights of the performer or the legal rights of other rights holders. Therefore, the selection of video works must especially implement the legal source. 5. About other works/rights In addition to the above-mentioned text, pictures, audio and video, the published content may also contain other works/rights, such as layout design, trademarks, etc., which cannot be used without legal sources to avoid the risk of infringement. Content Review from the Perspective of 3. Anti-Unfair Competition Law The the People's Republic of China Anti-Unfair Competition Law is a law enacted to promote the healthy development of the socialist market economy, encourage and protect fair competition, stop unfair competition, and protect the legitimate rights and interests of operators and consumers. For enterprises and institutions, foreign publicity should also pay attention to avoiding unfair competition, which is mainly reflected in the following points: 1. The published content shall not have the following confusing behaviors, causing people to mistake it for other people's products or have specific connections with others, including: it is not allowed to use the same or similar product name, packaging, decoration, etc. that have certain influence with others without authorization. Logo; it is not allowed to use enterprise names (including abbreviations, font names, etc.), social organization names (including abbreviations, etc.), and names (including pen names, stage names, translated names, etc.) that others have certain influence on without authorization; It is not allowed to use the main part of the domain name, website name, web page, etc. that others have certain influence without authorization; there must be no other confusing behavior that can cause people to mistake it for other people's goods or have a specific connection with others. 2. The published content shall not make false or misleading commercial publicity on the performance, function, quality, sales status, user evaluation, honor, etc. of the product, so as to deceive or mislead consumers. It is not allowed to help other operators to carry out false or misleading commercial publicity. 3. The published content shall not fabricate or disseminate false or misleading information to damage the business reputation and commodity reputation of competitors. 4. The published content shall not disclose the trade secrets of others. In addition to the above four points, in terms of protecting the legitimate rights and interests of enterprises and institutions, enterprises and institutions shall not disclose their own business secrets. It sounds strange, but it is not uncommon in practice. In order to publicize, enterprises and institutions often preemptively release their technological breakthroughs, new research and development results or new products. With the release of content, it may result in the inability to apply for patents or related research and development results/commercial information. Can not be protected as trade secrets. Content Review from the Perspective of 4. Advertising Law In many cases, the publicity documents of enterprises and institutions involve the publicity and promotion of enterprises and products. At this time, the publicity documents are subject to the regulation of the Advertising Law. In order to avoid risks, combined with the common situation of external publicity, the following points should be paid attention: 1. The published content shall be true and objective, and shall not contain false or misleading content. 2. In the process of promoting enterprises or products, terms such as "national level", "highest level" and "best" shall not be used. 3. In the process of promoting enterprises or products, there shall be no direct or disguised content that belittles peers. 5. Summary In order to avoid infringement, all legal or minor editors must pay attention when publicizing: first, the contents of pictures, texts, audio and video should be determined to be original or have legal sources; Secondly, the relevant content does not infringe other legitimate rights and interests of others, such as portrait rights; Third, the content that is not authorized but needs to be displayed can be quoted in a reasonable and small amount and the source can be indicated. For the relevant content that cannot be quoted in a reasonable and small amount, you can jump directly to the original web page/website of the right holder by making links; fourth, the content is true and objective, avoiding terms such as "national", "highest", and "best. For the published content, after the above review can avoid the vast majority of illegal or infringement risk. Since the vast majority of the publicity does not involve special laws such as patent law, this article will not be expanded on and may be detailed in a subsequent series of articles if necessary. This article can be used as a reference for enterprises and institutions to publish self-examination publicity materials through their own publicity channels.
2023-02-02
02
2023-02
In accordance with the Ministry of Finance and the former Ministry of Land and Resources "on the issuance of the Interim Measures for the Collection and Administration of Mining Rights Transfer Income" (Caizong [2017] No. 35) requirements, the Provincial Department of Natural Resources organized the formulation (adjustment) of the mining rights in Shandong Province Market benchmark price (including provincial and municipal), with the consent of the provincial government, is now announced. This base price shall be effective from February 1, 2023 and shall be valid until January 31, 2026. The original benchmark price of mining rights market in Shandong Province (including provincial and municipal levels) shall be abolished at the same time. 1. background and process The market benchmark price of mining rights (hereinafter referred to as the "benchmark price") is an important reference basis for the state, as the owner of mineral resources, to reasonably collect the proceeds from the transfer of mining rights from mining rights holders. Ministry of Land and Resources of the Ministry of Finance on the issuance<矿业权出让收益征收管理暂行办法>The notice (Caizong [2017] No. 35) stipulates that the benchmark price shall be regularly set by the local competent department of mineral resources with reference to similar market conditions, and shall be promulgated and implemented with the consent of the provincial people's government. The opinions of the former Shandong Provincial Department of Land and Resources on further strengthening the evaluation and management of the proceeds from the transfer of mining rights (No. 1, 2017) clearly: the Provincial Department of Natural Resources is responsible for the benchmark price of 13 minerals, such as deposit, iron and coal, and the municipal departments in charge of natural resources are responsible for formulating the benchmark price of other minerals in their administrative areas and reporting it to the provincial departments for examination and approval. In October 2018 and March 2019, with the consent of the provincial government, the Provincial Department of Natural Resources successively issued the mining rights of 14 minerals (increased ilmenite) at the provincial level, the benchmark prices of prospecting rights for 13 minerals, and the municipal level. The mining rights of 71 minerals and the benchmark prices of prospecting rights for 45 minerals. In July 2020, with the consent of the provincial government, the Provincial Department of Natural Resources issued a notice on the adjustment of the benchmark price of Yantai City. The benchmark price is dynamically adjusted according to the market situation, and the Provincial Department of Natural Resources has organized and carried out the adjustment of the benchmark price at the provincial and municipal levels, forming the "benchmark price of mining rights market in Shandong Province" (including provincial and municipal levels), which has been studied and approved by the executive meeting of the provincial government. 2. formulation basis The formulation of the benchmark price is mainly based on the guiding requirements for the formulation of the market benchmark price of mining rights in the Opinions of Shandong Provincial Department of Land and Resources on Further Strengthening the Evaluation and Management of the Income from the Transfer of Mining Rights (No. 1, 2017), taking into account the influencing factors such as resource reserves, mineral product prices, mining difficulty, mining technical conditions, transportation conditions, and regional differences, adjust or re-determine the benchmark price standard for the proceeds from the transfer of mining rights in different regions and different minerals on the basis of the current benchmark price. Main contents of 3. In accordance with the registration authority for the transfer of mining rights, combined with the actual development of mineral resources in our province, the provincial benchmark prices of 20 minerals, the mining rights of 78 minerals, and the municipal benchmark prices of prospecting rights of 43 minerals are formulated (adjusted) this time. 1. New benchmark prices at the provincial level. According to the notice of Shandong Provincial Department of natural resources on promoting the reform of mineral resources management (Lu natural resources regulation [2020] No. 2), the provincial level has newly formulated the benchmark prices of six minerals, including coalbed methane, shale gas, oil shale, fluorite, sea sand and carbon dioxide gas, and the benchmark rates of coal, iron, gold and rock salt. 2. There are benchmark price adjustments at the provincial level. First, the new benchmark price of most minerals is slightly higher than the current benchmark price. The second is to increase the adjustment coefficient of associated minerals. The third is to increase the adjustment coefficient of geothermal recharge. The fourth is to adjust the adjustment coefficient of rock salt burial depth. The fifth is to adjust the adjustment coefficient of prospecting right resources according to the Classification Standard for Solid Mineral Resources Reserves (GB/T17766-2020). 3. The new benchmark price at the municipal level. The five cities of Jinan, Qingdao, Weifang, Tai'an, and Heze have newly formulated the benchmark prices of mining rights for 15 minerals; the three cities of Zibo, Weifang, and Jining have newly formulated the benchmark prices of prospecting rights for 13 minerals. 4. There are already benchmark price adjustments at the municipal level. 11 cities including Jinan and Qingdao raised the benchmark price of mining rights for 65 minerals; 4 cities including Qingdao and Yantai lowered the benchmark price of mining rights for 15 minerals; the benchmark price of mining rights for 15 minerals in Yantai, Weihai and Rizhao remained unchanged; 7 cities including Qingdao and Dongying adjusted the benchmark price of prospecting rights for 36 minerals; and the benchmark price of prospecting rights for one mineral in Weihai remained unchanged. 4. noun interpretation 1. Market benchmark price of mining rights: refers to the benchmark price standard for the proceeds from the transfer of mining rights in different regions and different types of minerals determined within a certain period of time according to the influencing factors such as resource reserves, mineral product prices, mining difficulty, mining technical conditions, transportation conditions, regional differences, etc. In the process of the transfer of mining rights, the mining rights assessment agency shall assess the proceeds of the transfer and determine the proceeds of the agreement transfer shall not be lower than the market benchmark price of the mining rights. 2. The benchmark rate of mining right transfer income: refers to the benchmark rate of mining right transfer income levied according to the transfer rate of return (the ratio of mining right transfer income to the sales income of mineral products), which is determined by the provincial mineral resources department and the financial department, and According to the price changes of mineral products and the needs of economic development, timely adjustments shall be made, and announced and implemented after being approved by the provincial people's government. Competitive transfer of mining rights, with the transfer rate of return as the subject, the transfer proceeds floor price is determined by the mining rights transfer benchmark rate. In view of the fact that the Ministry of Natural Resources is studying and issuing relevant policy documents for the collection of proceeds from the sale of some minerals at the benchmark rate, the proceeds from the sale of relevant minerals are temporarily levied at the benchmark price announced this time, and the benchmark rate will be implemented in accordance with relevant regulations after the relevant documents of the Ministry of Natural Resources are issued. 5. Attachment Content Annex: 1. Benchmark Price of Mining Right Market in Shandong Province (Provincial Level) 2. Shandong mining rights market benchmark price (municipal level)</矿业权出让收益征收管理暂行办法>
2023-02-02
01
2023-02
On January 17, 2023, the 39th executive meeting of the State Administration of Mine Safety Supervision in 2022 deliberated and approved the measures for reporting, investigation and handling of Mine production Safety Accidents (hereinafter referred to as the "measures"), and issued them to the mine safety supervision departments of all provinces, autonomous regions, municipalities directly under the Central Government and Xinjiang production and Construction Corps, provincial bureaus of the State Administration of Mine Safety Supervision, and relevant central enterprises. 1. [scope of application]] In order to regulate the reporting, investigation and handling of mine production safety accidents, and to prevent and contain mine production safety accidents, these measures are formulated in accordance with the the People's Republic of China Safety Production Law, the Regulations on the Reporting, Investigation and Handling of Production Safety Accidents, and the Regulations on Coal Mine Safety Supervision. These Measures shall apply to the reporting, investigation and handling of mine production safety accidents. 2. [concept of mine production safety accident]] Mine production safety accidents refer to the ground production system directly related to mine production and belonging to the mine, including wellhead and below areas, open-pit mines and industrial squares, as well as affiliated tailings ponds, dump sites, washing plants, gangue hills, gas pumping stations and other places, production safety accidents that cause personal casualties or direct economic losses in production and operation activities. 3. accident grade standard] According to the casualties or direct economic losses caused by the accident, the accident is divided into the following levels: (I) particularly serious accident refers to an accident that causes more than 30 deaths, or more than 100 serious injuries (including acute industrial poisoning, the same below), or direct economic losses of more than 0.1 billion yuan; (II) major accident refers to an accident that causes 10 to 30 deaths, or 50 to 100 serious injuries, or direct economic losses of 50 million yuan to 0.1 billion yuan; Major (III) accidents refer to accidents that cause 3 to 10 deaths, or 10 to 50 serious injuries, or direct economic losses of 10 million yuan to 50 million yuan; (IV) general accidents refer to accidents that cause less than 3 deaths, or less than 10 serious injuries, or direct economic losses of 1 million yuan to 10 million yuan. The term "above" in this article includes this number, and the term "below" does not include this number. The accident level shall be determined according to the highest level among the number of deaths, serious injuries and direct economic losses. Where the accident level is determined by the number of serious injuries, the number of serious injuries and the number of deaths shall be counted at the same time. 4. [Identification of accident personnel and economic losses]] 1, personnel identification. The identification of the person who died in the accident shall be determined on the basis of the certification materials issued by the public security organ or the medical institution with Grade II, Grade A or above qualification, and the identification of the seriously injured person shall be determined on the basis of the certification materials issued by the qualified medical institution. 2, economic loss determination. The accident unit shall count the direct economic losses, and the mine safety supervision and supervision department responsible for leading the accident investigation shall determine it according to the statistical results provided by the local people's government or the accident unit that organizes or participates in the accident rescue and compensation work. Statistical results should be dated. The direct economic losses caused by the accident include: Expenses incurred after the (I) of personal injury or death, including medical expenses, nursing expenses, funeral and pension expenses, subsidies and relief expenses, and off-work wages; (II) aftercare expenses, including transactional expenses for handling accidents, on-site rescue expenses, on-site cleaning expenses and accident compensation expenses; Loss value of (III) property, including loss value of fixed assets and loss value of current assets. 3. Change adjustment. If the number of casualties caused by the accident changes within 30 days from the date of the accident, the accident level shall be re-determined according to the changed number of casualties. The missing persons caused by the accident shall be counted according to the dead persons 30 days after the date of the accident, and the accident grade shall be re-determined. If the emergency rescue time exceeds 30 days, the number of casualties and direct economic losses shall be re-determined within 7 days after the end of the emergency rescue. If the re-approved casualty and direct economic loss are inconsistent with the original report, the accident level shall be determined according to the changed casualty and direct economic loss. 5. [Time requirement for submission of accident report]] 1. After an accident (including a dangerous accident) occurs in a mine, the relevant personnel at the scene of the accident shall immediately report to the person in charge of the mine. 2. After receiving the report, the person in charge of the mine shall, within one hour, report to the mine safety supervision department of the people's government at or above the county level where the accident occurred, and at the same time report to the provincial bureau of the State Administration of Mine Safety Supervision. In the event of a major accident or above, it may be reported directly to the mine safety supervision department of the provincial people's government and the provincial bureau of the State Mine Safety Supervision Bureau. 3. The mine safety supervision department of the local people's government at or above the county level shall report the accident report level by level after receiving the accident report, and the reporting time at each level shall not exceed 1 hour. Among them, after receiving a report of a major or above-level accident, it shall be reported to the mine safety supervision department of the provincial people's government and the provincial bureau of the State Mine Safety Supervision Bureau within 1 hour; after receiving a report of a major or above-level accident, it shall be reported to the provincial The mine safety supervision department of the people's government and the provincial bureau of the State Mine Safety Supervision Bureau can immediately report to the State Mine Safety Supervision Bureau. 4. After receiving the accident report, the provincial bureau of the State Administration of Mine Safety Supervision shall fill in the accident information within 48 hours of the accident investigation subsystem of the mine safety production integrated information system. 6. [Report accident content]] (I) accident unit overview. It mainly includes the full name of the unit, the form of ownership and affiliation, production capacity, production status, licenses, etc; (II) the time and place of the accident and the situation of the accident site; (III) accident categories. Coal mine accident categories are divided into roof, rock burst, gas, coal dust, mechanical and electrical, transportation, blasting, water damage, fire, and others. Non-coal mine accidents are divided into object attack, vehicle injury, mechanical injury, lifting injury, electric shock, drowning, burning, fire, falling from high places, collapse, roof falling, flooding, blasting, gunpowder explosion, poisoning and suffocation, dam break and others; Brief (IV) of the accident, the number of people entering the well, the number of people safely lifted into the well, the number of casualties, the number of people at risk, the number of people missing and the preliminary estimated direct economic losses; (V) the measures already taken; (VI) other information that should be reported. The contents of the initial report that have not been reported due to the unclear situation shall be renewed in a timely manner after the situation is clear. After the accident report, if there is a new situation (including the progress of accident rescue and rescue), the unit responsible for the accident report shall timely make up or renew the report. Among them, if the number of casualties in the accident changes, it shall make up or renew the report within 24 hours after the change. Accident reports shall be timely, accurate and complete, and no unit or individual may conceal, falsely report or late report. 7. [write-off of accident report]] If a mine causes the death of employees due to natural disasters or suspected of causing illness in the production process, or causes casualties due to illegal mining, it shall be reported in accordance with the production safety accident reporting procedures. After investigation and confirmation by the mine safety supervision and supervision department responsible for leading the investigation or appraisal by the relevant department of the people's government of the place where the accident occurred, if there is one of the following circumstances, the mine safety supervision and supervision department shall put forward a verification proposal and write off in accordance with the prescribed procedures. (I) directly caused by unforeseeable or irresistible natural disasters when the design risk resistance standard is exceeded, the project site is reasonable, and safety precautions and emergency rescue measures are in place; After investigation by the public security organs, the (II) concluded that the cause of the accident was directly or indirectly caused by intentional acts such as sabotage, terrorist acts, poisoning, arson, theft, suicide, etc; (III) mine employees in the production process or in the post, sudden illness (not suffering from external energy accidental release caused by the body trauma) caused by death. 8. [Accident Site Disposal Requirements]] 1. After receiving the accident report, the local people's government and relevant departments shall immediately start the emergency plan and organize the on-site emergency response work. 2. After receiving the accident report, the mine safety supervision and supervision department shall send personnel to the scene of the accident immediately according to the accident level and relevant regulations to assist the relevant local people's government in emergency response. 3. Relevant units and personnel such as mines and rescue teams shall properly protect the scene of the accident and relevant evidence. No unit or individual may damage the scene of the accident or destroy the evidence. If it is necessary to change the situation at the scene of the accident due to emergency rescue, the on-site rescue headquarters shall draw a sketch of the scene and make written records, and properly preserve important traces and material evidence at the scene. After the completion of the emergency rescue, the on-site emergency rescue headquarters shall submit the emergency rescue report and relevant drawings, records and other information to the accident investigation team. 4. The mine shall cooperate with relevant departments to collect and fix relevant evidence including audio-visual, monitoring and control data in a timely manner. Relevant evidence collected by relevant departments shall be submitted to the accident investigation team. 9. [accident investigation adopts graded investigation]] 1. The mine safety supervision and supervision department shall promptly submit it to the people's government at or above the county level for verification after receiving the report information of the mine concealment or false report of the accident involving the death of the person. If the verification is true, it shall be reported in accordance with the prescribed procedures and the accident investigation shall be carried out in accordance with the relevant provisions of these Measures. 2. The investigation and handling of accidents shall adhere to the principles of scientific rigor, law and regulations, seeking truth from facts, and paying attention to actual results, so that the cause of the accident is not found out, the responsible personnel are not dealt with, the rectification measures are not implemented, and the relevant personnel are not educated. 3. Accidents shall be investigated according to grades. (1) Major and below grade coal mine accidents shall be led by the provincial bureau of the State Administration of Mine Safety Supervision to organize the investigation. (2) Major, large, and general non-coal mine accidents shall be directly organized by the provincial people's government, the municipal people's government divided into districts, and the county-level people's government where the accident occurred, and the accident investigation team may also be authorized or entrusted Relevant departments organize accident investigation teams to conduct investigations. (3) For general accidents that do not cause death, the people's government at the county level or the provincial bureau of the State Administration of Mine Safety Supervision may entrust the accident occurrence unit or relevant departments to organize an accident investigation team to conduct investigation. (4) The State Administration of Mine Safety Supervision may, when it deems it necessary, investigate the coal mine accidents investigated by the provincial bureaus of the State Administration of Mine Safety Supervision. The people's government at a higher level may, when it deems it necessary, investigate the non-coal mine accidents that the people's government at a lower level is responsible for investigation. If the accident grade changes due to the change of the number of casualties, it should be investigated by the people's government at a higher level or the mine safety supervision institution in accordance with these measures, the people's government at a higher level or the mine safety supervision institution may reorganize the accident investigation team to investigate. (5) For major coal mine accidents at or below the level, the provincial bureaus of the State Administration of Mine Safety Supervision, relevant local people's governments, coal mine safety supervision departments, coal industry management departments, other relevant departments responsible for the supervision and management of coal mine safety production, public security organs and trade union organizations shall send personnel to form an accident investigation team, and invite local supervisory organs with jurisdiction to intervene. (6) For major accidents in non-coal mines, the provincial people's government and its emergency management department, relevant departments responsible for the supervision and management of safety production in non-coal mines, public security organs, and trade union organizations shall send personnel to form an accident investigation team, and invite the provincial level Supervisory agency intervenes. Provincial bureaus of the State Administration of Mine Safety Supervision participated in the investigation of the accident. (7) For accidents in non-coal mines of larger and lower grades, the relevant local people's governments and their emergency management departments, relevant departments responsible for the supervision and management of production safety in non-coal mines, public security organs and trade union organizations shall send personnel to form an accident investigation team, and invite local supervisory organs to intervene. The provincial bureaus of the State Administration of Mine Safety Supervision sent personnel to participate in and guide the supervision of the accident investigation. 10. [Regulations on Responsibilities of Accident Investigation Team]] 1. The accident investigation team may employ relevant experts to participate in the investigation. Experts should implement a recusal system. In principle, for major accidents, personnel outside the province (region, city) where the accident occurred should be hired as the leader of the expert group, and the proportion of experts outside the province (region, city) where the accident occurred should not be less than 2/3. 2. The members of the accident investigation team shall be honest and fair, scrupulously perform their duties, be honest and self-disciplined, abide by the discipline of accident investigation, and keep the secrets of accident investigation. 3. The accident investigation team shall perform the following duties: (I) ascertain the basic situation of the accident unit; (II) find out the course, reporting process, cause, category, casualties and direct economic losses of the accident; if the accident is concealed, the process of concealment shall be found out; (III) determine the nature of the accident and the responsibility for the accident; put forward suggestions on handling the units and personnel responsible for the accident; (IV) evaluate the emergency handling work; (V) sum up the lessons of the accident and propose preventive and corrective measures; (VI) submit the accident investigation report within the prescribed time limit. 4. The leader of the investigation team for major and below grade coal mine accidents shall be the person in charge of the mine safety supervision organization responsible for the accident investigation (general coal mine accidents may be the person in charge of the internal department of the mine safety supervision organization), and the leader of the investigation team for major and below grade non-coal mine accidents shall be designated by the local people's government responsible for the accident investigation. The leader of the accident investigation team shall preside over the accident investigation and perform the following duties: (I) organize accident investigation team to carry out work; (II) clarify the responsibilities of each group in the accident investigation team and determine the division of labor among the members of the accident investigation team; (III) coordinate and decide important issues in accident investigation; (IV) put forward the concluding comments on the accident investigation; (V) review the materials of the accident suspected of crime, and approve the transfer of relevant materials or copies to relevant departments for handling. When the members of the accident investigation team cannot reach a consensus on the cause, nature and handling suggestions of the accident, the leader of the accident investigation team has the right to put forward concluding opinions. 5. If it is necessary to carry out technical appraisal on major technical problems and important evidence in the accident investigation, the accident investigation team may entrust a unit with corresponding qualifications to carry out technical appraisal. The unit conducting the technical appraisal shall issue a written technical appraisal conclusion and be responsible for the appraisal conclusion. 6. The accident investigation team shall link up with the criminal judicial organ, and if it is found to be suspected of a crime of production safety, the accident investigation team shall promptly transfer the relevant materials to the criminal judicial organ with jurisdiction for handling in accordance with the law. The accident investigation team shall communicate with the supervisory authority and hand over the relevant information.
2023-02-01
30
2023-01
Viewpoint | Intellectual property risk control in procurement
Preamble When the low-end competition is transformed into low-efficiency and low-end homogenization, people gradually realize that relying on knowledge innovation, technological innovation and institutional innovation to obtain high quality and high returns is the inevitable trend of the healthy development of enterprises in the future. On the other hand, knowledge innovation, technological innovation and institutional innovation depend on the standardized intellectual property asset management of enterprises, so as to control import and export risks and control the innovation achievements reasonably and strictly. One of the basic purposes of intellectual property asset management is to provide credible information when disputes occur, but it is difficult to achieve this purpose only by the framework management of intellectual property rights, and fine management is an inevitable requirement to achieve this purpose. This paper briefly describes the scope of intellectual property risk control in the procurement process, in order to attract people's attention to the fine management of intellectual property rights. Common Intellectual Property Risk Control Methods in 1. Procurement 1. Intellectual property security clauses Intellectual property security here does not refer to the subject matter of a security, but stems from article 42 of the United Nations Convention on Contracts for the International Sale of Goods, which stipulates that the goods delivered by the seller must be a third party that cannot raise any rights or claims under industrial or other intellectual property rights. The provision looks more like a promise, which can be an obligation of the seller or a condition for the modification or termination of the contract. 2. Licensing terms of intellectual property rights held by the supplier or obligated to third parties The goods or services supplied by the supplier may involve intellectual property rights that it holds or is obligated to third parties. If not expressly agreed, the buyer's products or services may be involved in disputes in the subsequent implementation. At present, the seller's express license clause is generally agreed in the procurement contract, and the license period and scope of the relevant intellectual property rights are clearly agreed. Problems with 2. traditional framework provisions 1. Single service For example, the main manifestation and content of intellectual property guarantee clauses are the obligations of the seller to the buyer, and the implementation of intellectual property has obvious duality. On the one hand, the traditional framework clauses are difficult to cover the rights and obligations of the buyers and sellers, and are easy to cause disputes in the process of contract performance; on the other hand, the relative ambiguity of the framework clauses cannot clarify the type and list of rights, this makes in-depth information and in-depth cooperation based on intellectual property rights uncertain. 2. Omission of trade secrets The right to trade secrets depends on the standardized and credible management of trade secret assets, and the traditional framework provisions lack the provisions for the right to trade secrets. The omission of trade secrets also means that all parties to the sale and purchase may lack the standardized management of trade secret assets, which makes the relevant trade secrets inappropriate disclosure, and ultimately makes the information that should have become trade secrets lose its trade secret attributes. 3. The loopholes in the framework provisions themselves are large. Although both trademark law and patent law, for example, provide that the buyer can use the legal source rule to defend under certain conditions when an infringement occurs, the legal source defense has relatively strict applicable conditions, and the legal source defense, such as copyright, does not provide for the legal source defense. Even if it can be defended from a legitimate source, the buyer may suffer some losses, some of which may not be claimed against the seller on the basis of traditional framework terms. 4. Relative Ambiguity The relative ambiguity of traditional framework clauses will bring many problems, such as the aforementioned "express license clause", which will enable the buyer to obtain some rights to defend against the seller, but the products or services under the contract may carry intellectual property rights that are obligated to third parties, and one of the obvious characteristics of intellectual property rights is that some intellectual property rights cannot be sub-licensed or can be sub-licensed but lacks sub-licensing agreements or clauses. "Partial rights" means that in some cases, when the infringement occurs, the buyer may not be able to use the contract defense at all, such as the technical scheme formed by the structure of the accessories supplied by the seller in the buyer's products, which may be foreseeable based on the function of the corresponding accessories, or may be provided by the seller exclusively according to the buyer's requirements, there may also be adaptive solutions proposed by buyers and sellers based on given needs, and so on. The dispute over the infringement of intellectual property rights caused by the implementation of the technical scheme may cause a greater dispute on the liability of the buyer and the seller. Refined Management of Intellectual Property Available in 3. Procurement 1. Information Inventory 1) Business Information It includes two aspects of information, one is the supplier's qualification reputation, supplier list, supplier contact information, and qualified supplier list, and the other is procurement plan information, including procurement plan, procurement budget, procurement specifications, procurement quantity, procurement method, interaction information, etc. These two aspects of information for ease of description collectively referred to as procurement information, procurement information belongs to the first-hand information, to meet the three conditions of trade secrets can be used as the object of trade secret protection. The information that is more suitable as a trade secret is in-depth information, which includes the information accumulated through long-term cooperation with the corresponding suppliers, as well as the information deeply integrated through the integration of the accumulated information and procurement information, mainly the supplier evaluation information, such as the supplier's performance ability, reputation, the quality of the supplied products and the agreed quality standards, and the degree of cooperation with the party. Both first-hand information and in-depth information may be used as the object of trade secret protection. In more situations, the first-hand information may be the information that the buyer and the seller have mutual confidentiality obligations, such as the agreed purchase unit price. For the seller, the reason why it is secret is that once it is disclosed, its bargaining space may be reduced; for the buyer, there is also the problem of bargaining space reduction, the difference lies in which party has a higher dominant role in the sale. For example, the seller is a small company and the buyer is a large company, and there is a high probability that the pricing power will be on the side of the large company, that is, the buyer's side. Therefore, the seller may need to supply the buyer at a special preferential price, which is information that the seller is unwilling to disclose and has confidential value. However, for the buyer, it may use the aforementioned special preferential price as a basis and bargaining chip for negotiations with other suppliers, under which the price information is a trade secret for the seller and is expected to be agreed in the procurement contract formed with the buyer. Some of the information in the first-hand information belongs to the buyer's proprietary information, such as procurement plans, procurement budgets, etc., which are of great value to both competitors and potential suppliers, and therefore need to be managed with the help of the buyer's norms to make this information confidential and secret. 2) Patent information Copyright, trademark rights and patent rights are similar, relatively speaking, the type of patent information is relatively more complex, here on the patent information inventory to explain, copyright and trademark rights related information can refer to the inventory of patent information inventory. The first type of information in patent information is information that can be requested directly from suppliers, including a list of patents (patent patent application rights), patent-related license or benefit documents, patent-related burdens (guarantees, securities interests, mortgages, etc.), patented products and services, patent implementation license information, and patent disputes involved. This information can also be collectively referred to as commitment information, such information will also affect the evaluation of the seller's integrity, there is a certain nature of the guarantee. The second type of information in patent information is shallow information, which can be obtained intuitively in a relatively simple way with the help of the first type of information. Generally, the integrity information of ownership can be determined through retrieval and capture according to the first type of information, and the information such as patent list, specific licensed information, inventor group, patent classification number and technical field, invalid patent list and reason that the seller should provide but not provide can be filled in. The third type of information in patent information is quasi-depth information, which is mainly based on, for example, the number of inventors in the inventor group, the change of the inventor based on the chronological order, the number of inventors in each patent, etc. to evaluate the seller's research and development capability, research and development continuity and other evaluation information. The fourth type of information in patent information is depth information, for example, through the analysis of all patents and patent applications of the seller, the evaluation of the seller's technical iteration, etc. There is also a kind of information, the acquisition of which depends on the seller's willingness to cooperate. It mainly involves whether the implementation of patents involved in the sale of products depends on non-free technologies, whether the seller or its affiliated enterprises have more advanced technologies, etc. Although this kind of information can be obtained through patent analysis, it lacks verifiability, and the reference value of this kind of information obtained through analysis is relatively low. 3) Collection of information on the special needs of the buyer The "special needs" are described here by way of example. For example, the purchased object is software, which requires a correct understanding of the nature of the purchased software. The so-called purchase of software is actually not a transfer of ownership of a specific object, but a special license of the software. In other words, when we purchase software, we actually pay a certain license fee for the use of the software. The license will involve the scope of the license. If the buyer purchases a large number of software sets, it is recommended that the buyer sign a separate license contract with the seller when purchasing the software, or draw up license terms in the purchase contract to clarify the scope of the license. If the software needs to be used in an affiliated company, the scope of the license must include the affiliated company. The reason is that the software supplier can capture the usage information of the software through means such as background data and Telnet remote forensics, and then match the authorized customer list. If the corresponding company is not matched in the customer list, the software supplier may initiate infringement charges against the aforementioned affiliated company. Unfortunately, it is limited by the "license scope, the use of affiliated companies has a greater risk of being identified as infringement. Whether the" use "as one of the prerequisites can be evaluated as exhaustion of rights is itself very controversial. Even if it is not finally found to be an infringement or a settlement is made before the court, the loss of time and manpower of the buyer is inevitable. There are similar problems with patents and trademarks, such as a patented technology, which may have more implementation licenses, and each implementation license has, for example, geographical restrictions, at which point the procurement contract for the corresponding patented product requires a special agreement on the exhaustion of rights. 2. Information analysis and verification The content of information analysis has been partially described in the information inventory section above, and some information analysis and verification are further described below: 1) Qualification reputation and performance ability, etc. Qualification reputation and performance ability can be partially determined through the analysis of inventory information, for example, the external wall with composite insulation board, etc. often need to be on-site inspection of the supplier's production capacity in order to relatively accurately determine the seller's performance ability. Again such as asphalt, each batch of asphalt, such as softening point, needle penetration, wax content, ductility, etc. are consistent or basically consistent, used to evaluate product quality and seller reputation. Qualifications and reputation can be evaluated simply through, for example, enterprise search, adjudication document network, and even Baidu search, while in-depth evaluation is a specific evaluation of the seller's behavior during the cooperation period. As mentioned earlier, for example, the ability to perform is often obtained at a greater cost and has the potential value of a trade secret. 2) Comprehensive evaluation of inventory information For example, the supplier list and the degree of matching of the initially identified performance with the procurement plan, budget table, procurement specifications, quantity, delivery time, etc., to evaluate the relative stability and replaceability of suppliers, and the complementarity of suppliers in the list. This will also involve the buyer's trade secrets, unregulated, will also lead to the loss of competitive advantage. 3) Regular assessment and supervision Regular assessment and supervision is the specific verification of the first two information analysis to eliminate inappropriate suppliers. The assessment information obtained can also be used as the object of trade secret protection. The main purpose of regular assessment and supervision is to avoid the risk of information asymmetry, that is, not only to listen to what they say, but also to see how they do, so as to determine the disposal of the relevant suppliers. 4) Information integration Through the above three items, the basic data and disposal method (A) required for a smaller range of PDCA(P-plan, D-execution, C- inspection, A- processing) cycle can be met, but it is not enough. For example, the evaluation methods required in the inspection process, such as the quality standards of products supplied by different suppliers, the return and exchange process, etc., often need to be matched with the basic data, on the one hand, the basic data can be changed positively through communication with suppliers, and on the other hand, quality standards can be adjusted, for example. Similarly, quality standards are directly related to purchase plans, budget tables, etc. As buyers cannot take it for granted to use the price of, for example, 50 yuan to purchase goods in 100 yuan, adjusting quality standards is sometimes the right choice. Therefore, information integration is more represented here as information matching. Information integration will produce intellectual property conflicts more often, because products loaded with intellectual property rights often have higher unit prices, but they may not be replaced by risk-free products. Information integration can include more in-depth information analysis, such as patent infringement risk analysis, substitutability analysis, etc. As the buyer may expect to use a lower purchase unit price to obtain a product of comparable quality, there may be a risk that the subjective element of "do not know and should not know" in the "legitimate source" defense, the outrageous substitute product with a low unit price can directly deny the goodwill of the accused infringing party, and it is difficult to obtain support in the legitimate source defense, there may even be punitive damages for obvious "bad faith. Also because the buyer knew or should have known that the product purchased was an infringing product or a counterfeit product, the alleged infringer, as the buyer, would not be able to claim the full loss against the seller because of the existence of an intellectual property security clause or agreement with the seller, but would be more likely to be at risk. Therefore, the integration or matching of information to give the party an advantageous position can also effectively avoid the risk of infringement claims or damages. 3. System The system is a necessary condition for the standardized management of intellectual property rights, but also a necessary condition for the fine management of intellectual property rights, for the buyer to trade secrets, for example, should at least establish the procurement information confidentiality management process, procurement information confidentiality management system, as well as the appropriate procurement information confidentiality agreement. As a component of fine management, for example, the procurement information confidentiality management process at least covers the procurement plan confidentiality process, procurement price confidentiality process, supplier information confidentiality process, etc. Conclusion In view of the fine management of intellectual property rights and the management object should have a good adaptability, through the PDCA cycle of continuous correction, therefore, the specific way of fine management of intellectual property rights should be adapted to the specific situation of enterprises, need to fully investigate the relevant enterprises, and need a relatively long time of continuous adjustment to operate reliably. This paper is an exemplary description of the enterprise intellectual property standard management system, if the intellectual property litigation is the terminal of the operation of the intellectual property, then the enterprise intellectual property standard management system is the background of the operation of the intellectual property, a single fine.
2023-01-30
30
2023-01
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. As a "construction enterprise" engaged in production and business activities in the field of construction engineering, it is necessary to pay special attention to avoid the risk of administrative penalties in the industry, especially in the qualification of construction enterprises. 1 To obtain the qualification of construction enterprise by deception, bribery and other improper means. 2 The construction unit exceeds the qualification level of the unit to undertake the project. 3 The construction unit transfers, lends the qualification certificate or otherwise allows others to contract the project in the name of the enterprise. 4 The construction unit subcontracts or illegally subcontracts the contracted project. Five Construction Enterprises Transfer Safety Production License
2023-01-30
12
2023-01
Viewpoint | New residential project quality warranty period "adjustment action"!
The quality of residential projects is related to the vital interests of the people and is the top priority of the project quality work. For a long time, the quality warranty period of residential projects has been implemented in accordance with the relevant provisions of the minimum warranty period of the regulations on the quality management of construction projects, the measures for the quality warranty of housing construction projects and the measures for the management of commercial housing sales issued 20 years ago. These minimum warranty periods are based on the material properties, construction methods, construction processes and management level conditions at that time, and the documents were issued earlier and have not been adjusted. With the wide application of new technologies, new equipment, new materials and new processes, the survey and design level, material performance, process and quality assurance of new residential projects have been greatly improved, and it is no longer appropriate to implement the existing regulations. On March 15, 2022, the "Residential Project Specification" publicly solicited by the Ministry of Housing and Construction appropriately increased the design working life of relevant parts of residential projects and included them in mandatory standards, providing a reference and basis for appropriately extending the quality warranty period of new residential projects. On June 8, 2022, the Department of Housing and Urban-Rural Development of Shandong Province issued the "Guiding Opinions on Adjusting the Quality Warranty Period of New Residential Projects" (Lu Jianzhi An Zi [2022] No. 4) (hereinafter referred to as the "Guiding Opinions"). The "Guiding Opinions" include five parts: scope of application, adjustment method, adjustment content, warranty responsibility, and safeguard measures, combined with the current development of construction technology, construction technology and material performance in Shandong Province, guiding Opinions on Adjusting Quality Warranty Period for New Residential Construction 1. scope of application The "Guiding Opinions" are applicable to newly-built commercial housing and urban affordable housing projects that have newly acquired state-owned land use rights in Shandong Province. 2. clear adjustment method For newly-built commercial housing (including urban affordable housing projects), the quality warranty period is proposed by the housing and urban-rural construction department in the housing and urban-rural construction field project construction conditions opinions, and is clearly limited in the performance or supervision agreement signed by the real estate development unit. For newly-built urban affordable housing projects, the quality warranty period shall be included in the construction bidding documents and the Construction Contract by the construction (agent construction) unit. 3. adjustment period Under normal conditions of use, the minimum warranty period of the following parts of the new residential project shall be adjusted as follows: (I) roof waterproofing works, waterproof requirements for toilets, rooms and exterior wall surface leakage prevention, adjusted to 10 years; The (II) heating and cooling system is adjusted to 5 heating periods and cooling periods; (III) the installation of electrical pipelines, water supply and drainage pipes and equipment, the concealed part is adjusted to 10 years, and the non-concealed part is adjusted to 5 years. The scope and duration of quality warranty for other parts shall be in accordance with the current regulations. For the parts that have passed the maintenance within the warranty period, the real estate development (construction) unit and the construction unit, the real estate development (construction) unit and the property owner can re-negotiate the warranty period respectively. 4. clear warranty responsibility 1. Responsibility as a real estate development unit According to the regulations on the sale of Commercial Housing in Shandong Province, the real estate development unit shall bear the responsibility for the quality warranty of the commercial housing to the buyer, and shall perform the warranty obligation and bear the liability for the loss caused by the quality problems within the warranty period. The starting date of the commercial housing quality warranty period shall be calculated from the date of delivery. The warranty period and start date of the urban affordable housing project completed and handed over as a whole by the agent construction unit shall be agreed upon by both parties in the entrusted construction contract. 2. Responsibilities as construction unit According to the Regulations on the Quality Management of Construction Projects, the construction unit shall bear the responsibility for the quality warranty of the construction project to the real estate development (construction) unit. If quality problems occur within the warranty scope and warranty period, it shall perform the warranty obligation and bear the liability for compensation for the losses caused. The starting date of the construction project quality warranty period shall be calculated from the date of acceptance of the project. 5. safeguard measures (I) compaction quality warranty responsibility. Real estate development (construction) units shall carry out development and operation activities in accordance with the construction conditions and opinions put forward by the housing and urban-rural construction department. The quality warranty period, warranty scope, and warranty responsibilities can be clearly stated in the construction bidding (contracting) documents, and in the "Construction Project Construction Contract" Make an agreement and specify it in the "New Commercial Housing Sales Contract" and the "Commercial Housing Quality Guarantee. (II) standardize the quality assurance management. Regarding the reserve ratio, duration, use and return method of the project quality deposit, it shall be strictly implemented in accordance with the provisions of the Ministry of Housing and Urban-Rural Development and the Ministry of Finance "Notice on Printing and Distributing the Management Measures for Construction Project Quality Deposit. The total margin reserve ratio shall not be higher than 3% of the total settlement amount of the project price, and the maximum amount shall not exceed 2 years. If the performance bond has been paid or other methods such as project quality assurance guarantee and project quality insurance have been adopted, no quality bond shall be reserved. (III) and improve the incentive and guarantee mechanism. Encourage real estate development units to combine the expectations of the masses and market demand, and agree on a longer warranty period for the quality of commercial housing. For those beyond the warranty period stipulated in this opinion, priority will be given to recommend under the same conditions in the evaluation activities such as Luban Award, National Excellence Project Award, Guangsha Award and Taishan Cup Award. Encourage real estate development (construction) units to introduce insurance for potential defects in project quality, share risks through market mechanisms, broaden quality warranty channels, and further enhance residential quality reputation and market competitiveness. (IV) strengthen guidance and supervision services. Guide and urge the real estate development (construction), design, construction, and supervision units to implement the quality warranty period requirements into project planning, design selection, and construction acceptance. In the supervision of key links such as construction drawing review, project quality supervision, and completion acceptance filing, strengthen the process guidance, follow-up inspection, and supervision of the implementation of this guidance. If it is found that the real estate development (construction) unit has not implemented the provisions of these opinions, it shall be ordered to make corrections according to law, and those that have been completed and accepted shall be ordered to reorganize the completion acceptance according to law. If it is found that the real estate development (construction) and construction units fail to perform or delay the performance of quality warranty obligations without reason, they shall be ordered to make corrections, deal with penalties and be included in integrity management in accordance with the law. The promulgation of this "Guiding Opinions" puts forward higher requirements for construction units and construction units in terms of project quality and quality warranty obligations, which undoubtedly provides a favorable guarantee for the adjustment of the quality warranty period of new residential projects in Shandong Province.
2023-01-12
04
2023-01
Recently, in order to strengthen the management of project payment guarantee in the field of construction engineering in Shandong Province, standardize the payment guarantee behavior of construction units, safeguard the legitimate rights and interests of all parties in the project construction, and effectively curb the arrears of project payment and the wage behavior of migrant workers, the Department of housing and urban rural development of Shandong Province jointly issued the notice on printing and distributing the implementation measures of project payment guarantee in the field of engineering construction in Shandong Province (Trial Implementation) (hereinafter referred to as the measures), effective January 1, 2023! Let's take a look at the new policy of Shandong Province on the guarantee measures for the payment of project funds involved in the field of engineering construction! Guaranteed measures for payment of 1. works 1. The concept of project payment guarantee. The guarantee of payment of the project funds refers to the guarantee issued by the guarantor to the construction unit to the contractor to ensure the timely and full payment of the project funds in order to ensure that the construction unit fulfills the obligation of payment of the project funds stipulated in the construction contract or the general contract of the project. 2. The object of the project payment guarantee. Contractors include general construction contractors, general engineering contractors and professional contractors that directly sign construction or general engineering contracts with construction units. 3. Scope of Project Payment Guarantee The scope of the project payment guarantee includes the project advance payment, progress payment, project settlement balance, including labor costs such as migrant workers' wages, and does not include the project quality deposit. 4. Scope of implementation of project payment guarantee measures For construction projects within the administrative area of Shandong Province with a total contract price (provisional valuation) of more than 3 million yuan and a contract period of more than 3 months, the construction unit shall provide the contractor with a guarantee for the payment of the project funds. Encourage other construction projects to refer to the implementation. Government investment projects can be entrusted to the construction unit, the total contract price of 0.2 billion yuan, can be issued by the financial department of the project funds implementation certificate instead of the project payment guarantee letter. How the 2. provides guarantee measures for the payment of project funds. 1. The construction unit has the right to choose independently. The construction unit independently chooses the guarantor, voluntarily chooses the bank guarantee or the guarantee insurance to provide the guarantee in any form, or it can be replaced by the way of co-management of funds, and the contracting unit may not refuse. If a real estate development enterprise chooses the method of co-management of funds to replace the project payment guarantee, after the project starts to presale, it can use the presale funds in the supervision account to replace the co-management funds, and the real estate development enterprise, the contractor, the presale fund supervision department, and the bank that opened the account shall jointly sign the fund co-management agreement. Or by the opening bank relying on the supervision of the funds in the supervision account, to the contractor to issue an irrevocable bank guarantee to replace the original project payment guarantee. The contents of the fund co-management agreement, bank guarantee or guarantee insurance shall be standardized and legal, and may be in the form of an annex or set up by itself. The fund co-management agreement shall be confirmed and sealed by the construction unit, the contractor and the relevant party, the bank guarantee shall be an irrevocable independent guarantee, and the guarantee insurance clause shall be approved or filed by the insurance supervision and administration department. The bank or insurance institution that provides the project payment guarantee shall be a branch or a bank above the branch that is legally registered in Shandong Province and has obtained the written authorization of the head office to carry out the project guarantee business, or an insurance company that has obtained the qualification license to carry out the construction project guarantee insurance business and is legally registered in Shandong Province, and an insurance branch authorized by the head office. Banks or insurance institutions that provide guarantees for the payment of project funds shall implement a public announcement system, which shall be publicized and announced by the human resources and social security department, the housing and urban-rural construction department, and the banking and insurance supervision department. 2. The terms of the contract should be guaranteed. The project contract shall specify the form, amount and time of payment of the project payment guarantee, and the construction unit shall provide the project payment guarantee to the contractor in accordance with the contract. 3. The duration of the guarantee must be clear The start time of the validity period of the project payment guarantee period shall be the date of the signing of the project contract, and the expiration time of the validity period shall be 30 to 180 days after the completion and settlement of the project settlement. If the project contract cannot continue to be performed due to force majeure, the termination of the contract confirmed by the two parties or the effective judgment document, the construction unit may cancel or cancel the payment guarantee for the project after paying the project payment. 4. The amount of the guarantee is required. Before the completion and settlement of the project, the amount of the project payment guarantee is the amount of the single node project payment agreed in the project contract, and the maximum value is taken when the payment amount of different nodes is inconsistent. The minimum guarantee amount is calculated by progressive method. If the contract price is less than 10 million yuan, the guarantee amount shall not be less than 10% of the contract price. If the contract price is more than 10 million yuan and less than 0.1 billion yuan, the excess of 10 million yuan shall not be less than 5%. If the construction unit requires the contractor to provide a performance guarantee, the amount of the project payment guarantee shall not be less than the amount of the performance guarantee. When the project payment node is determined according to the image progress, the amount of project payment for a single node can be estimated according to the construction area multiplied by the average construction and safety cost of similar construction projects in the local area. 5. Requirements for change of guarantee period and amount Before the expiration of the validity period of the guarantee, if the amount of the guarantee does not conform to the provisions of the Measures due to the claim for the amount of the guarantee, the construction unit shall, within 30 days after the completion of the claim, make up the project payment guarantee in accordance with the provisions of these Measures; If the guarantee period does not meet the requirements due to project delay, settlement or payment delay, the construction unit shall continue to provide the project payment guarantee in accordance with the provisions of these Measures 30 days before the deadline of the original guarantee validity period. If the project cost fluctuates by more than 10% of the contract price due to design changes, construction process changes, material price changes, etc., the project payment guarantee shall be adjusted accordingly. Prohibitive provisions of 3. payment guarantee 1. It is strictly prohibited to pay for the project by non-cash means such as commercial acceptance bills. If a real estate development enterprise uses the presale funds in the supervision account instead of the co-management funds, it shall pay the project funds in strict accordance with the presale funds supervision method, and shall not use non-cash methods such as commercial acceptance bills to pay the project funds. If the real estate development enterprise has not settled the project payment when applying for the termination of the supervision of commercial housing presale funds, it shall continue to provide the guarantee for the payment of the project funds, and the party may lift the supervision of the presale funds. 2. Prohibitive provisions of the subject of security (1) The same bank or insurance institution shall not provide both a payment guarantee for the construction unit and a performance guarantee for the contractor on the same project at the same time. (2) If the construction unit provides a counter-guarantee, the counter-guarantor shall not be the contractor of the construction project or its affiliated enterprises. (3) The contractor may not appoint a specific guarantor and the security interest may not be transferred. The money obtained by the contractor as a result of the guarantee claim shall be used as a priority to pay the wages of migrant workers. Implementation Procedure of 4. Project Payment Guarantee 1. Provision time of new construction If the advance payment provided by the construction unit exceeds 10% (inclusive) of the contract price, it shall provide the contractor with a guarantee for the payment of the project funds within 30 days after obtaining the construction permit or the approval of the commencement report. If the construction unit fails to provide an advance payment or the advance payment is less than 10% of the contract price, it shall provide the contractor with a guarantee for the payment of the project funds after obtaining the construction permit or the approval of the commencement report and before the contractor enters the site. 2. Platform registration regulations After receiving the project payment guarantee certificate provided by the construction unit, the contractor shall upload the "migrant worker wage payment supervision platform" (hereinafter referred to as the "platform") within 7 days, and accurately fill in the project payment node and other information in accordance with the payment cycle agreed in the project contract. After the payment node information is submitted, it shall not be changed by itself. If it is really necessary to change due to project delay and other reasons, an application for change shall be submitted and the change can only be made after being examined and confirmed by the local competent department of the industry. The construction unit may entrust the contractor to upload the "certificate of fund source" to the platform. 3. Receipt confirmation registration After receiving the project progress payment, the contractor shall confirm the receipt on the platform, fill in the collection amount and upload the collection voucher. After the completion of the project settlement, the contractor shall upload the settlement documents and confirm the completion of the settlement. 4. Platform early warning measures According to the information of the project payment node, if the contractor fails to confirm the receipt of the project payment and upload the receipt voucher 30 days overdue, the platform will give an early warning. Local industry authorities shall investigate and deal with the warning information. The guarantor may supervise the performance of the construction contract by the construction unit and the contractor through the supervision platform. 5. Release of security measures After the completion of the project settlement, the project payment is settled, and the contractor issues the project payment settlement certificate, the project payment guarantee is terminated. Where a guarantee for the payment of the project funds is submitted in the form of a bank guarantee or guarantee insurance, the construction unit or the contracting unit shall return the guarantee certificate for the payment of the project funds to the guarantor. 6. Claims procedural measures (1) If the contractor completes the project construction task according to the contract, and the construction unit fails to pay the project payment according to the contract, or the construction unit fails to allocate the labor fee to the special account for migrant workers' wages in full and on time, the contractor may issue a written claim letter and corresponding supporting materials, requiring the guarantor to perform the obligation of compensation. When the contractor intends to claim compensation from the guarantor, it shall inform the construction unit in writing in advance, and the construction unit shall actively cooperate with the contractor to do a good job of the claim. (2) If the construction unit fails to pay the wages of migrant workers in full within the time limit, and the contractor claims for the wages of migrant workers, the bank or insurance institution providing the guarantee shall, within 3 working days after receiving the claim letter, pay the compensation fee to the designated special account for the wages of migrant workers. (3) Within 7 days after the completion of the claim, the contractor shall upload the amount of compensation, the date of payment and other information to the platform and inform the construction unit in writing. After the completion of the contractor's claim, the construction unit shall provide the project payment guarantee in full and in a timely manner in accordance with these Measures, and the contractor shall upload the supplementary guarantee voucher to the platform. To sum up, Shandong Province has issued the "measures", which provides favorable guarantee measures for the payment guarantee of construction funds, which not only standardizes the behavior of construction units to pay project funds, but also protects the legitimate rights and interests of all parties in the project construction, effectively curbs the arrears of project funds and migrant workers' wages, avoids the frequent occurrence of disputes over project payment, and reduces the problem of migrant workers' petitions for wages. It is conducive to maintaining the good development of the field of engineering construction in Shandong Province.
2023-01-04
27
2022-12
Viewpoint. Policy interpretation: "Data 20" of the three power-sharing framework.
Recently, the "Opinions of the Central Committee of the Communist Party of China and the State Council on Building a Data Infrastructure System to Better Play the Role of Data Elements" (hereinafter referred to as the "Opinions") was issued. The Opinions put forward six major aspects, a total of 20 policy initiatives to build a data-based system, also known as "data 20". Among them, innovative measures such as the "separation of three rights" of data property rights, the construction of a multi-level data trading market system, and the promotion of public data sharing and circulation have attracted great attention from all walks of life. In fact, as early as June 22 this year, the "Opinions on Building a Data Infrastructure System to Better Play the Role of Data Elements" reviewed and approved at the 26th meeting of the Central Committee for Comprehensively Deepening Reform proposed "to establish a data property rights system and promote public Data, enterprise data, and personal data are classified and authorized to use, and a separate property rights operation mechanism such as data resource holding rights, data processing use rights, and data product management rights is established, improve the data element rights and interests protection system". The framework of "separation of powers" corresponds to the different interests of individuals, enterprises, society, the state and other relevant subjects on data. This innovative concept of data property rights weakens ownership, emphasizes the right to use, and focuses on the circulation of data use rights. It also puts forward new requirements for the operation of the data market and data transactions, especially for data service providers and related third-party service agencies. The service content also poses new challenges. 1. data resource holding rights When various issues involving data are raised, the main thinking of legal researchers generally begins with data ownership. The use of traditional property rights similar to the design method has also become a kind of taken for granted scheme-as of course for the ownership design of intellectual achievements, the use of property rights model and finally formed the intellectual property system. However, this idea has more obstacles in the context of data. While people are used to comparing data to oil or gold, unlike both, the system of data value is based on large-scale convergence and has incremental marginal returns, while individual or fragmented data has a rather limited capacity for wealth creation. Therefore, the Opinion does not use the concept of "ownership", but rather a "right to hold". The holding of data resources is related to different subjects. In terms of broad categories, data can be divided into public data, corporate data and personal data, and accordingly, data holders should include governments, businesses and individuals. For public data, it should generally be held and controlled by the management department; for enterprise data collected and processed by enterprises in production and business activities that do not involve personal information and public interests, these market entities have the right to hold, control and benefit data; For data carrying personal information, it is held by individuals, or collected, held and used by specific data processors within the scope of personal authorization. Right to use 2. data processing In national standards or industry guidelines, data processing refers to the activities of filtering, classifying, arranging, encrypting, and labeling data. The establishment of this right is mainly to protect the labor interests of data processors such as data collection and processing, recognize and protect the data-related rights obtained in accordance with legal provisions or contractual agreements, and fully protect the rights of data processors to use data and obtain benefits. Of course, the premise of enjoying this right is that the source of the data is legal and compliant. For illegally obtained data, the data processor not only has no right to process and use, but may also constitute tampering, destruction, disclosure of data or illegal use of data. According to some scholars, the right to use data processing belongs to a concept similar to usufruct, including control, development, licensing, transfer and other rights. However, the exercise of these rights will be limited by other rights such as the right to hold data. For example, when personal data is used for automated decision-making, unreasonable differential treatment should be avoided, and when information push and commercial marketing are carried out, options or convenient rejection methods that are not specific to personal characteristics should be provided; data processors should take encryption, de-identification, anonymization and other technical measures and other necessary measures to ensure data security. In the event of a data security incident, disposal measures should be taken immediately, inform users in a timely manner and report to the relevant competent authorities; data processing activities including processing and use shall not exceed the scope of legal authorization or contractual agreement. 3. data product management right The right to operate data products further reflects the attributes of data as an object of transaction and protects the market interests of data competitors. Its main manifestation is the restriction of third-party competition by the subject of data rights. The main content is to prevent competitors in the same industry from improperly using their data products to obtain benefits. In the era of big data, data products can bring considerable business benefits and market competitive advantages to enterprises, and the right to operate data products enables data processors to protect their data inputs (including data acquisition and processing). At present, China's data competition justice has basically established the principle of "triple authorization", that is, when an enterprise wants to obtain the data of other enterprises, it needs to obtain the authorization of users and data enterprises at the same time, and also needs the consent and authorization of users to the data holding enterprises. While effectively protecting the rights of personal data, this framework relies too much on the "informed consent" of users, which is not conducive to fostering a shared and fair competition data element market. The data product management right in the data 20 reflects the principle of "who invests, who contributes, who benefits", and promotes the reasonable tilt of data element income to data value and use value creators. At the same time, in the secondary distribution, three distribution stage, focus on the public interest and relatively vulnerable groups, to prevent and regulate the disorderly expansion of capital in the data field to form a market monopoly and other types of risk challenges.
2022-12-27
27
2022-12
Point of View | Read "Shandong Province Mineral Resources Master Plan (2021-2025)"
The Department of natural resources of Shandong Province, the development and Reform Commission of Shandong Province, the Department of industry and information technology of Shandong Province, the Department of finance of Shandong Province, the Department of ecological environment of Shandong Province, the Department of water resources of Shandong Province, the Department of emergency management of Shandong Province and the Energy Bureau of Shandong Province jointly issued the master plan of mineral resources of Shandong Province (2021-2025) (hereinafter referred to as the rules). The "Plan" is an important means to strengthen and improve the macro-management of mineral resources in Shandong Province, an important basis for approving and supervising the exploration, development and protection of mineral resources in accordance with the law, and an important follow for mineral resources management. Related industry planning involving mineral resources development activities shall be linked with this Plan. 1. guiding ideology Guided by Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, fully implement the spirit of the 19th National Congress of the Communist Party of China and the 19th Plenary Sessions, thoroughly implement Xi Jinping's ecological civilization thought and overall national security concept, and earnestly implement the important instructions of General Secretary Jinping on Shandong Work Requirements, in accordance with the spirit of the 12th Provincial Party Congress and the major decisions and deployments of the Provincial Party Committee and the Provincial Government, firmly anchor "walking ahead and opening new bureau", serving the ecological protection and high-quality development of the Yellow River Basin and the regional development strategy of "one group, two hearts and three circles" in Shandong Province, based on the new development stage, implementing the new development concept, integrating into the new development pattern, aiming at ensuring the needs of economic and social development, taking the green and high-quality development of mining industry as the theme, taking the protection and rational utilization of mineral resources as the main line, and taking reform and innovation as the driving force, Deepen the reform of mineral resources management reform, comprehensively improve the level of intensive and economical development and utilization of resources, scientifically regulate and control the supply of mineral resources, ensure the safety of energy resources, and promote the transformation of mining to large-scale, intensive, intelligent, and green, and form higher-quality, more efficient, and more sustainable minerals The new pattern of resource protection and rational utilization serves the high-quality economic and social development of Shandong Province. 2. basic principles -- Resource guarantee and safe supply. -- Ecological priority and green development. -- Space control and layout optimization. -- Market allocation and fair competition. -- Overall planning and win-win cooperation. 3. planning objectives (I) 2025 targets 1. The province's geological work service support areas have been newly expanded. Positive progress has been made in the geological survey of important mineralization areas (belts), important ecological function areas, key river basins, offshore waters and major engineering areas; the geological survey of cities in downtown areas with districts has been basically completed. 2. New breakthroughs have been made in mineral resources exploration. Implement a new round of prospecting breakthrough strategic actions, strengthen the investigation, evaluation and exploration of strategic minerals, and strive to discover and evaluate no less than 10 large and medium-sized mineral areas. 3. The total amount of mineral resources development management to achieve new goals. The province's total annual mineral development is controlled within 1 billion tons, and the number of solid mineral mining rights is expected to be about 1000. 4. The pattern of mineral resources development and protection has reached a new height. By 2025, the proportion of large and medium-sized mines with solid minerals will not be less than 65%. The layout of mineral resources development with priority protection, reasonable functions and strong control has basically taken shape. 5. The conservation, intensive and comprehensive utilization of mineral resources has reached a new level. The scientific and technological innovation ability of mineral resources development and utilization has been significantly enhanced, advanced and applicable technologies have been widely used, and the comprehensive utilization level of associated minerals, waste rocks and tailings has been further improved. New achievements have been made in the green and intelligent development of mining industry. All new mines are planned and constructed in accordance with the requirements of green mine construction; production mines are accelerated to upgrade and gradually meet the standards for green mine construction. Pilot projects for the intelligent construction of large and medium-sized mines have been launched, and the level of intelligence in the development and utilization of mineral resources has been gradually improved. 7, mineral resources management system and governance capacity to achieve new improvement. The system of transferring mining rights has been effectively improved, the reform of "release, management and service" has been promoted, an information system for the protection and supervision of mineral resources has been established, and the level of informatization of mineral resources management has been further improved. (II) Vision 2035 By 2035, the allocation of mineral resources will be more reasonable, the order of development and utilization of mineral resources will be more standardized, the market system of mining rights will be more perfect, the structural layout of mineral resources will be more reasonable, the supply capacity of mineral resources will be greatly improved, the utilization efficiency will be greatly improved, the supply of scarce resources will be increasingly stable, the strategic value of advantageous resources will be brought into full play, and green exploration and mining will be basically popularized, The development will coexist in harmony with natural ecology. 4. Optimizing the Protection Pattern of Mineral Resources Exploration and Development 1. Designation of "4 resource areas" Including the Ludong gold and crystalline graphite resource area, the central and southern Shandong iron-based building materials non-metallic resource area, the southwest Shandong coal resource area and the Yellow River Basin (Shandong section) oil and gas geothermal resource area. 2. Identify "5 functional areas" There are 4 planned energy resource bases, 10 national planned mining areas, 4 strategic mineral resource protection areas, 15 key exploration areas, and 81 key development zones. 3. Implementation of "six major projects". Planning and implementation of Jiaodong world-class gold industry base construction project, basic public welfare geological survey project, mineral resources survey evaluation and exploration project, mineral resources conservation and utilization and protection project, green mine construction project, intelligent mine construction project. Exploitation and Protection of Mineral Resources in 5. 1. Development, utilization and protection direction Implement the management and control requirements of energy resource bases, national planning mining areas and key mining areas, and promote the optimal allocation of resources. Strengthen the reserve and protection of coal, iron, gold, copper and other mineral resources, as well as the management of the overlaying of strategic mineral resources. Comprehensively promote the "net ore" transfer of sand and gravel minerals, and actively promote the "net ore" transfer of other minerals. 2. Development and utilization of intensity regulation We will implement the management of the total amount of mineral resources exploitation, rationally regulate and control the intensity of development, and stabilize the supply of major mineral resources. 3. Development and utilization structure Optimize the scale and structure of existing mines, and strive to increase the proportion of large and medium-sized solid mineral mines in the province to more than 65% by the end of the planning period. The scale of newly-built coal, gold, iron, stone for construction and other mines must be medium-sized or above. Further optimize the product and technology structure. 4. Transfer-in conditions for new mines New mining rights must conform to the planning block settings. Among them, new open-pit mining projects such as sand and gravel minerals need to be located in the key mining areas designated by the provincial mineral resources master plan. Strictly control the minimum mining scale of new mines. The new batch of gypsum mines will continue to be stopped during the planning period. The new mining right strictly implements the control requirements of the three control lines of land and space. Strictly restrict the transfer of mining rights agreements. Support the integration of resources. 5. Conservation and protection of mineral resources Strengthen the conservation and intensive and comprehensive utilization of mineral resources, strengthen the evaluation of the "three rates" indicators, and implement the main responsibility of enterprises for conservation and comprehensive and efficient utilization of mineral resources. Encourage scientific and technological innovation and promote advanced and applicable technologies. 6. Mining planning block There are 14 new development planning blocks with an area of 13.54 square kilometers, mainly gold, iron, titanium, graphite and fluorite lamps. 7. Standardize the development and utilization of sand and gravel resources Strict mining rights are put in, the production scale of stone mines for new buildings is not less than 1 million tons/year, and the service life is not less than 10 years. The implementation of the "overall transfer, overall development" model, and promote large-scale mining. Explore the end effect control, co-ordinate the development and utilization of sand and gravel resources and ecological restoration. Support the coordinated development of industries. 8. Standardize the development and utilization of geothermal resources Optimize the layout of geothermal resources development and rationally delineate development planning blocks. Coordinate the development of geothermal resources and groundwater protection, explore and solve the contradiction between geothermal development and water resources protection in groundwater prohibited areas, and promote the coordinated development of geothermal resources and oil and gas resources. 6. promotes green development of mining industry 1. Implementation of green exploration The concept of green development runs through the whole process of exploration activities. 2. Building green mines Implement the national, provincial, municipal, and four-level joint venture, enterprise owner construction, third-party evaluation, and social supervision work system, and improve incentive policies. By 2025, the green mining pattern in Shandong Province will basically take shape, and the four approved by the Ministry of Natural Resources The construction of green mining development demonstration zones has been completed, and green mine construction projects continue to be at the forefront of the country. 3. Build a smart mine Focus on gold mines and coal mines with construction conditions, promote digital, information, and intelligent construction, build a number of intelligent mines, and realize safe, green, and efficient intelligent management of mines. 4. Strengthen the ecological protection and restoration of mining areas Strengthen source control, promote the rational development of mineral resources and effective protection of the ecological environment. Urge mining enterprises to implement the main responsibility, strictly implement the mine geological environment protection and land reclamation program. 7. planning implementation and management. Including strengthening organizational leadership, policy support, planning implementation, implementation evaluation, talent science and technology support, publicity and guidance, etc., specific safeguard measures are proposed to ensure the effective implementation of the "Plan.
2022-12-27
26
2022-12
Viewpoint | Can a husband-and-wife company be recognized as a one-person company?
Relevant cases of the Supreme Court in recent years: 1. Supreme People's Court heard the "Xiong Mou, Shen Mou application executor execution objection lawsuit retrial case" Highlights of the referee: The core issue is whether Qingmanrui is a one-person limited liability company. All the equity of Qingmanrui Company is essentially derived from the same property right, and is jointly enjoyed and controlled by one ownership. The equity subject has the consistency of interests and the unity of substance; at the same time, according to the provisions of Article 63 of the Company Law, it is considered that the assets of the company are Xiong and Shen, and the two parties are husband and wife, and the interests are highly consistent, and it is difficult to form effective internal supervision, the burden of proof that the company's property is independent of the shareholders themselves is allocated to the two shareholders, Xiong and Shen. The Supreme Court considers that there is a high degree of similarity between Qingmanrui and one-person limited liability companies in terms of subject composition and normative application. The Supreme People's Court upheld the second-instance judgment, that is, "Xiong and Shen are jointly and severally liable for the debts of Qingmanrui Company" 2. Supreme People's Court heard the "Taian Daiyue District Xindilong Drilling Service Center, Jia Juan Execution Objection Case Retrial Review and Trial Supervision" Highlights of the referee: As a limited liability company, Hongnuo Air Conditioning Company still lacks legal basis for defining it as a "one-person limited liability company", even if it is established by shareholders Jia Juan and Liang Ruolin with the joint property of husband and wife as described by the New Earth Dragon Well Center. In this regard, the original trial found that the claim of the Xindilong Drilling Center did not conform to Article 20 of the "Provisions on Changes and Additional Parties" and was not improper. It ruled that the retrial application of Xindilong Drilling Service Center in Daiyue District of Tai'an City was rejected. 3. case of dispute over construction contract between Xi'an Tianhong Electric Co., Ltd. and Qinghai Liteng New Energy Investment Co., Ltd. tried by the Supreme People's Court of China" Highlights of the referee: Regarding the issue of whether Li Ping should bear joint and several liability for repayment, the court believes that, in combination with the facts found out in the original trial, Li Ping and his wife often contributed capital to Qing. The shareholders of the company are not one and all have fully fulfilled their capital contribution obligations. Tianhong Company also has no evidence to prove that Li Ping's property is mixed with that of Li Ping. Tianhong Company claims to investigate Li Ping's joint and several liability according to the relevant legal provisions of one company, the legal basis is insufficient; the first-instance judgment found that Li Ping was not liable for joint and several settlement, and there was no improper, and the Court upheld it. Lawyer's view: According to Article 57, paragraph 2, of the Company Law, "A one-person limited liability company referred to in this Law refers to a limited liability company with only one natural person shareholder or one legal person shareholder." According to the literal interpretation of this provision, the basis for determining a one-person limited liability company is the number of shareholders, not the source of the shareholders' capital contribution, and not the independent judgment of whether the company is essentially a one-person limited liability company based on whether the property of the shareholders is independent. In the absence of clear provisions in the law and judicial interpretation, the practice of easily identifying husband and wife companies as one-person companies in judicial practice lacks legal basis. At the same time, China's law does not prohibit husband and wife or other people who have a joint property relationship to contribute to the same limited company, the husband and wife company as a substantial one-person company may exist excessive interpretation. As for whether the husband-and-wife company should bear joint and several liability for the company's debts with the personal property of the shareholders, whether the husband-and-wife company is a substantial one-person company should not be examined. According to the provisions of Article 20 of the Company Law, it should be examined whether the shareholders of the husband-and-wife company and the company's property are mixed, and whether it is in line with the elements of denial of legal personality, so as to judge the shareholders to bear joint and several liability for the company debts.
2022-12-26
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
