Viewpoint... Compliance risk management and control of state-owned enterprises and its countermeasure analysis.

With the rapid development of economy, all kinds of enterprises are constantly reforming to adapt to today's economy and society, and the reform of state-owned enterprises is also deepening, but due to various reasons, there are many business risks in state-owned enterprises. As a lawyer, when providing legal services for state-owned enterprises and avoiding corporate legal risks, we should identify, analyze, evaluate and propose corresponding countermeasures to the current status of compliance risks of state-owned enterprises, aiming to help state-owned enterprises clarify departmental powers, strengthen information exchange, and enable state-owned enterprises to establish a complete compliance risk management and control system. Under the condition of market economy, state-owned enterprises are facing more and more opportunities and challenges, and compliance risk management and control, as one of the key links, is gradually concerned by the top management of enterprises. In order to promote the comprehensive strengthening of compliance management in state-owned enterprises, the State-owned Assets Supervision and Administration Commission of the State Council issued the "Guidelines for Compliance Management of Central Enterprises (Trial)", and the state issued the "Guiding Opinions on Strengthening the Compliance Risk Management of State-owned Enterprises", etc. Corresponding compliance management guidelines have been issued. Shandong Province has also issued the "Guidelines for Compliance Management of Provincial Enterprises" to promote the compliance management of provincial enterprises. State-owned enterprises not only strengthen their own compliance risk management, but also use professional lawyers and other external professional institutions to control compliance risks of enterprises., Identify corporate compliance risks, improve the level of legal compliance management, and ensure the sustainable and healthy development of enterprises. Status and Analysis of Compliance Risk Management and Control of State-owned Enterprises in 1. (I) lack of risk control system The construction of risk control system has always been related to the development of all kinds of enterprises. With the gradual reform of state-owned enterprises from "managing assets" to "managing capital", the construction of risk prevention and control system of state-owned enterprises is more important. In 2011, the National Development and Reform Commission issued relevant laws, requiring all regions to further improve the autonomy and control of business activities of local governments in their administrative areas, and income distribution mechanisms. At present, the traditional management concept of some state-owned enterprises is deeply rooted in the enterprise management, and the old method is followed. The consequence of this is that the internal control system of compliance risk is not perfect, and there are a series of problems such as unclear job responsibilities, low comprehensive ability of employees and weak awareness of risk prevention. For example, a Nanjing Electric Power Group Co., Ltd. has not established a complete compliance risk control system, coupled with the internal risk control system is not sound, the quality of employees is not high, in recent years, there have been frequent problems in compliance risk control management. This reflects from the side that the company did not respond to a series of relevant policies and measures issued by the state in time to adapt to standardized management and guidance, and there was no risk awareness, and errors naturally occurred in the operation. Miscellaneous and unclear powers and responsibilities of (II) departments Clear powers and responsibilities, departments perform their own duties is one of the basic requirements for the good operation of enterprises, and too many institutions will increase the expenditure of enterprises to a certain extent, increase the burden. At the same time, the existence of a large number of institutions may lead to the shirking of responsibilities and slow down the efficiency of anti-risk, resulting in various compliance risk control measures and steps formulated by enterprises are mere formality, have not been implemented, and naturally can not play its effect. In the actual operation process, there may be situations such as too centralized approval authority and weak internal control. When requesting approval, it will take a lot of time and it is easy to make unclear progress and have no way to complain. In the absence of an effective supervision mechanism to restrict the behavior of relevant personnel and the emergence of violations of laws and regulations, it is easy to cause the formation of a situation of insider control, which in turn breeds the soil of corruption. Moreover, the internal control construction of some state-owned enterprises in our country is seriously formalized, and some managers do not have the competence and management ability, and even some managers use their power for personal gain. The fundamental essence is that there is no clear responsibility and authority of each department, and the unclear division of responsibilities between departments within the enterprise and between superiors and subordinates leads to cross-functions and vague definition of responsibilities. The various departments of the enterprise shirk their responsibilities to each other, and even some managers are too perfunctory and do not carry out actual investigation and research when formulating strategies, but make decisions idealistically divorced from reality. In the long run, the formation of fixed sets and models is not conducive to compliance risk control. Low (III) resources and information sharing In the era of big data, resources and information have become a vital thing. To a certain extent, it can be said that whoever has mastered information and resources will have the opportunity to develop. In view of the monopoly of information and data in the market, China has promulgated the "the People's Republic of China Anti-monopoly Law" and other laws to deal with it, so as to safeguard the right of all kinds of enterprises to develop fairly. But in fact, there is also a problem of poor communication of information and resources within state-owned enterprises. In some state-owned enterprises, there are often situations such as less horizontal departmental exchanges and less information sharing, and even the staff have become accustomed to this. In fact, in the long run, it will not only bring about the blockage of internal information, but also not conducive to the improvement of the enterprise's comprehensive compliance risk management and control ability. In the actual operation of the enterprise, due to the lack of sharing and communication between various departments, there will be a large number of duplication of various types of work, poor resource coordination, low work efficiency and so on. Not only does it not give full play to the advantages of internal coordination and cooperation of state-owned enterprises, but it will waste a lot of time and human resources, but it does not have a good effect on the solution of the final problem. At the same time, the lack of effective communication between various departments within the enterprise, between superior and subordinate employees and superior leaders can easily lead to the decline of the operation ability of the enterprise, and various problems can not be solved in time. The accumulation will cause more serious consequences, which will bring greater risks and is not easy to remedy. The consequences of poor information communication may also have problems such as poor corporate culture construction and poor future development. It is necessary to discover and deal with them in time to avoid worse situations. Countermeasures for 2. compliance risk management and control (I) enterprises to strengthen the establishment of risk management and control system In the process of compliance risk management and control, state-owned enterprises should comprehensively examine whether the enterprise compliance management and control system is sound, improve the compliance organization system, compliance system, compliance management system, compliance guarantee system, etc., and conduct comprehensive supervision and evaluation of all departments and positions within the enterprise. At the same time, we should also strengthen the risk awareness of enterprises, and gradually establish and improve the compliance risk management and control system of enterprises through various ways. A reasonable system can be constructed from the following points: ① Establish a compliance risk management and control information system. Through various compliance risk management platforms, real-time monitoring of various situations of enterprises can be carried out to strengthen the ability to assess risks, timely feedback and then timely discovery and analysis of various potential problems, so as to improve the efficiency of enterprises in the face of risks. ② Respond to relevant national policies and keep abreast of relevant laws. The state has promulgated laws such as the "the People's Republic of China Audit Law" and the "Company Law" to guide the operation of enterprises. At the same time, the annual major policies also put forward many related policies such as strengthening the real economy and promoting the reform of state-owned enterprises. Enterprises should understand and learn in time to adjust the direction of compliance risk control. ③ Establish a complete, scientific, reasonable and practical internal audit system. In China, the audit supervision system of state-owned enterprises includes national audit, social audit and internal audit. After the establishment of a sound internal audit system, in order to better establish a risk control system, to avoid the enterprise at some time may produce losses. ④ Strengthen the construction of corporate compliance culture and improve personnel risk awareness. Starting from the top level, we should strengthen the construction of risk awareness and let employees be prepared for danger in times of peace. This is conducive to the subjective initiative and enthusiasm of employees, and better promote the establishment and implementation of the risk system. (II) clarify the responsibilities of each department Due to the wide range and complexity of compliance risk control (even if there are individual special circumstances), the governance process of state-owned enterprises should fully consider the impact of various possible factors. To ensure that the authority of various departments of the enterprise can greatly improve the purity of the enterprise is also more conducive to enterprise risk management and control, to avoid the occurrence of internal corruption. It is necessary to ensure that the various institutions within the enterprise restrict and cooperate with each other, and clarify the responsible persons and specific duties and tasks of each function of different power departments, as well as work processes and other related matters and procedural requirements. Only in this way can we deal with a matter without prevarication and inefficiency. Enterprises should also strengthen the publicity of corresponding laws and regulations internally to reduce the phenomenon of internal personnel corruption from the subjective level. When it comes to important risks, the departments before and after the event should be clear and follow up and rectify after the event. And in the actual operation process, we should constantly discover the problems existing in the existing system, and the department subdivision or integration can be more based; we should also implement the clear responsibilities, and there should be no phenomenon of hanging names, which leads to the actual decision-making power. Too concentrated again. It should be noted that the division of responsibilities and the implementation of rewards and punishments are not only a basic requirement of modern enterprises, but also an important part of establishing and improving the national governance system and strengthening the construction and management of the internal control system of state-owned enterprises. (III) strengthen internal information communication and exchange The communication and exchange of information is an important part of enterprise management, which plays an important role in state-owned enterprises. The exchange of information acquisition is the basis for the vitality of enterprises, on the basis of which enterprises can carry out better development. As for strengthening information communication and exchange between various departments, it is one of the important links that should be considered in establishing reasonable compliance risk control, which is conducive to improving the ability of risk control. To strengthen the role of risk management and control, we should start from the inside, so that the state-owned enterprises as a whole can work together to better resist risks. Once an effective channel of information communication and resource sharing is formed between various departments, it will be more conducive to the development of all aspects of the enterprise, change the face of the enterprise, and make the enterprise look new in the context of the new era. In actual operation, companies can promote communication and exchanges between various departments and personnel at different levels by formulating relevant corporate policies to achieve the effect of information sharing. In terms of objective factors, state-owned enterprises can promote data sharing through procedural things, while subjectively, they can create an environment conducive to information and resource communication by building a state-owned enterprise culture and forming a good corporate atmosphere. To sum up, the compliance risk prevention and control of state-owned enterprises should not only establish a compliance risk control system internally, but also jointly promote it with the help of external professional institutions, so as to make the compliance risk control of state-owned enterprises effective, ensure the good and orderly operation of state-owned enterprises, and achieve good development in the market economy environment.

2022-12-26

Viewpoint | A brief analysis of the administrator's right of revocation from a case

Brief of the case Due to obvious loss of solvency, a company filed an application for bankruptcy reorganization with the court of first instance on May 20, 2016. The court of first instance made a civil ruling on May 25, 2016, ruling to accept the reorganization of a company, and appointed a bankruptcy administrator on the same day. On May 24, 2016, a bank account (account number 15 ××××××) opened by a company in a branch of Agricultural Bank of China remitted US $2558558.90. After the payment arrived in the above-mentioned account, it was settled by a branch of Agricultural Bank of China on the same day (exchange rate 6.5424) and deducted RMB 16739115.75 yuan to repay the bank's claim on a company. The manager of a company filed a lawsuit with the court of first instance: 1. Revoke a company's act of paying US $2558558.90 (equivalent to RMB 16739115.75) to a branch of Agricultural Bank of China through its bank account (account number 15 ××××××); 2. A branch of Agricultural Bank of China was ordered to return the debtor's property to US $2558558.90 (equivalent to RMB 16739115.75) and the interest from the date of transfer to the date of actual return (calculated according to the bank's loan interest rate for the same period). A branch of ABC claimed that it had refunded 10 per cent of the amount of the letter of credit, as well as discrepancy charges and telegraph charges totaling $255988.89 at the request of the issuing bank, the Ethiopian Commercial Bank. The court of first instance held that the matter did not belong to the same legal relationship as the case and refused to deal with it. Judgment of first instance: The 1. revoked a company's act of paying off a loan of RMB 16739115.75 (US $2558558.90) to a branch of Agricultural Bank of China on May 24, 2016; 2. a branch of Agricultural Bank of China will pay a certain company manager within 10 days from the effective date of the first instance judgment. The debt payment is RMB 16739115.75 yuan (US $2558558.90). A branch of Agricultural Bank of 3. paid an interest loss of RMB 16739115.75 (US $2558558.90) to the manager of a company within 10 days from the effective date of the first instance judgment (calculated from May 25, 2016 to the judgment payable date based on the benchmark deposit interest rate for the same period). The case acceptance fee of 122235 yuan shall be borne by a branch of Agricultural Bank of China. After the first instance judgment, a branch of the Agricultural Bank of China appealed against the first instance judgment. Its appeal request is: cassation, dismissal of the appellee's claim, and the costs of the proceedings shall be borne by the appellee. The fact that the appellant claimed to have returned $255988.89 to the Ethiopian Commercial Bank was confirmed by the court of second instance because the manager of a company had no objection to its authenticity. The court of second instance accepted the appeal of a branch of Agricultural Bank of China, and after hearing, made the following judgment: the 1. revoked a company's act of paying off a loan of 15064334.03 yuan (US $2302570.01) to a branch of Agricultural Bank of China on May 24, 2016; 2. a branch of Agricultural Bank of China paid 15064334.03 yuan (US $2302570.01) to the manager of a company within 10 days from the effective date of this judgment. A branch of Agricultural Bank of 3. shall pay an interest loss of RMB 15064334.03 (US $2302570.01) to the manager of a company within ten days from the effective date of this judgment (calculated from May 25, 2016 to the payment date determined by this judgment based on the benchmark deposit interest rate for the same period). legal analysis The purpose of the bankruptcy avoidance system is to safeguard the overall interests of creditors and realize the value of fair settlement. Through the avoidance of the relevant acts of the debtor, the substantive equality between creditors is maintained and the fair distribution of the estate among all creditors is realized. The provisions of Article 32 of the the People's Republic of China Enterprise Bankruptcy Law indicate the legislative intent that the individual liquidation of the debtor under specific circumstances should be revoked in accordance with the law. ▲ First of all, regarding the subject of litigation in this case-whether the administrator can sue in his own name. According to Article 32 of the the People's Republic of China Enterprise Bankruptcy Law, the administrator has the right to bring an action in his own name. ▲ Secondly, if the deduction is based on the contract and the deduction is automatically deducted by the banking system, does it constitute an individual settlement. Regardless of whether the deduction is based on a contractual agreement, the act of pre-authorizing the bank's automatic deduction or the bank's unilateral deduction constitutes an individual settlement. Thirdly, both active and passive liquidation can constitute individual liquidation. Even if a company is passively liquidated, it is still a company that has settled individual claims. If it is determined that the bank's unilateral deduction is not a debtor's liquidation behavior and does not fall within the scope of Article 32 of the the People's Republic of China Enterprise Bankruptcy Law, according to this logic, then even after entering the bankruptcy procedure, the bank can still receive priority compensation through unilateral deduction instead of being regarded as the debtor's individual liquidation, which will lead to the principle of prohibiting individual liquidation stipulated in Article 16 of the the People's Republic of China Enterprise Bankruptcy Law being useless to the debtor's bank. Finally, according to the the People's Republic of China Enterprise Bankruptcy Law and relevant judicial interpretations, the creditor's self-relief in bankruptcy proceedings is limited to the right of set-off stipulated in Article 40 of the the People's Republic of China Enterprise Bankruptcy Law. The claim that creditors can be self-relief at will is contrary to the principle of intensive and fair liquidation of debts in bankruptcy proceedings. Self-relief cannot be a reason to deny that this case constitutes individual settlement. Lawyer's opinion According to Article 32 of the the People's Republic of China Enterprise Bankruptcy Law: "If, within six months before the people's court accepts the bankruptcy petition, the debtor still pays off the individual creditors under the circumstances specified in the first paragraph of Article 2 of this Law, the administrator has the right to request the people's court to revoke it. However, unless the individual settlement benefits the debtor's property." This case is not a case of individual liquidation benefiting the debtor's property and should therefore be set aside. In order to obtain the support of the people's court, the right of bankruptcy revocation shall meet the following conditions: First, the debtor has a cause of bankruptcy. Due to obvious loss of solvency, a company filed an application for bankruptcy reorganization with the court of first instance on May 20, 2016. The court of first instance made a civil ruling on May 25, 2016, ruling to accept the reorganization of a company, and appointed a bankruptcy administrator on the same day. Secondly, the debtor pays off individual creditors. On May 24, 2016, a branch of Agricultural Bank of China deducted 16739115.75 yuan to repay the bank's creditor's rights to a company. The individual settlement shall be within six months before the people's court accepts the bankruptcy application. Because the company entered the bankruptcy liquidation procedure on May 25, 2016, and the Agricultural Bank of China carried out the deduction on May 24, 2016, which occurred within six months before a company was accepted by the court for bankruptcy application, which was an individual liquidation act. Finally, the individual settlement did not benefit the debtor's property. Article Link: 1. Article 2 of the the People's Republic of China Enterprise Bankruptcy Law: If an enterprise legal person is unable to pay off the debts due and the assets are insufficient to pay off all the debts or are manifestly insolvent, the debts shall be liquidated in accordance with the provisions of this Law. 2. Article 16 of the the People's Republic of China Enterprise Bankruptcy Law: After the people's court accepts the bankruptcy application, the debtor's debt settlement to individual creditors is invalid. 3. Article 32 of the the People's Republic of China Enterprise Bankruptcy Law: Within six months before the people's court accepts the bankruptcy application, if the debtor has the circumstances stipulated in the first paragraph of Article 2 of this Law and still pays off individual creditors, the administrator shall have the right to request the people's court to revoke it. Except where individual settlements benefit the debtor's property. 4. Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law (II) Article 44 Within six months before the acceptance of the bankruptcy application, the debtor has the circumstances specified in the first paragraph of Article 2 of the Enterprise Bankruptcy Law, and the debtor and Individual creditors pay off individual creditors by way of offset, and the creditor's rights and debts offset belong to one of the circumstances specified in (II) and (III) of Article 40 of the Enterprise Bankruptcy Law, if the administrator files a lawsuit with the people's court within three months from the date of acceptance of the bankruptcy application, claiming that the set-off is invalid, the people's court shall support it. 5. Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law (II) Article 9 Where an administrator files a lawsuit in accordance with the provisions of Articles 31 and 32 of the Enterprise Bankruptcy Law, the people's court shall support the request for the cancellation of relevant acts involving the debtor's property and the return of the debtor's property by the counterpart.

2022-12-26

Point of View... Is the shareholder liable for the liquidation of the company's debts before the transfer?

Brief of the case Zhang, Wang and Zeng are shareholders of Company A, Zeng is a major shareholder accounting for 70% of the shares, Zhang and Wang each accounting for 15%. Later, Zeng signed an Equity Transfer Agreement with Shandong Company B, agreeing that Zeng would transfer 70% of his equity in Company A to Shandong Company B at a price of 3.5 million yuan. On December 2, 2015, Zeng registered 70% of the equity change to Shandong B Company. However, Shandong B Company only paid 1.2 million yuan and the balance of 2.3 million yuan has not been paid. Feng Mou 1 and Feng Mou 2, the original shareholders of Shandong B Company, were transferred to the company on January 19, 2017 and April 26, 2017 respectively, and the subscription period was December 31, 2024. The latter two registered their equity changes in Shandong B Company under Zhang and Wei on December 12, 2017 and November 6, 2018 respectively. Now Zeng filed a lawsuit with the court, requesting Shandong B Company to pay 2.3 million yuan for the equity transfer and liquidated damages for overdue payment, and requiring Feng 1 and Feng 2 to bear supplementary compensation liability for the above debts. After hearing, the court held that although Zeng had the right to require Shandong B Company to pay the remaining equity transfer money and late payment of liquidated damages, it did not have the right to require Feng 1 and Feng 2 to bear supplementary liability for the above-mentioned money. Views of the Court The core legal issue of this case is whether the transfer of equity by shareholders before the expiration of the capital contribution period constitutes the situation of "transfer of equity without performance or full performance of capital contribution obligations" as stipulated in Article 13, paragraph 2 and Article 18 of the (III) for Judicial Interpretation of the Company Law, so as to bear the supplementary repayment responsibility for the accelerated maturity of capital contribution for the company's debts before the transfer. After hearing the case, the people's court held that shareholders should be recognized and protected to enjoy the "time limit interests" of capital contribution. Therefore, the transfer of equity by Feng 1 and Feng 2 before the expiration of the time limit for capital contribution does not constitute the situation of "transfer of equity without performance or full performance of capital contribution obligations" stipulated in Article 13, paragraph 2, and Article 18 of the (III) of the Supreme People's Court on Several Issues, thus, Feng 1, Feng 2 do not bear supplementary liability for the part of Shandong B company debt can not be paid off. Lawyer's Views and Suggestions The provisions of Article 13, paragraph 2, and Article 18 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law shall not apply to the act of "transferring equity without fulfilling or fully fulfilling the obligation of capital contribution. In this case, the Supreme Court held that the shareholders enjoyed the "term benefit" of the capital contribution, and that the creditors of the company had the opportunity to examine whether to conduct a transaction with the company on the basis of reviewing the credit information such as the time of the shareholders' capital contribution, and that the creditors' decision on the transaction should be bound by the time of the shareholders' capital contribution. The act of transferring equity before the expiration of the period of capital contribution by shareholders does not constitute the situation of "transferring equity without performance or full performance of capital contribution obligations" as stipulated in Article 13, paragraph 2 and Article 18 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law. Creditors have no right to require shareholders to bear supplementary compensation liability for accelerating the expiration of the company's debts within the scope of the principal and interest of the unpaid capital contribution. Therefore, the parties should pay attention to the following matters when entering into equity transactions: 1. In order to avoid disputes after the transfer of shares, the shareholders who purchase the shares held by the shareholders who have not expired shall be required to pay the registered capital before the transfer of the shares. 2. Before cooperating with the company or contracting, the parties shall investigate the paid-in registered capital of the target company, the time of shareholders' capital contribution and other information, assess the potential risks brought about by factors such as the debtor's registered capital has not been paid, the period of shareholders' capital contribution has not expired, and require the debtor to provide and increase other forms of performance guarantee.

2022-12-26

Viewpoint | Legislative Research on Orphan Works in the Digital Age

Abstract: With the advent of the era of digital rapid development, the number of orphan works in digital form has increased sharply. It is urgent to regulate the copyright protection and reasonable use of orphan works through legislation, so as to balance the relationship between the right holders, users and social public interests of orphan works. The legislative model of compulsory licensing proposed in the Copyright Law (Draft for Review) is not the best choice for China's national conditions, and a more flexible and efficient extended licensing system may become the legislative direction to solve the problem of orphan works. Keywords: orphan works digital extended collective licensing system legislation Overview of Orphan Works in the Digital Age of 1. The copyright protection of orphan works has always been a difficult problem in the field of copyright law in China, and it has attracted much attention all over the world. Especially in today's era of rapid digital development, with the widespread entry of digital platforms such as online search, digital libraries, and self-media creation apps into people's lives, the number of orphan works in digital form has increased sharply, becoming an urgent need to overcome. Key difficulties. Although there are preliminary attempts in the legislative practice of orphan works in our country, the provisions of orphan works have not been incorporated into the copyright law, and there is a lack of legal system to guide and regulate its protection and reasonable use. Orphan works are works whose authorship is unknown or whose authorship can be clearly identified but whose authorship cannot be found after diligent search. [1] The unknown identity of the author generally includes that the author has not signed or created anonymously, has not published the work publicly, or has published the work publicly, but due to the long time, the author's identity cannot be confirmed until now. Another example is that after the author dies, there is no heir to inherit his copyright, or after the dissolution of the legal person, there is no designated transferee of the rights of the work. [2] The situation where the author cannot be found after diligent search means that the author of the work can be determined, but the author cannot be determined where. According to the provisions of the Berne Convention, foreign authors enjoy copyright under the domestic law of their works in each member country [3], so it is often difficult for foreign authors to live in other countries. In either case, the user will not be able to obtain the authorization of the author when using the work, which runs counter to the protection principle of "authorization before use" in the copyright law. it has caused great obstacles to the protection of copyright and the promotion of cultural dissemination. At present, the volume of orphan works in the world is huge. The reason is that the copyright implements the principle of automatic protection, that is, the copyright is automatically enjoyed after the creation of the work without any formalities; the second is that the protection period of the copyright is constantly extended. The trend has led to a longer time for works to enter the public domain; the third is that with the advent of the digital age, all kinds of digital works are no longer restricted by time and space. More and more people participate in the creation, and more and more works are disseminated on the Internet. It is more difficult to determine the right holders of the works, while the public's demand for digital works continues to increase [4], which intensifies the contradiction between the copyright protection of orphan works and the cultural dissemination. 2. the legislative significance of orphan works in the process of digital construction in China Copyright entitles the owner of the work to exclusive absolute rights, without the consent of the copyright owner, others may not use the work. For the situation that it is difficult to obtain the consent of the right holder for orphan works, the absolute protection of rights undoubtedly brings great obstacles to the dissemination of knowledge and information and the innovation of cultural achievements. From the perspective of interest balance, the contradiction of orphan works mainly exists between the copyright owner, the user of the work and the public interest, and the contradiction of interest balance is particularly prominent in the era of digital works. On the one hand, the establishment of the right of information network dissemination and the legalization of technical protection measures have continuously strengthened the copyright protection in the digital environment. The World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty have greatly strengthened the protection of traditional copyrights and neighboring rights in the information network environment, expanded the scope of the object of copyright protection, and clearly established The information network dissemination rights of copyright owners and neighboring rights owners, that is, the dissemination of works through information networks must obtain the authorization of the copyright owner, and the interests of the copyright owner must not be harmed. [5] On the other hand, the digital information age makes the network dissemination of works more free and diverse in time, space and mode of dissemination, thus promoting the users of works to have greater opportunities to contact more network works at a lower cost. The over-protection of the copyright of orphan works increases the risk of infringement for the users of the works, and poses a certain threat to the users' right to reasonably obtain knowledge and information. At the same time, the excessive protection of copyright makes the public domain of orphan works more and more narrow, which has a negative impact on the dissemination of cultural knowledge and the promotion of digital construction. The National Fourteenth Five-Year Plan and Vision 2035 calls for "raising the level of public cultural services and comprehensively prospering the press and publishing, radio, film and television, literature and art, philosophy and social sciences. It also further calls for promoting the integrated construction of a public cultural service system in urban and rural areas, innovating and implementing cultural projects for the benefit of the people, extensively carrying out mass cultural activities, and promoting the digitalization of public culture." From the perspective of public policies to promote digital construction and promote cultural sharing and dissemination, it is necessary to regulate orphan works through systems, clarify the rights restrictions of copyright owners and users, and promote more excellent orphan works to be fair, friendly and legal on the network platform. Carry out dissemination and sharing, and promote the construction of digital platforms. [6] Therefore, appropriate restrictions on the protection of copyright through the design of the legal system can effectively maintain the balance between the private interest protection of the copyright of orphan works and the public interest of information dissemination and social science and cultural progress, so that the public can fully enjoy the right to contact works and obtain cultural dissemination, which is the most fundamental and optimal way to solve the problem of orphan works. Legislative Practice and Experience of Orphan Works in 3. Countries (I) Canada Section 77 of Canada's Copyright Act is a provision on orphan works. "When an applicant applies to the Commission to obtain (a) a published work; (B) a recording of a performer's performance;(c) a published sound recording;(d) a recording of a communication signal, if the Commission considers that the applicant has exercised reasonable diligence to find the copyright owner but cannot find the copyright owner, the Commission may issue a licence to the applicant for use." [7] The license is non-exclusive and indicates the duration and conditions of the work. At the same time, it is stipulated that the copyright owner may collect the royalties specified in the license no later than five years after the expiration of the license issued in respect of the copyright, or may bring an action to recover the royalties in a court of competent jurisdiction if the royalties are not paid. The biggest drawback of this compulsory licensing model in Canada is the need to establish a special copyright committee to review and manage the licensing of orphan works, which has high operating costs and low licensing efficiency, and has not been widely used in Canadian judicial practice. (II) United States In the United States, legislation on orphan works is embodied in the Orphan Works Act of 2006 [8] and the Orphan Works Act of 2008 [9]. The 2006 Act proposes a relief restriction system for orphan works. The act of using orphan works is defined as infringement. However, if the infringer has made a good faith, reasonable and diligent search and record before using the work, it will limit its liability for infringement. The 2008 Act further improves the measures and conditions for restricting relief, and further limits the monetary relief restrictions that exempt reasonable compensation to non-profit educational institutions, libraries, archives, public broadcasters, etc., and the infringer is required to be non-profit. Bear the burden of proof. [10] In 2015, the U.S. Copyright Office published a study, "Orphan Works and Mass Digitization," [11] examining subsequent developments in orphan works law, such as Google Books and the Hathitrust lawsuit, as well as the European Union's Memorandum of Understanding on Digitization, the Provision of Works for Non-Commercial Purposes, and proposing draft proposals for orphan works legislation in Appendix A. (III) England Article 57 of the 1988 Copyright, Design and Patents Act stipulates that the UK adopts a statutory licensing protection system for orphan works, and on this basis, the UK Copyright Act 2014 is formulated. Its statutory license protection system stipulates that if the user fails to find the right holder after reasonable and diligent search, it can be considered that the right holder has died or the copyright has expired, and the user's use of the work is no longer considered an infringement. [12] (IV) Germany German legislation on "orphan" and "out-of-print" works was adopted on 10 January 2013 and entered into force on 1 January 2014. The amendment to the Copyright Act provides for the digitization of orphan works and the provision of eligible orphan works from the collections of publicly accessible libraries, educational institutions, museums and archives to the public under certain conditions. [13] (V) Hungary The Hungarian Copyright Act (HCA) was amended in 2003 to add a free-to-use clause that allows libraries, archives and other educational institutions to provide limited on-site collections of works in their collections, including orphan works, and research through educational and academic terminals. The Copyright Act, as amended in 2009, has specific legislation for orphan works and provides for the issuance of licences for commercial and non-commercial use of orphan works by the Hungarian Intellectual Property Office (HIPO). The applicant must complete the relevant documents proving that he has conducted a diligent search and pay for their use. [14] (VI) Japan Article 67 [15] of Japan's "Copyright Law" stipulates that if the right holder cannot be determined or the right holder of the work cannot be determined after diligent search, a compulsory license may be granted upon the ruling of the Culture Committee established by the Department of Culture. The applicant must deposit a compensation fee corresponding to the normal royalty rate for the reappearing rights holder. Japanese legislation also provides for compulsory licensing of works by foreign writers, which can also be granted to works of foreign writers as long as the works are used in Japan, and the same provisions apply to diligent search for foreign works as to domestic works. (VII) South Korea According to Article 50 of the South Korea Copyright Act, users can apply to the Minister of Culture, Sports and Tourism for a compulsory license to allow the use of certain types of orphan works. Applicants must prove that they have made "considerable efforts" to determine the right holder or the right holder's place of residence, and must be paid at market rates determined by the South Korea Copyright Commission. [16] Suggestions on Legislation Design for 4. Orphan Works in China China's current "Copyright Law" does not provide for orphan works. Article 51 of the "Copyright Law (Draft for Review)" formed in the third revision of the Copyright Law stipulates, "For published works whose copyright protection period has not expired, the user tries his best to find the right holder but fails, and meets one of the following conditions, it can be used in digital form after applying to the agency designated by the copyright administration department of the State Council and depositing the royalties: (1) The identity of the copyright owner is unknown; the identity of the (II) copyright owner is determined but cannot be contacted." It can be seen that Article 51 of the draft for review draws on the compulsory licensing system of Canada, Japan, South Korea and other countries, and adopts a legislative model that combines diligent search, institutional approval, and deposit royalties. Although Article 51 was not included in the third amendment to the Copyright Law passed on November 11, 2020, this legislative exploration of the protection of orphan works is positive and beneficial, but its enforceability needs to be further improved. The compulsory licensing system gives full protection to the right holders of orphan works. However, due to the establishment of a special administrative agency to be responsible for the examination and management, the operation cost is high and the authorization efficiency is low, which is not conducive to the users to obtain the right to use orphan works as soon as possible. Objectively, it can not achieve the goal of promoting the dissemination of cultural knowledge and digital construction. Combined with China's national conditions, we can consider adopting an extended collective licensing system in the next legislative process of orphan works, and the copyright collective management organization will exercise the rights on behalf of the copyright owners of orphan works. An extended collective licensing system refers to an agreement between a collective management organization, as a representative of the relevant copyright owner in a particular field, and a user (such as a library) for the use of a work, whose binding power can be extended to non-member rights holders according to the law. [17] The extended collective licensing model is very suitable for collective copyright management for the reuse of digital works, greatly reducing the difficulty for users to find copyright owners, and benefiting more potential users, which is conducive to the large-scale use of orphan works. Under this solution, the copyright owner voluntarily registers his work with the collective management organization, and the collective management organization permits the user to use the work based on a predetermined fee. The user does not need to directly find the copyright owner and negotiate the license with the copyright owner. At the same time, the collective management organization has the right to license the use of non-member works that have not been registered with the organization. This model was created by the five Nordic countries and its success depends on the Nordic countries having a well-developed structure and culture for the activities of collective management organizations. In countries with underdeveloped collective management cultures and structures, extended collective licensing systems may need to be supplemented by further good governance rules. [18] The main advantage of this model is that bona fide potential users can benefit from clear legal avenues and prevent works from becoming orphaned and protect works of unknown author. [19] Under this system, users of works are not obliged to determine that a work is an orphan work by conducting a diligent search, but rather the collective management organization is obliged to conduct a diligent search to find and pay remuneration to all relevant copyright owners of works covered by the extended collective license agreement. At the same time, compared with administrative organs, copyright collective management organizations are closer to the copyright market and have a better understanding of the nature of market subjects' pursuit of interests, so compared with the copyright Bureau, copyright collective management organizations can more flexibly adjust the examination of orphan works to achieve the purpose of increasing efficiency. [20] In the digital age, the public's demand for free access to culture and knowledge is stronger than ever before, and the excessive protection of copyright law on the right holders of works is often not conducive to people's free enjoyment of culture and the rapid dissemination of information. On the road of copyright law legislation in the future, we should especially consider the balance of interests among the right holders, users and social public interests of the works, so as to make up for the legislative blank of orphan works in China's copyright law as soon as possible. Comments: [1] Lv Bingbin: "Restrictions on the Relief of Intellectual Property Rights to Stop Infringement under the Theory of Hijacking -- Taking" Orphan Works as an Example ", in" Journal of Shanxi Normal University (Social Science Edition) "March 2021, Volume 48, No.

2022-12-26

Dynamic... Zhongcheng Qingtai Jinan region held a market analysis meeting for all senior partners.

On December 24, 2022, all senior partners, branch directors and department directors of Zhongcheng Qingtai Jinan Regional Organization held a market analysis meeting. Lawyer Du Wentang, director of Jinan Regional Management Committee, presided over the meeting. Director Du pointed out that in the face of 2023, which is full of uncertainty, we should not always find security in the "familiar" world, but should look for opportunities in the "unknown", exercise our ability to adapt to environmental changes, and encourage everyone to work together, jointly take the pulse of the follow-up development and market development of Zhongcheng Qingtai. Geng Guoyu, director of Zhongcheng Qingtai Jinan Institute, shared the theme from the changes and changes in the legal service market. Director Geng emphasized that the essence of the market is competition. Without competition, there is no market, and the essence of competition is efficiency. The connotation of competition in the legal service market includes three aspects: the space of the external market, changes in the external environment, and the organizational capabilities of law firms. Cheng Shining, director of the market and Publicity Committee, systematically shared the supply and demand of legal services from the perspective of regional economic and trade war conflicts, international and domestic double circulation, political and economic layout adjustment, and from the perspective of the changing trend of the legal service market in the world, the whole country and Shandong Province. It discusses the significance of the scale development of law firms, the scale we want to do and what kind of market to match, and what kind of talent we need at this scale. Lawyer Zhao Kaiyong, Director of the Business Executive Committee, systematically introduced the development positioning and fee structure of the law firm's business from the perspective of the firm's own data, summarized the problems in the development of the law firm, and conducted a leading analysis of the frontiers of business development and the overall development trend of the legal service industry. After the theme sharing, the directors and senior partners of the participating departments spoke enthusiastically, and gave practical and pertinent suggestions from the professional perspective, market perspective, team building, resource integration and practical level. At the end of the meeting, Han Honggang, director of Zhongcheng Qingtai Law Firm, made a concluding speech, encouraging everyone to boost morale and forge ahead actively, so as to make a good start and choose a good road for Zhongcheng Qingtai in 2023.

2022-12-26

Viewpoint... Analysis of legal issues in the allocation of land, authorization to operate land use rights and the lease of above-ground buildings.

Introduction Because the allocated land is obtained free of charge from the state, and the authorized operation of the land belongs to the special nature of the operation and management of the specific subject authorized by the state, there are also special provisions on the allocation of land, the authorized operation of land use rights and the lease of above-ground buildings. In judicial practice, whether the lease contract is found to be invalid in violation of relevant regulations, the judicial decision is not consistent. In this case, how the parties to the contract should avoid the risk and prevent the lease contract from being found invalid by the court is particularly critical. This paper tries to analyze the legal problems existing in the allocation of land, the authorized operation of land use rights and the lease of above-ground buildings, and analyzes the relevant judicial precedents and the legal problems involved, puts forward relevant legal suggestions, and gives opinions on how to regulate the allocation of land, the authorized operation of land use rights and the lease of above-ground buildings for reference. The legal problems of the 1. in the allocation of land, the authorization of land use rights and the lease of above-ground buildings. When the (I) leases the allocated land use rights and above-ground buildings, it does not meet the conditions stipulated in Article 45 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns, or the lease has not been approved by the land management department and real estate management department of the municipal or county people's government. Compared with the general land use right and building lease, China has made special provisions on the allocation of land use right and the lease of above ground buildings. According to the provisions of Articles 45 and 46 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns, the lease of allocated land use rights and above-ground buildings needs to meet certain conditions, the land user must be a company, enterprise, other economic organization or individual, shall have a state-owned land use certificate, have legal property rights certificates of above-ground buildings and other attachments, and sign a land use right transfer contract in accordance with the provisions of the interim regulations on the transfer and transfer of State-owned Land use right in the People's Republic of China cities and towns. Pay the land use right transfer fee to the local city or county people's government or offset the land use right transfer fee with the proceeds from the transfer, lease or mortgage. At the same time, the lease needs to be approved by the land management department and the real estate management department of the city and county people's government. For those who do not meet the conditions for lease, the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns stipulates that the allocated land use rights and above-ground buildings shall not be leased, and the allocated land use rights and above-ground buildings shall be leased without approval. Yes, it will be fined by the land management department of the city or county people's government. Therefore, for the allocated land use rights and above-ground buildings that do not meet the above-mentioned lease conditions and are leased without approval, and the lease contract signed with the lessee violates the provisions of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns. According to the relevant cases collected by the author, the validity of this kind of lease contract is still controversial, and there are two opinions of judgment, valid and invalid, in such cases, there is a risk that the lease contract will be found invalid by the court. After the (II) leased the allocated land and authorized the operation of the land use right, it changed the land use, but failed to submit it to the relevant departments for approval in accordance with the the People's Republic of China Land Administration Law and other relevant provisions. Due to the implementation of the land use control system in China, units and individuals using land must use land in strict accordance with the purposes determined by the overall land use plan. Therefore, for the leased allocated land and authorized operation of land use rights, the land should also be used in strict accordance with the determined use. If the land use is changed, according to the "the People's Republic of China Land Management Law", "The Ministry of Land and Resources on Strengthening Land Asset Management and Promoting State-owned Enterprise Reform" Several Opinions on Development "and the" Implementation Rules for the Transfer, Lease and Mortgage Transaction of Construction Land Use Rights in Shandong Province (Trial), should be submitted to the relevant departments for approval. If the allocated land after the lease and the authorized operation of the land use right change the land use but do not report for approval, according to the relevant cases collected by the author, the lease contract in this case will be found invalid by the court. 2. Judicial Decision View Integration and Jurisprudential Analysis (I), with regard to the first legal issue listed above, that is, the allocation of land use rights and the lease of above-ground buildings, which does not meet the relevant conditions and does not go through the approval procedures, there are two views on the validity and invalidity of the lease contract in judicial practice: ♦Judicial opinion on the validity of the lease contract: In the civil judgment of the second instance of the dispute over the land lease contract between Shenzhen Longxiang Freight Co., Ltd. and Shenzhen Pingyan Sea Railway Intermodal Transport Co., Ltd., No. 8602 (2020) Guangdong 03 Minzhong, Shenzhen Intermediate People's Court held that "although Articles 44 and 45 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns stipulate that the lease and allocation of land use rights shall be approved by the land administration departments of the municipal and county people's government, however, the aforementioned provisions and Article 46 of the regulations do not expressly stipulate that the consequences of violation are invalid contracts. In Item 10 of the" Guiding Opinions of the General Office of the State Council on Improving the Secondary Market for the Transfer, Lease and Mortgage of the Right to Use Construction Land "(Guo Ban Fa [2019] No. 34), it is also clear that the lessor should declare and turn over the land income contained in the rent in accordance with relevant regulations," No separate approval procedures for the lease of the right to use the allocated construction land will be handled ". After synthesizing the consequences of the violation of the aforementioned mandatory provisions and the state's reform of the secondary market management policy for construction land, as far as the unauthorized allocated land lease contract is concerned, the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in Cities and Towns in the People's Republic of China Article 44 and the first paragraph of Article 45 should not be regarded as effective mandatory provisions. Accordingly, the Court does not support Longxiang's appeal that the lease contract in question is invalid due to illegality." ♦Judicial opinion on the invalidity of the lease contract: In (2020) Lu 14 Min Zai No. 37 civil judgment on the retrial of disputes over the lease contract of Shandong Dezhou Prison and Wang Hong's holy land, the retrial court held that "the subjects of leasing the state-owned land use rights obtained through allocation are companies, enterprises, other economic organizations and individuals, and should be reported to the relevant government land management departments for approval. The lessor of the lease contract involved in this case is Dezhou prison, which is the national penalty enforcement organ, it does not belong to companies, enterprises, other economic organizations and individuals, and does not meet the main requirements for leasing and allocating land use rights as stipulated in Article 45 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns. The lease contract signed was not submitted to the relevant government departments for approval. Therefore, the original second-instance judgment found the contract invalid because it violated the mandatory provisions of the law." (II) Secondly, for the second legal issue listed above, that is, the validity of the lease contract for the change of land use after the allocation of land and the authorization to operate the land lease, there is no dispute in judicial practice, and the court has found the lease contract invalid. For example, in the civil judgment of the second instance of the dispute over the land lease contract between Beijing Baoxing Golf Training Center Co., Ltd. and Beijing Daxing District Water Affairs Bureau at (2022) No. 1891, Beijing 02 Minzhong, Beijing No. 2 Intermediate People's Court held that "the state implements a land use control system. Units and individuals using land must use land in strict accordance with the purposes determined in the overall plan for land use. If a construction unit uses state-owned land, it shall use the land in accordance with the provisions of the paid use contract such as the transfer of the land use right or the provisions of the approval document for the allocation of the land use right; if it is really necessary to change the construction use of the land, it shall be approved by the competent department of natural resources of the relevant people's government and submitted to the people's government that originally approved the land for approval. Among them, the change of land use within the urban planning area shall first obtain the consent of the relevant urban planning administrative department before reporting for approval. Daxing Water Bureau and Baoxing Golf Company used unused land for the construction of golf courses and changed the land use without the approval of relevant authorities, which violated the mandatory provisions of the law and was an invalid contract." In the civil judgment of the second instance of the dispute over the land lease contract between China United Network Communications Co., Ltd. Qingdao Branch and Shandong Lianneng Electric Power Design Co., Ltd., No. 1464 (2021) Lu 02 Min Zhong, the Qingdao Intermediate people's Court held that "the use of the land use right involved is public facilities, the type of use right is authorized operation, the use of the land leased by the appellee is parking building, commerce, office, etc, however, failure to report to the relevant departments for approval and make up the land transfer fee, in violation of land management laws and regulations, should be invalid. (III) jurisprudence analysis Through the above cases, it can be seen that the allocation of land use rights and the lease of buildings on the ground does not meet the relevant conditions, nor does it go through the approval procedures, that is, the first legal issue listed in this article, the validity of the lease contract is controversial in judicial practice. The key to the differences lies in whether the relevant laws and regulations that are required to meet the relevant conditions and require approval are "mandatory provisions of validity" that can be determined to be invalid when leasing the allocated land, authorized operation of land use rights and buildings on the ground ". In this regard, the author believes that the determination of whether the lease contract is invalid should be argued separately according to the specific circumstances of the case: 1. For the allocated land lease contract that does not meet the relevant conditions and is leased without approval, it violates the provisions of Article 44 and Article 45 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns. It will not harm the national and social public interests, but only violate the management order, therefore, it is not appropriate to regard Articles 44 and 45 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns as mandatory provisions of validity. In such cases, the lease contract should not be deemed invalid. 2. For the lease contract that has not been reported for approval after the allocation of land and the authorized operation of land lease, it violates the provisions of Article 56 of the the People's Republic of China Land Administration Law. Due to the implementation of the land use control system by the state, the units and individuals who use the land must use the land in strict accordance with the use determined by the overall land use plan. In this case, if the land use is changed after the lease but not approved, the lease contract shall be null and void if it is in violation of the mandatory provisions of the law. 3. In addition, the validity of lease contracts for the allocation of land, the authorization to operate land use rights and the lease of buildings on the ground is also subject to other factors such as the payment of land income in rent. Relevant legal provisions: 3. relevant legal advice The (I) lessor shall strictly improve the relevant procedures for obtaining the property rights of the allocated land and above-ground buildings, and strictly perform the approval procedures for the lease of the allocated land use rights and above-ground buildings, and promptly turn over the land income in the rent to the relevant land and real estate resources management unit. If the (II) allocates land or authorizes the operation of land use rights to change the use of land after leasing, it shall be submitted to the relevant departments for approval, in strict accordance with Article 56 of the the People's Republic of China Land Administration Law and Article 3 of the Ministry of Land and Resources on strengthening the Management of Land assets and promoting the Reform and Development of State-owned Enterprises, for those who change the use of land after allocating land and authorizing the operation of land use rights. Actively apply to the relevant departments for approval. (III) recommend that the relevant terms be refined and refined when the lease contract is signed. First, according to the first paragraph of Article 75 of the Civil Code, the term of the lease shall not exceed twenty years. More than 20 years, more than part of the invalid. Due to the long lease period generally involved in the allocation of land, authorized operation of land use rights and above-ground buildings, it should be noted that when signing a lease contract with the lessee, the agreed lease period shall not exceed 20 years. Secondly, because the allocated land is obtained from the state free of charge and the authorized operation of the land belongs to the special nature of the operation and management of a specific subject authorized by the state, the lessor may lose the relevant land use right due to changes in relevant national policies and other conditions. Therefore, in order to avoid disputes, in addition to signing in accordance with the general lease contract, special attention should be paid to the following points: 1. Perfecting the issue of no responsibility to discharge the lease contract in the case of state expropriation, requisition or recovery of land; 2. Clarify the attribution of levies and compensation in the case of state expropriation, etc; 3. Improve the liability for damages for above-ground appendages, related decorations, etc. caused by the termination of the lease contract under the aforementioned circumstances.

2022-12-21

From the perspective of mineral law, the revised highlights of the "Administrative Measures for the Extraction and Use of Enterprise Safety Production Expenses" and the comparison of old and new contents.

Recently, the Ministry of Finance and the Ministry of Emergency Management jointly issued the revised "Enterprise Safety Production Expenses Extraction and Use Management Measures" (Treasury [2022] No. 136) (hereinafter referred to as the "Measures"), which is the 2012 "Enterprise Safety Production Expenses Extraction and Use Management Measures" (Treasury [2012] No. 16) revised version. There are four chapters and 69 articles in this revised edition, which will come into effect on November 21, and the document No. 16 of Caiqi [2012] will be abolished at the same time. The revised "measures" define the extraction standards and expenditure scope of production safety expenses of 12 types of enterprises, such as coal production enterprises and non-coal mining enterprises. The revised contents and highlights of the Measures are as follows: Refinement and increase of 1. enterprise types For the extraction and use of enterprise safety production costs, the revised "Measures" added three types of enterprises, as shown in the table below. The standard of extraction proportion of production safety expenses of some enterprises in 2. has changed. The "Measures" moderately raised the safety cost extraction standards for six types of industries (enterprises): coal production, non-coal mine mining, construction engineering construction, dangerous goods production and storage, fireworks and firecrackers production, and machinery manufacturing; (I) coal production enterprises 1, the coal (rock) and gas (carbon dioxide) outburst mine safety cost extraction standard, from 30 yuan per ton of coal to 50 yuan; 2. Added: 30 yuan per ton of coal in high gas mine, complex hydrogeological type and extremely complex mine, coal seam mine prone to spontaneous combustion. (II) non-coal mining enterprises 1, metal mines, underground mines safety cost extraction standards, from 10 yuan per ton to 15 yuan; 2, non-metallic mines, including open-pit mines from 2 yuan per ton to 3 yuan, underground mines from 4 yuan per ton to 8 yuan; 3. Small open-pit quarry, that is, hillside open-pit quarry with an annual production scale of no more than 500000 tons, will be transferred from 1 yuan to 2 yuan per ton. (III) construction enterprise 1. The standard for the provision of safety costs for mining projects has been raised from 2.5 per cent to 3.5 per cent; 2, railway engineering, urban rail transit engineering, housing construction safety costs, from the original 2.0 per cent to 3 per cent; 3, water conservancy and hydropower projects, power engineering safety costs of the standard, from the original 2.0 per cent to 2.5 per cent; 4, smelting engineering, mechanical and electrical installation engineering, chemical petroleum engineering, communication engineering safety cost accrual standard, from the original 1.5 to 2%. (IV) dangerous goods production and storage enterprises 1, operating income does not exceed 10 million yuan, security costs from 4% to 4.5; 2. If the operating income exceeds 10 million yuan to 0.1 billion yuan, the standard for extracting safety expenses will be raised from 2% to 2.25; 3. If the operating income exceeds 0.1 billion yuan to 1 billion yuan, the standard for extracting safety expenses will be raised from 0.5 to 0.55. (V) fireworks production enterprises 1, operating income does not exceed 10 million yuan, according to 4.0 extraction; 2. The part of operating income exceeding 10 million yuan to 20 million yuan shall be extracted according to 3%; 3. The part of operating income exceeding 20 million yuan shall be extracted at 2.5. (VI) machinery manufacturing enterprises 1. If the operating income of the previous year does not exceed 10 million yuan, the standard for accruing safety expenses shall be raised from 2% to 2.35. 2. For the part of the operating income exceeding 10 million yuan to 0.1 billion yuan in the previous year, the provision standard for safety expenses was raised from 1% to 1.25%. 3. If the operating income of the previous year exceeded 0.1 billion yuan to 1 billion yuan, the standard for the provision of safety expenses was raised from 0.2 to 0.25. (VII) standards for extraction of oil and gas extraction enterprises in separate columns and subdivisions 1. The standard for extracting the safety cost per unit output of oil and natural gas is: 20 yuan per ton of crude oil and 7.5 yuan per thousand cubic meters of raw gas; 2, underground gas storage enterprises in accordance with the previous year's operating income of 1.5 extraction; 3, drilling, geophysical exploration, logging, logging, downhole operations, oil construction, offshore oil engineering and other enterprises in accordance with the total cost of the project or project 1.7. (VIII) new civil explosives production (section 10 civil explosives production enterprises), power production and power supply enterprises (section 12 power production and supply enterprises) extraction standards. Expanding the use of 3. safety production costs The Measures incorporate the following new elements into the scope of expenditure use: (I) the construction of emergency rescue team and the preparation and revision of emergency plan; (II) safety risk classification control and accident hidden danger investigation and rectification expenditure, mechanization, intelligent construction, safety; (III) production information construction, operation and maintenance and network security expenditure; (IV) safety production liability insurance expenditure; Incentive expenditure for (V) employees to discover and report potential accidents; In addition, the scope of use of safety costs for coal production enterprises has increased: Expenditure on implementing anti-scour measures in (I) impact ground pressure mines; (II) intelligent upgrade expenditure; (III) the promotion and application of new equipment such as coal mine intelligent equipment and coal mine robots; The scope of use of safety costs for production enterprises in non-coal mining enterprises has increased: (I) anti-caving top sheet help prevention facilities and equipment, tailings reservoir sales expenses. The scope of use of safety costs for production enterprises in transportation enterprises has increased: (I) railway and urban rail transit disaster prevention monitoring and early warning equipment and railway perimeter intrusion alarm system, railway dangerous goods transport safety monitoring equipment expenditure. Optimization of Management Mechanism of 4. Safety Production Cost 1, simplify the security costs of the delay, less mention of the approval process. 2, the use of enterprise security expenses plan and extraction of the use of the use of no longer for the record requirements. 3, safety production costs from "special account accounting" to "special accounting". 4, the year's provision for security costs is insufficient, the excess from "according to the normal cost channels" to "year-end supplement". 5. Newly-built enterprises and enterprises that have been put into operation for less than a year are further clarified as "the safety production expenses of the enterprise in the current year shall be paid according to the facts, and the end of the year shall be calculated and extracted according to the prescribed standards based on the operating income of the current year". 6. If the balance of the enterprise's production safety expenses at the beginning of the month reaches three times or more of the amount accrued in the previous year, the withdrawal of the enterprise's production safety expenses shall be suspended from the current month until the balance of the enterprise's production safety expenses is less than three times the amount accrued in the previous year. Withdrawal. 7. If the actual use of production safety expenses in the current year is less than 60% of the amount to be accrued in the current year, in addition to information disclosure according to regulations, it shall also submit a written explanation to the people's government at or above the county level before the end of April of the following year, in accordance with the territorial supervision authority, to the department responsible for production safety supervision and management, which has been reviewed by the board of directors, shareholders' meeting and other institutions. 8. Emergency management departments at or above the county level are required to incorporate the extraction and use of production safety expenses of enterprises in the region into regular statistical analysis.

2022-12-20

Viewpoint | A brief discussion on the development of carbon emissions trading in the EU and China

1. EU reaches interim agreement on carbon border adjustment mechanism (CBAM) On the morning of December 12, the European Commission, the European Council and the European Parliament held the fourth round of tripartite consultations on the EU Carbon Border Adjustment Mechanism/CBAM. In the early hours of the 13th, negotiators from the EU Council and the European Parliament reached an interim and conditional agreement on CBAM. The agreement needs to be confirmed by the ambassadors of EU member states and the European Parliament, and finally adopted by the EU Council and the European Parliament. CBAM is one of the key elements of the EU Fit for 55 (55% carbon reduction) package. In December 2019, the European Commission formally proposed in the European Green Agreement that the integrity and effectiveness of its own climate policy should be avoided by imposing tariffs on imported goods whose carbon emissions during the production process do not meet EU standards. "Carbon leakage" has been destroyed, while also protecting the competitiveness of EU companies. The European Council set a target for the EU to cut its greenhouse gas emissions by at least 55 percent by 2030 compared to 1990 levels and achieve carbon neutrality by 2050, which is binding on the EU and its member states. In order to achieve these goals, the EU needs to develop new rules and new legislation, and member states take concrete measures to reduce carbon emissions and make the green transition a reality. 2. EU Fit for 55 package in legal form to promote carbon neutrality In July 2021, the EU released the Fit for 55 (55% carbon reduction) package as a set of legislative proposals and amendments to existing EU legislation, which will help the EU reduce its net greenhouse gas emissions and achieve climate neutrality. Its contents include 12 new bills such as expanding the EU carbon market, stopping the sale of fuel vehicles and expanding the proportion of renewable energy, which will have a wide impact on a global scale. Referring to the official website of the European Parliament, the author made an overview of Fit for 55 (55% carbon reduction) plan as follows: Since the adoption of the CBAM programme by the European Parliament on 22 June 2022, the Council of the European Union, the European Parliament and the European Commission have held three consultative meetings on 11 July, 4 October and 8 November respectively. Regarding how the EU will turn its climate targets into law, referring to the official website of the European Parliament, the author makes the following flowchart: 3. EU CBAM Application Overview The CBAM aims, in full compliance with international trade rules, to prevent the EU's greenhouse gas reduction efforts from being offset by increasing emissions outside its borders by shifting production to non-EU countries that are less robust than the EU in combating climate change, as well as to prevent increased imports of carbon-intensive products. Designed to operate in parallel with the EU Emissions Trading System (EU ETS), the CBAM will gradually replace the existing EU mechanism to address the risk of carbon leakage, in particular the free allocation of EU ETS allowances. Jozef Síkela, Minister of Industry and Trade of the Czech Republic, which holds the rotating EU presidency, said that CBAM is an important part of the EU's climate action. The mechanism promotes non-EU businesses to export goods to the EU that meet the high climate standards of the 27 EU member states, which will encourage the EU's partners in the world to join the EU's climate efforts. Regarding the products and industries covered by the new rules, CBAM will initially cover some of the most carbon-intensive industries and products, such as steel, cement, fertilizers, aluminum, electricity and hydrogen, indirect emissions under certain conditions, and a proportion of downstream products, such as screws, bolts and similar items of iron or steel. Under the interim agreement, CBAM will apply from October 2023, with a transition period. The initial CBAM was relatively streamlined, designed to collect data and largely applied only to reporting obligations. The follow-up CBAM will continue to improve and phase out the free quota under the EU carbon emission system (ETS), that is, in international trade, companies need to purchase corresponding carbon credits. Currently, there is no agreement on phasing out free quotas for the CBAM industry. CBAM also has a protection exemption mechanism-countries that are consistent with EU emission reduction standards will not be subject to carbon tariffs, but the country should have an exact carbon trading price. Development Status and Vision of China's Carbon Emissions in 4. China is the largest carbon emission country in the world, and the application of CBAM will have a great impact on China's export trade. Mei Dewen, general manager of the Beijing Green Exchange and secretary-general of the Beijing Green Finance Association, said that compared with the EU carbon market, China's carbon market is characterized by small transaction scale, low transaction prices, lack of liquidity, and weak investment and financing functions. The establishment of a more large-scale and liquid green financial system, especially the carbon market, can reduce costs, improve efficiency, alleviate the challenges faced by China's carbon market, and achieve carbon peak and carbon neutrality. China launched its National Emissions Trading System (China ETS) in July 2021, making it the world's largest emissions trading system. ETS puts a price on carbon emissions. It is an important part of China's plan to use market mechanisms to achieve carbon peak in 2030 and net zero emissions in 2060. Climate legislation is an important legal guarantee for countries to achieve the goal of carbon peak and carbon neutrality. On December 31, 2020, the Ministry of Ecology and Environment issued the Measures for the Administration of Carbon Emissions Trading (Trial), which will come into effect on February 1, 2021. The evaluation standards for key greenhouse gas emission units, the total amount of carbon emission allowances Set and allocation, emission trading entities, as well as emission verification and quota clearance, supervision and management, and penalties for breach of contract. The national unified carbon trading market was officially opened, and the carbon emissions trading system was officially launched. On July 5, 2022, the State Council's 2022 Legislative Work Plan issued by the General Office of the State Council clearly listed 16 administrative regulations to be formulated and revised, including the Interim Regulations on the Administration of Carbon Emissions Trading drafted by the Ministry of Ecology and Environment. The promulgation of the regulations will standardize the trading of carbon emission rights, strengthen the control and management of greenhouse gas emissions, promote the realization of the peak goal and neutralization vision of carbon dioxide emissions, promote the transformation of economic and social development to green and low-carbon, and promote the construction of ecological civilization. Externally, China should actively participate in the formulation of global climate change rules and international carbon pricing rules, maintain the WTO most-favored-nation treatment principle and the principle of national treatment, and carry out extensive international cooperation. The European Union has made some breakthroughs and achievements in carbon reduction and energy saving. China can learn from its carbon policy, accept the EU climate change rules differently from the basic national conditions, regulate the carbon emission trading market action by law, clearly unify the carbon price system and accounting rules, and establish a carbon system suitable for climate change to achieve the goal of carbon neutrality. China's carbon trading market is in its infancy, and there is a certain gap between China's carbon trading market and the European Union and other relatively mature markets. However, under the guidance of the government's macro-control, it is believed that China's carbon market is in the ascendant and has a bright future.

2022-12-20

Viewpoint... The referee path and legal risk prevention of circular financing trade.

Introduction There is no legal and normative definition of financing trade, which is in the process of market economy operation, small and medium-sized enterprises in order to solve the difficulties of the source of funds, through a series of appearance of legal forms to achieve the purpose of financing. Based on different means and paths, the mode of financing trade is also divided into different types, of which the more common is the circular financing trade. Over the years, China has adopted a relatively strict regulatory model for non-financial enterprises to lend funds abroad, coupled with the low tide of economic development in recent years, enterprises involved in financing trade are facing increased risks, and the entire transaction chain is on the verge of thunderstorms. This paper intends to analyze the different adjudication paths of the court's disputes arising from circular financing trade in practice, and put forward its own suggestions on how to prevent such legal risks. The concept of 1. circular financing trade. Under normal circumstances, small and medium-sized enterprises as financiers are small in scale and lack of assets, so it is difficult to obtain loans from banks and other financial institutions. However, state-owned enterprises or listed companies with strong financial strength and high credit rating can achieve performance growth and complete task assessment, and the intermediate party can also achieve performance growth or extract part of the expenses from it. Therefore, financing trade has become a bridge to meet the needs of all parties. This transaction model has the advantages of "low threshold, fast speed, and flexible transaction", and its business scale continues to expand. After the country gradually relaxes the restrictions on capital lending between enterprises, It is still the path chosen by some enterprises for financing. Circular financing trade refers to the financing parties, funders and intermediary enterprises with capital needs to enter into contracts for the sale of goods, through the mutual issuance of receipt confirmations and other forms to achieve the concept of the flow of goods, and ultimately achieve the purpose of financial communication. For example (Figure 1) is that Company A (financier) sells the goods to Company B (intermediate party), Company B sells the goods to Company C (funder), Company C sells the goods back to Company A, and the payment (funds) is paid by Company C to Company B, Company B pays to Company A, and Company A returns to Company C. In view of the many trading practices in the market, the academic circles have summarized the characteristics of circular financing trade and reached a basic consensus, including: 1, the trading chain cycle is closed. The flow of goods starts from the financier, through the intermediate party, the funder, and finally reaches the financier itself or the enterprise associated with the financier, the flow of funds starts from the funder, and finally the financier or the enterprise associated with it returns to the funder, showing the characteristics of the financier's "self-buying and self-selling. 2, the goods do not actually flow. Since only formal sales contracts are signed between the parties, the substantive purpose is to realize the borrowing of funds. In order to avoid the high transportation, storage and other expenses required for the operation of goods, most of the parties use written documents such as receipt confirmation documents to realize the outward circulation of goods. The delivery time interval recorded in some documents is too short, which does not conform to the objective reality of bulk cargo transportation, indicating that the goods do not transfer or even exist. 3, the transaction link deviates from the general concept of market economy. In order to leave a profit margin for the intermediary or financier, the funder usually sells the goods at a low price and buys them at a high price, which deviates from the normal business behavior of the profitable entity. 4, the content of the sales contract is highly consistent. The parties have agreed in advance on the various processes of the goods transaction, which are reflected in a high degree of consistency in the content of the contract, the type and quantity of the subject matter, the time of signing, etc. The Referee Path of 2. Circular Financing Trade The law does not provide a fixed basis for adjudication of circular financing trade disputes between enterprises, and courts in different periods and regions have different adjudication philosophies, roughly forming the following adjudication paths: The contract of sale and loan between the parties to the (I) is null and void. For example, the bulletin case (2015) issued by the Supreme People's Court, Minti Zi No. 74 civil judgment. Regarding the sales contract signed between the parties in the case, the court held that Rizhao Port Transportation and Sales Department (investor) and Shanxi Coking Coal Company (intermediate party), Shanxi Coking Coal Company and Zhaoqing Company (financier) respectively signed the Coal Purchase and Sales Contract with the same subject matter, quantity, quantity index, delivery time, delivery port, delivery method, quality standard and quantity acceptance, with Zhaoqing Company as the final supplier, in fact, through Shanxi Coking Coal Company as an intermediary, in the form of coal sales indirectly from the Rizhao Port Transportation and Marketing Department to obtain payment, Shanxi Coking Coal Company to obtain a price difference of 13 yuan per ton. The transportation and marketing department of Rizhao Port signed a sales contract with Zhaoqing Company to resell the purchased coal to Zhaoqing Company at a price of 533 yuan per ton, thus obtaining a price difference income of 10 yuan per ton. Through the above three transactions, the transportation and marketing department of Rizhao Port, Shanxi Coking Coal Company and Zhaoqing Company formed a closed circular transaction with the same target. Zhaoqing Company is both a seller and a buyer, selling at a low price and buying at a high price, it knows that in this kind of circular trading is bound to be damaged, the more transactions, the greater the loss, but still engaged in related transactions, and as a for-profit legal person status is obviously inconsistent, contrary to commercial common sense, enough to make people have reasonable doubts about the authenticity of the transaction. Such unusual buying and selling is in fact a legal relationship between enterprises in the form of buying and selling. The contract of sale signed between enterprises for this purpose is a false expression of intention jointly implemented by the parties and shall be deemed invalid. In the actual legal relationship between enterprises, the court held that the Rizhao Port Transportation and Marketing Department did not have the qualifications to engage in financial business, but to lend as a regular business, the actual operation of financial business, contrary to the relevant financial regulations and judicial policies. Shanxi Coking Coal Company borrowed money from Rizhao Port Transportation and Marketing Department in the form of trading, not for production and business needs, but for the purpose of lending to Zhaoqing Company for profit. Therefore, the loan contracts actually formed in the form of sale between the Rizhao Port Transportation and Marketing Department and Shanxi Coking Coal Company, Shanxi Coking Coal Company and Zhaoqing Company shall be deemed invalid. As an intermediary, the pallet enterprise is not borrowing for production and business needs, but for the purpose of re-lending for profit, so the loan contract should also be considered invalid. The contract of sale between the parties to the (II) is invalid, and the legal relationship between the loan is valid. For example, Hunan Provincial Higher People's Court (2021) Xiangmin Final Civil Judgment No. 449. With regard to the validity of the sales contract in this case, the court held that there was no real evidence of the goods transaction in this case, and that none of the parties had been able to submit actual transaction documents such as coal entry rail scales and goods storage records to perform the contract in question. There are many paradoxical aspects in the sales contract involved in the case. Shanxi Energy Investment (financier and final consignee) is located in a large coal-producing province, but it is far away from Xingang Company (investor) to purchase coal, and Guizhou Hengli and Inner Mongolia Youtai (intermediate party) are used as transaction chains, which obviously increases transaction costs, which is contrary to the practice of minimizing transaction costs and maximizing profits in normal commercial transactions. The price agreement for coal of the same type and specification in the same period of time involved in the contract is obviously unreasonable, and Shanxi Energy Investment has the situation of buying high and selling low. Combining various factors, it can be concluded that the parties in this case are through the signing of a contract for the sale of goods that is not true. With regard to the legal relationship of lending in this case, the court held that in commercial trials, the nature and effect of inter-enterprise lending hidden in circular trade should be distinguished. For those who do not have the qualifications to engage in financial business, but actually operate the lending business and use the proceeds of lending as the main source of profit for the enterprise, the loan contract shall be deemed invalid. For temporary capital lending between enterprises that do not have the qualifications to engage in financial business for the needs of production and operation, if the party providing the funds is not in the ordinary business of capital finance and does not violate the mandatory provisions of national financial control, the loan contract shall not be deemed invalid. The loan involved in this case is a temporary inter-enterprise lending, there is no evidence to prove that Hinkang Company is a professional lender, and there are no other statutory invalid circumstances, so the lending between the parties should be considered valid. The contract of sale between the (III) parties is valid. For example, Guangxi Zhuang Autonomous Region Higher People's Court (2020) Gui Min Zhong No. 457 Civil Judgment. In this case, the court held that the "Goods Sales Contract" signed by Weining Company (the investor) and Baimei Company (the intermediary) was the true intention of both parties, and the content did not violate the prohibitive provisions of laws and regulations. The sales contract relationship between the company is established, legal and effective, and both parties should abide by it. Weining Company submitted the Transfer of Property Rights and the Coal Settlement Statement to confirm the fact of the delivery of the goods it claimed, and Bai Coal Company could not provide evidence that the Coal Weining Company on the Transfer of Property Rights did not meet the conditions for delivery, which was confirmed in the Coal Settlement Statement. Accordingly, Weining Company has fulfilled its obligation to deliver the goods, both parties have confirmed the amount owed, and Baimei Company has not raised any objection to the past transactions of the same nature between the two parties, and the sales contract between the parties is valid. (IV), combined with the above-mentioned cases, from the perspective of vertical development, with the prosperity and activity of the market economy, the provisions of the legal provisions for commercial acts are also increasingly improved and perfected, and the judge's concept of adjudication for circular financing trade disputes is also keeping pace with the times: Article 11 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases: "Private lending contracts concluded between legal persons, unincorporated organizations and between them for production and business needs, except for the circumstances stipulated in Articles 146, 153, 154 of the Civil Code and Article 13 of these Provisions, where the parties claim that the private lending contract is valid, the people's court shall support it." Article 143 of the Civil Code: "A civil juristic act is valid if it meets the following conditions: ...... (III) does not violate the mandatory provisions of laws and administrative regulations, nor does it violate public order and good customs." Article 146: "A civil juristic act performed by the perpetrator and his counterpart with a false expression of intent shall be null and void. The effect of a civil juristic act with a false expression of intent shall be dealt with in accordance with the relevant legal provisions." First of all, the contract of sale signed between the parties is no longer simply considered invalid, but the judge needs to synthesize the evidence of the whole case, fully grasp the appearance of the case conditions and the subjective intention of the parties to make a judgment, fully respect the autonomy of the parties. Secondly, even when the sales contract is deemed invalid due to false intention, the inter-enterprise loan contract can only be deemed invalid when the inter-enterprise loan contract is included in the scope of private lending and the validity of the inter-enterprise loan contract concluded for the needs of production and operation is clearly recognized. 3. to prevent the legal risks of circular financing trade. As an intermediary or investor of circular financing trade, an enterprise is involved in a dispute. If the contract is found to be valid, there is a risk of being judged to pay the goods or pay for the goods; if the contract is found to be invalid, the court may follow The provisions of Article 157 of the Civil Code require all parties to return to each other and bear corresponding responsibilities according to the size of their respective faults. Disputes caused by financing trade will not only cause property losses to enterprises, but also lead to adverse effects such as a decline in corporate credit rating and derogation of business reputation, and may even be held criminally responsible for the crime of falsely issuing special VAT invoices and contract fraud. In order to avoid the legal risks of circular financing trade, the following measures are recommended: (I) standardize the business behavior of enterprises themselves. Although financing trade can obtain rich interest income and performance growth for enterprises, but behind the income is also a huge risk and crisis, enterprises should check the source, limit the proliferation of financing trade business. (II) optimize the enterprise operation and management mode, strengthen the internal wind control ability, strengthen the legal awareness. In view of the trade risk of circular financing, enterprises should avoid loopholes and unfavorable clauses at the beginning of the conclusion of the contract, strictly control the circulation of goods, do a good job in the process management of goods into and out of the warehouse, carefully issue receipt documents, timely carry out the popularization of legal knowledge, and actively organize middle and senior management and grass-roots staff to learn the law. (III) establish a partner credit rating system. For different trading objects and partners, we have an in-depth understanding of their cooperation intentions, and have a clear idea of their economic strength, business scope and scale background. In the process of performing the contract, the (IV) actively fixes and collects evidence, plans the litigation strategy in advance, and actively provides evidence on the real situation of the circulation of goods and payment, which can not only help the judge to find out the facts of the case, but also help to strive for a favorable judgment result. Establish a post-event accountability system to pursue legal responsibility for the illegal and criminal acts of relevant personnel.

2022-12-20

Viewpoint... Analysis of the identification of equity holding relationship and risk prevention and control.

Shareholders, in the modern Chinese dictionary, are defined as: the shareholders of a joint stock company, have the right to share in the company's earnings and be responsible for the company's debts. Also refers to investors in other business enterprises in partnership. Article 3, paragraph 2, of the Company Law of the the People's Republic of China stipulates that the shareholders of a limited liability company shall be liable to the company to the extent of the amount of capital contribution they have paid, and the shareholders of a limited liability company shall be liable to the company to the extent of the shares they have subscribed. Article 4 stipulates that the shareholders of the company shall enjoy the rights of asset income, participation in major decision-making and selection of managers in accordance with the law. From the above, it can be seen that shareholders are actually the actual owners of the legal person of the company, but in real life, there is a situation in which the actual capital contributor is unwilling to show his identity as a shareholder of the company for various reasons or restrictions, but holds the shares of the company in an "incognito" manner. The concept of 1. equity holding. (I) equity nominee The so-called equity holding, in essence, refers to the actual investor of the company through the nominal investor to reach a certain agreement, by the nominal investor to the company to pay or pay-in capital, and on the surface by the nominal investor to enjoy the rights of shareholders, to fulfill the obligations of shareholders. However, in most cases, the nominal contributor still has to follow the "command" of the actual contributor to exercise shareholder rights, and ultimately the actual contributor to obtain the company's dividends and bear the corresponding responsibility. (II) actual contributor The actual investor can also be called an anonymous shareholder, which refers to the person who enjoys the rights of the company's shareholders through the real subscription and payment of the company's equity. Because his identity (name) is not recorded in the company's articles of association or the register of shareholders, he cannot find any capital contribution information in the relevant information system of market supervision. The actual contributor has three obvious characteristics: first, the actual contributor through the real contribution or the subscription of the company's equity. Nominal shareholders of (III) The so-called nominal shareholder can also be called a prominent shareholder, this kind of title is essentially derived from the concept of the actual investor, refers to the person who does not really contribute or contribute capital, but is recorded in the articles of association or the register of shareholders, and through the market supervision related information system as a shareholder of the company. The reason why it is recorded in the articles of association, the register of shareholders and the relevant information system is that it has reached an agreement with the actual funder to hold equity, assume shareholder obligations and exercise shareholder rights on behalf of the actual funder. The determination of 2. equity holding relationship. According to the Supreme People's Court on the application<中华人民共和国公司法>The provisions of the (III) on certain issues (hereinafter referred to as "interpretation III of the Company Law") stipulates in the first and second paragraphs of Article 24: "the actual investor of a limited liability company shall conclude a contract with the nominal investor, stipulating that the actual investor shall contribute capital and enjoy investment rights and interests, and the nominal investor shall be the nominal shareholder. If there is a dispute between the actual investor and the nominal shareholder over the validity of the contract, if there is no invalid circumstances stipulated by law, the people's court shall determine that the contract is valid. If a dispute arises between the actual contributor and the nominal shareholder as stipulated in the preceding paragraph over the ownership of the investment rights and interests, and the actual contributor claims the rights against the nominal shareholder on the ground that it has actually fulfilled its obligation to contribute, the people's court shall support it. If a nominal shareholder denies the rights of an actual contributor on the grounds that the company's register of shareholders is recorded or registered by the company's registration authority, the people's court shall not support it. From the provisions of the above judicial interpretation, there are two main elements of the establishment of the equity holding relationship, namely, the equity holding agreement and the actual funder to fulfill the obligation of capital contribution. (I) Shareholding Agreement 1. The shareholding relationship is formed on the basis of the entrustment relationship between the parties, the entrustment relationship is the legal act of both parties, the parties need to have the common intention to establish the entrustment relationship, sign the entrustment contract or the shareholding agreement, clarify the rights and obligations between the two and the liability for breach of contract. In judicial practice, the people's court mostly judges the true meaning of the parties according to the name, substantive content and performance of the contract. The people's court held that the retrial applicant company a (defendant of first instance, appellee of second instance), company B (third party of first instance, appellee of second instance) and Yu mou (plaintiff of first instance, appellee of second instance) claimed to be a dormant shareholder due to a dispute over confirmation of shareholder qualification with company c (third party of first instance) and Li mou, third party of first instance, relevant evidence is required to prove that there is a legal and valid shareholding agreement between it and the nominee. Company C, Company B and Li, in the capacity of Party A, jointly sign a Letter of Certificate with Yu (Party B), which reads: "Party A and Party B jointly establish Company A, each with 50% equity. Party B's equity is temporarily held by Party A for the convenience of project operation". The letter is stamped with the official seals of Company C and Company B, and is signed by Li and Yu. The Letter of Proof does not exist as invalid under Article 52 of the the People's Republic of China Contract Law. The 2017 "Catalogue for the Guidance of Foreign Investment Industries" applicable at the time of the second-instance judgment and the 2019 "Catalogue for the Guidance of Foreign Investment Industries" applicable at the time of the second-instance judgment did not include the iron ore and other mine rights and interests of Company A involved in the case as prohibited items for foreign investment. Therefore, there is no situation that the Certificate Letter cannot be lifted due to the subsequent prohibitive provisions on foreign access. In summary, the second-instance judgment found that the Letter of Proof was true, valid and correct, and there was nothing improper about the existence of a true and valid shareholding agreement between the parties. In the dispute over the confirmation of shareholder qualification between Wang (plaintiff) and Liu (defendant) and A Co., Ltd. (third party), the people's court held that the three "holding agreements" signed by the plaintiff and the defendant were the true intention of both parties, and were valid because they did not violate the relevant provisions of the company law. The three "proxy agreement" also stipulated that the plaintiff and the defendant could unilaterally terminate the proxy agreement. The plaintiff exercised the unilateral termination right by filing a lawsuit, which was in line with the law and the agreement of the "proxy agreement". The defendant had no objection to this, and the people's court supported it. According to the agreement of the "proxy agreement" and the evidence provided by the plaintiff, including bank cash payment documents, equity transfer agreements, bank customer receipts, receipt receipts, shareholders' meeting resolutions, etc., combined with the change of equity in the industrial and commercial registration information of A Co., Ltd., a complete chain of evidence can be formed, proving that 20.56 of the equity registered by A Co., Ltd. under the defendant (corresponding to the capital contribution of 24.0552 million yuan) is invested and enjoyed by the plaintiff. The plaintiff now requires the defendant to return the equity held on behalf of the plaintiff and change the registration to the plaintiff's name, in accordance with the law. In addition, A Limited and other shareholders recognized the plaintiff's actual investment and shareholding ratio, and agreed to change the registration, so they supported the plaintiff's claim. 2. In the absence of a written shareholding agreement, the shareholding relationship can also be established through evidence such as investment receipts and details of shareholders' investments. The applicants for retrial are Company A (defendant of first instance and appellant of second instance) and Respondent Yang (plaintiff of first instance and appellant of second instance) and Company B (defendant of first instance), Song (defendant of first instance), Zhang (defendant of first instance), Company C (defendant of first instance), Zhao 1 (defendant of first instance), Zhao 2 (defendant of first instance) and Wei (defendant of first instance), in the dispute over the confirmation of shareholder qualification of Company D (the third party) in the first instance, the people's court held that although Yang was not registered as a shareholder in the business registration information of Company B, Company B issued a receipt to Yang with the content of "receipt of investment funds", as well as two financial reports of Company B and "Details of Investments of Shareholders", etc, all prove that Yang is the actual investor of Company B, thus confirming Yang's shareholder qualification and equity share. In the case of retrial applicant sun mou (defendant of first instance and appellant of second instance) and respondent Zhang mou (plaintiff of first instance and appellant of second instance) and respondent limited company (defendant of first instance and appellant of second instance), the people's court held that although there was no formal shareholding agreement between Zhang mou and sun mou, they also held different opinions on the existence of oral shareholding agreement, however, when a limited company is established, it should have common commercial interests to consider, on the consistency of commercial interests between the two sides can be judged to have the agreement of equity holding, in line with the subjective conditions for the establishment of the legal relationship of equity holding. After the establishment of the company, Zhang, directly or indirectly through others, has more control over the development of the company's business, capital and financial control than Sun, which is in line with the objective conditions for the establishment of the legal relationship of equity holding, and can be determined to have formed a de facto legal relationship of equity holding. Through the above comprehensive analysis, the characteristics of the establishment of the legal relationship between Zhang and Sun are more obvious and more convincing, and can form a relatively complete chain of evidence and make a reasonable explanation, so Zhang's claim should be supported. (II) actual contribution Another key point of the equity-holding relationship is the issue of actual capital contribution. In the actual process, regarding the payment between the parties, the actual investor often claims that it belongs to the company's capital contribution, but it cannot completely rule out the possibility that the two parties are borrowing, purchasing products or services, which requires screening in combination with other evidence., Make it form a complete chain of evidence, so as to judge whether the money belongs to entrusted capital. Effect of 3. Shareholding (I) the effect of equity representation in general The provisions of Article 24 of China's "Interpretation III of the Company Law" affirm the validity of the equity holding agreement within certain limits, and in judicial precedents, the Supreme People's Court has determined that the equity holding agreement is valid in principle, with the aim of protecting the legitimate rights and interests of the actual investors. Generally speaking, if the equity holding relationship does not violate the mandatory provisions of laws and administrative regulations, does not violate public order and good customs, does not collude maliciously, and damages the legitimate rights and interests of others, it will generally be considered valid. It is worth noting that in some cases, the people's court has found that the shareholding is invalid or that it is valid but violates the non-effective mandatory provisions, resulting in illegality. Special circumstances of (II) equity holding. 1. The shareholding of the proposed listed company is invalid. The Measures for the Administration of Initial Public Offering and Listing of Shares stipulate that the shares of the issuer must be clear, and there can be no material disputes over the ownership of the shares of the issuer held by the controlling shareholder and the shareholders controlled by the controlling shareholder and the actual controller. The Measures for the Administration of Information Disclosure of Listed Companies stipulates that the obligor who fulfills the obligation of information disclosure shall disclose in accordance with the law, and the disclosed information shall also meet the requirements of authenticity, completeness and accuracy, and there shall be no false, misleading or material omissions. The above regulations are important requirements for the supervision of listed companies. If the equity of the promoters of the proposed listed company is not clear, then other supervision and management measures such as information disclosure, executive avoidance, and other supervision and management measures will also lose their effect, and the result will damage other non-specific The legitimate rights and interests of investors will endanger the trading order of the stock trading market, and financial security and social public interests will inevitably be damaged. Therefore, the shares of the issuer of the proposed listed company should be real, and it is not allowed to hide the real shareholders in the process of issuing the shares, and if this happens, the shares shall not be listed and issued. 2. The shareholding of the insurance company is invalid. Article 31 of the Measures for the Administration of Equity in Insurance Companies stipulates that investors of insurance companies shall not entrust equity to a third party or accept the entrustment of a third party to hold equity in an insurance company. The provisions of this article are from the starting point of strengthening the supervision of the equity of insurance companies, maintaining the operation of insurance companies, and then protecting the rights and interests of the insured and investors, so the act of holding the equity of insurance companies is prohibited. Although the "Measures for the Administration of Equity in Insurance Companies" is a departmental regulation promulgated by the China Insurance Regulatory Commission (now revoked), it has the same legislative purpose as the "the People's Republic of China Social Insurance Law", that is, to maintain the national financial order and social economy Order and protect the public interests of the society and the legitimate interests of the insured, it is prohibited to hold the equity of insurance companies on behalf of others. The "Measures for the Administration of Equity of Insurance Companies" do not conflict with laws and regulations, and the provisions prohibiting the holding of equity of insurance companies have substantial legitimacy and legality. In this regard, the relevant judicial decisions also agree with the effectiveness of Article 31 of the measures for the Administration of Equity of Insurance companies, and the violation of the provisions of the measures for the Administration of Equity of Insurance companies on the prohibition of holding equity of insurance companies, to a certain extent, has the same legal consequences as a direct violation of the Insurance Law and other laws and administrative regulations, therefore, the equity holding agreement should be deemed invalid. 3. The determination of the shareholding of state civil servants. Article 59 (16) of the "the People's Republic of China Civil Servants Law" stipulates that civil servants shall not engage in or participate in profit-making activities in violation of relevant regulations, and hold concurrent positions in enterprises or other profit-making organizations. The purpose of this paragraph is to regulate that civil servants should perform their official duties fairly and impartially in accordance with the law, prevent civil servants from abusing their power to engage in or participate in profit-making activities, and provide convenience for certain enterprises. At present, most judicial decisions and opinions hold that paragraph (16) of Article 59 of the the People's Republic of China Civil Service Law belongs to the administrative prohibition norm in nature and does not belong to the effective compulsory norm. Therefore, engaging in or participating in profit-making activities in violation of this regulation does not of course lead to the invalid consequences of the equity holding agreement. Although the civil servants engaged in or participating in profit-making activities can enjoy the property rights and interests of the corresponding equity under the equity holding agreement, however, it cannot be registered as a shareholder of the company. Of course, if there is a prohibition to evade laws, regulations and other provisions of the equity holding, the equity holding agreement should be deemed invalid. Risks and Countermeasures of 4. Actual Investors Risk of (I) the actual contributor 1. Risk of identification of actual contributors Because the equity holding agreement may be found to be invalid, or the people's court does not recognize the equity holding relationship between the parties, such as the act of holding the equity of the proposed listed company or the equity of the insurance company in violation of the provisions. Under the above circumstances, there is greater uncertainty in the confirmation of the shareholder identity of the actual contributor, and the exercise of shareholder rights and the sharing of dividends by the actual contributor will be restricted. According to the third paragraph of Article 24 of the interpretation of the Company Law, the actual investor must be "named" with the consent of more than half of the other shareholders of the company, and request the company to change, issue a certificate of capital contribution, record the actual investor in the register of shareholders and the articles of association of the company, and handle the registration of industrial and commercial changes. If more than half of the other shareholders of the company do not agree, the people's court will not support the actual investor's request for the company to handle the above matters. 2. Risks arising from personal reasons of nominal shareholders If the nominal shareholder has external personal debts that fail to be repaid, or if the individual provides a guarantee to other debtors, the equity held on behalf may be used to repay the debt or assume a guarantee liability,</中华人民共和国公司法>

2022-12-20