Point of View... A brief analysis of whether the transfer of real estate by state-owned real estate enterprises needs to "enter the transaction"

According to everyone's common sense, of course, real estate companies can directly transfer real estate agreements, but in fact, state-owned real estate companies also need to distinguish whether they need to "enter the market for transactions" according to the nature of the house ". According to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (SASAC and Ministry of Finance Order No. 32) (hereinafter referred to as "Order No. 32") and the "Notice on Matters Related to the Transaction and Circulation of State-owned Assets of Enterprises" issued by SASAC in May 2022 (Guo Zi Fa Property Regulation [2022] No. 39) (hereinafter referred to as "Document No. 39") both involve the regulation of the transaction and, from the aforementioned system, it can be seen that the transaction of state-owned assets is based on the "entry transaction" as the main applicable principle. This article will be based on the above system to explore whether the transfer of real estate state-owned real estate development enterprises need to "enter the transaction". Does the 1. apply the provisions of Order 32 on "entry transactions? Article 2 of Decree No. 32: "The transaction of state-owned assets of enterprises shall abide by national laws, regulations and policies, which is conducive to the layout and structural adjustment and optimization of the state-owned economy, give full play to the role of the market in allocating resources, and follow the principles of equal compensation, openness, fairness and justice. The established property rights trading institutions shall be openly conducted, and the national laws and regulations shall follow their provisions." Therefore, in principle, the transaction of state-owned assets of enterprises should be carried out openly in the property rights trading institutions established in accordance with the law, and the provisions of national laws and regulations shall prevail. However, it is not clearly stipulated that the housing assets involved in the normal operation of state-owned real estate enterprises can be transferred by direct agreement. In addition, according to the SASAC's reply on related issues, this paper holds that the transfer of assets involved in the normal operation of state-owned enterprises does not apply to Order 32 for "entry transactions". The specific reply of the relevant SASAC is as follows: By analogy, it can be seen that the transfer of housing assets developed by state-owned real estate enterprises does not belong to the "entry transaction" that needs to be carried out in accordance with the provisions of Decree No. 32, but needs to be determined according to the nature of the housing. That is, commercial houses listed under the inventory of real estate development enterprises do not need to be "traded in" when they are transferred, because the sale of commercial houses developed by them is a normal business operation, while the housing assets listed under the fixed assets of state-owned real estate development enterprises should be implemented in accordance with the relevant provisions on the transfer of enterprise assets in order No. 32, which requires "trading in the market". Does the 2. "enter the market" according to document 39 "? Document No. 39 is based on Order No. 32, in order to promote the optimization of the layout and structural adjustment of the state-owned economy, help enterprises achieve high-quality development, and strengthen the management of the transaction and circulation of state-owned assets, supplementary provisions are made on the matters involved in the transaction and circulation of state-owned assets of enterprises. The introduction of document No. 39 did not affect the transaction mode of state-owned real estate enterprises, mainly as a supplement to order No. 32. Therefore, whether state-owned real estate enterprises need to enter the market for housing asset transactions still need to refer to Decree 32. To sum up, this paper holds that the commercial housing listed under the inventory of real estate development enterprises does not need to "enter the transaction" at the time of transfer, which belongs to the behavior of normal business operation. Therefore, the requirements of "entering the transaction" under Decree No. 32 should not be applied, and after the promulgation of Circular No. 39, the applicable principle of "entering the transaction" has not changed substantially.

2022-12-15

Point of View... A brief analysis of whether the transfer of real estate by state-owned real estate enterprises needs to "enter the transaction"

According to everyone's common sense, of course, real estate companies can directly transfer real estate agreements, but in fact, state-owned real estate companies also need to distinguish whether they need to "enter the market for transactions" according to the nature of the house ". According to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (SASAC and Ministry of Finance Order No. 32) (hereinafter referred to as "Order No. 32") and the "Notice on Matters Related to the Transaction and Circulation of State-owned Assets of Enterprises" issued by SASAC in May 2022 (Guo Zi Fa Property Regulation [2022] No. 39) (hereinafter referred to as "Document No. 39") both involve the regulation of the transaction and, from the aforementioned system, it can be seen that the transaction of state-owned assets is based on the "entry transaction" as the main applicable principle. This article will be based on the above system to explore whether the transfer of real estate state-owned real estate development enterprises need to "enter the transaction". Does the 1. apply the provisions of Order 32 on "entry transactions? Article 2 of Decree No. 32: "The transaction of state-owned assets of enterprises shall abide by national laws, regulations and policies, which is conducive to the layout and structural adjustment and optimization of the state-owned economy, give full play to the role of the market in allocating resources, and follow the principles of equal compensation, openness, fairness and justice. The established property rights trading institutions shall be openly conducted, and the national laws and regulations shall follow their provisions." Therefore, in principle, the transaction of state-owned assets of enterprises should be carried out openly in the property rights trading institutions established in accordance with the law, and the provisions of national laws and regulations shall prevail. However, it is not clearly stipulated that the housing assets involved in the normal operation of state-owned real estate enterprises can be transferred by direct agreement. In addition, according to the SASAC's reply on related issues, this paper holds that the transfer of assets involved in the normal operation of state-owned enterprises does not apply to Order 32 for "entry transactions". The specific reply of the relevant SASAC is as follows: By analogy, it can be seen that the transfer of housing assets developed by state-owned real estate enterprises does not belong to the "entry transaction" that needs to be carried out in accordance with the provisions of Decree No. 32, but needs to be determined according to the nature of the housing. That is, commercial houses listed under the inventory of real estate development enterprises do not need to be "traded in" when they are transferred, because the sale of commercial houses developed by them is a normal business operation, while the housing assets listed under the fixed assets of state-owned real estate development enterprises should be implemented in accordance with the relevant provisions on the transfer of enterprise assets in order No. 32, which requires "trading in the market". Does the 2. "enter the market" according to document 39 "? Document No. 39 is based on Order No. 32, in order to promote the optimization of the layout and structural adjustment of the state-owned economy, help enterprises achieve high-quality development, and strengthen the management of the transaction and circulation of state-owned assets, supplementary provisions are made on the matters involved in the transaction and circulation of state-owned assets of enterprises. The introduction of document No. 39 did not affect the transaction mode of state-owned real estate enterprises, mainly as a supplement to order No. 32. Therefore, whether state-owned real estate enterprises need to enter the market for housing asset transactions still need to refer to Decree 32. To sum up, this paper holds that the commercial housing listed under the inventory of real estate development enterprises does not need to "enter the transaction" at the time of transfer, which belongs to the behavior of normal business operation. Therefore, the requirements of "entering the transaction" under Decree No. 32 should not be applied, and after the promulgation of Circular No. 39, the applicable principle of "entering the transaction" has not changed substantially.

2022-12-15

Viewpoint | Dispute of "Repentance" after Signing Resignation Agreement

The laborer and the employer reach an agreement on the termination or termination of the labor contract. In order to avoid risks, the employer often signs a clause that "there is no other dispute between the two parties" and wants to settle the case, but it often backfires. 1. the signing of the agreement between the two parties must be legal and voluntary. Article 10 of the (III) of interpretation of the Supreme people's Court on several issues concerning the Application of laws in the trial of Labor dispute cases stipulates: "the agreement reached between the worker and the employer on the termination or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, coercion or taking advantage of the danger of others. It shall be deemed valid. If there is a material misunderstanding or manifest unfairness in the agreement mentioned in the preceding paragraph, and the parties request revocation, the people's court shall support it." According to this provision, the agreement signed by both parties must not only be legal in content, but also voluntary. Legality of content agreed in the agreement The content of the agreement includes specific items such as handling relevant procedures, paying wages, overtime pay, economic compensation or compensation. If the above-mentioned items are not agreed or only some of them are agreed, the agreed items shall be performed in accordance with the content of the agreement. However, if there is a dispute over the unagreed item, it can still be resolved through arbitration or litigation alone. If the content of the agreement violates the mandatory provisions of laws and administrative regulations, the content of the agreement is not only invalid, but the parties can also claim their rights through arbitration and litigation. The signing of 2. agreement shall abide by the principle of punishment. The labor contract termination agreement signed by the employee and the employer is valid as long as it is concluded voluntarily, and there is no fraud, coercion or taking advantage of the danger of others, and does not violate the mandatory provisions of laws and administrative regulations. Therefore, the company and employees agreed that "no other disputes between the two sides" is also valid. However, "no other disputes between the two parties" should be limited to the scope agreed in the agreement. Unless the employee clearly waives this, otherwise, the content not agreed in the contract can still be resolved through arbitration and litigation. Common Agreed Situations and Validity Judgment in 3. Practice In practice, "there are no other disputes between the two parties" in various forms, not only involving the content of the agreement, but also involving the literary expression of the content of the agreement and the mandatory provisions of laws and administrative regulations. There are mainly the following forms: ▲ 1. The termination agreement stipulates that "the company's one-time payment to an employee includes, but is not limited to, economic compensation for the termination of the labor contract, payment in lieu of notice, wages during the existence of the labor relationship, overtime pay, annual leave wages and other payments, there is no dispute between the two parties". The agreement has clearly defined all payments made by the employer to the employee, therefore, the employee shall perform the relevant payments in accordance with the agreement, and it is not possible for the employee to arbitrate or litigate the above payments separately. However, disputes arising from matters such as the handling of resignation procedures can still be resolved through arbitration and litigation. ▲ 2. The termination of the agreement stipulates that "the company shall pay x yuan to an employee in one lump sum, including all compensation, compensation expenses and wages, and there is no other dispute between the two parties". At the end of the agreement, the specific items are agreed, but the qualifier is "all compensation, compensation expenses and wages". In fact, the agreement has already made an agreement on economic compensation, wages and overtime pay. If the employee separately arbitrates and sues for the above-mentioned funds, the above-mentioned expenses cannot be paid. ▲ 3. Dissolution of the agreement stipulates that "the company will pay x yuan to an employee at one time. in addition, the employee voluntarily gives up other expenses and there is no other dispute between the two parties". In this agreement, because the employee explicitly waives other expenses, the employee is not allowed to claim the relevant payment matters, and it is difficult to get support if the employee arbitrates and litigations on the relevant payment. ▲ 4. The termination of the agreement stipulates that "the company will pay x yuan to the employee in one lump sum, and there will be no other disputes between the two parties". The agreement only stipulates that the company will pay a certain amount of money to the employee, but does not stipulate which items the money will include, and there are cases where the agreement is unclear. If an employee sues for an amount such as financial compensation, the employee is required to prove that the amount is not or does not include financial compensation, and the employee's claim may be supported. ▲ 5. The termination of the agreement stipulates that "the company shall pay economic compensation to the employees, wages during the existence of the labor relationship, and overtime pay totaling x yuan, and there is no dispute between the two parties". The agreement stipulates that the amount paid by the employer to the employee shall be economic compensation, wages and overtime pay during the duration of the labor relationship. Both parties shall be bound by the contract for economic compensation, wages and overtime pay during the duration of the labor relationship. Separate arbitration and litigation cannot be supported. However, other items that are not agreed upon, such as double wage differences and economic compensation, can still be arbitrated and litigated separately.

2022-12-14

Viewpoint | Research (I) on Disputes over Year-end Awards

Regarding the year-end bonus, the current laws and regulations do not stipulate how the year-end bonus should be paid. The employer has the right to independently determine whether the bonus is paid, the conditions and the payment standard according to the operating conditions of the unit and the performance of employees. However, the distribution rules formulated by the employer should still follow the principle of fairness and reasonableness. Whether the workers who have left before the year-end bonus can obtain the year-end bonus should be combined with the reasons, time, work performance and contribution to the unit. Comprehensive consideration of various factors. The year-end bonus, as an additional remuneration given to the workers by the employer, whether and how much it is paid, to some extent, belongs to the independent management right of the employer. However, once the year-end bonus is agreed and the laborer meets the established conditions, it becomes an obligation of the employer to pay the year-end bonus according to the contract. 1. Year-end Award and Its Nature Determination (I) year-end bonus is part of the salary Article 4 of the "Regulations on the Composition of Total Wages" of the National Bureau of Statistics clearly stipulates that bonuses are an integral part of total wages; Article 7 stipulates that bonuses are excess labor remuneration paid to workers and labor remuneration for increasing income and reducing expenditure. Article 2 of the "Regulations on the Composition of Total Wages" of the National Bureau of Statistics clearly stipulates that year-end bonuses (labor dividends) fall within the scope of bonuses. Therefore, the year-end bonus is an integral part of the salary. It is a bonus paid by the employer to the laborer at the end of the year through internal rules and regulations or labor contract agreements or other methods according to its own business conditions. (II) year-end bonus is agreed rather than statutory Article 47 of the Labor Law stipulates: "The employing unit shall, in accordance with the production and operation characteristics and economic benefits of the unit, independently determine the wage distribution method and wage level of the unit in accordance with the law." Therefore, the issuance of year-end awards belongs to the scope of the employer's independent management rights, and the law does not force the employer to issue year-end awards. According to whether the distribution is conditional, the year-end bonus is divided into fixed year-end bonus and conditional year-end bonus. Principles to be followed in the distribution of 2. year-end bonus The year-end bonus is usually paid in the following three ways: one is the labor contract agreement; the other is the rules and regulations; the third is that the employer determines the final amount of the year-end bonus for each employee based on the performance of the employee and the company's business performance. In the practice of referees, the two principles of "agreement priority" and "fairness and reasonableness" should be followed in determining whether the year-end bonus should be issued. (I) the principle of "agreed priority" in the distribution of year-end bonus The distribution of year-end bonus belongs to the scope of the employer's independent management right, and the employer may make an agreement with the laborer. If the year-end bonus is agreed in the labor contract and rules and regulations, the employer has the obligation to perform due to the agreement. When the employer should issue the year-end bonus, the worker can claim the legitimate rights and interests according to the agreement. First, workers should advocate the existence of employers to issue year-end bonuses. In practice, many employers do not agree on the year-end bonus in the labor contract, rules and regulations and other written documents of the company, and the distribution of the year-end bonus is comprehensively judged by the employer according to the company's operating conditions and other factors in that year. Although the year-end bonus belongs to the salary, the employer can independently decide all matters concerning the payment of the year-end bonus. Therefore, the employer often denies the year-end bonus in arbitration or litigation. At this time, the worker must provide evidence to prove that there is an agreement on the year-end bonus in the labor contract or rules and regulations. If it cannot be provided, at least the employer must provide evidence that the employer has issued the year-end bonus, otherwise the worker may bear the legal consequences of failing to provide evidence. After the worker proves the fact that there is a year-end bonus, the employer shall bear the burden of proof for the conditions, time, method, amount, excess or deduction of the year-end bonus. Second, whether the agreement on the year-end bonus in the labor contract or rules and regulations is legal, effective and clear. Regarding legality and effectiveness, it mainly refers to whether the content of the year-end bonus in the labor contract or rules and regulations conforms to the labor law and whether the legal procedures are fulfilled. As far as the labor contract is concerned, it mainly refers to whether the employer negotiates with the laborer on the terms of the year-end bonus in the labor contract, whether it explains the relevant terms, and whether the relevant terms exist in the circumstances stipulated in Article 18 of the Labor Contract Law. As far as rules and regulations are concerned, the rules and regulations related to the year-end bonus, as rules and regulations or major matters directly related to the vital interests of workers, shall be formulated and amended in accordance with the provisions of Article 4 of the Labor Contract Law. First, the workers' congress or all employees discuss and put forward plans and opinions. Secondly, negotiate with the trade union or employee representatives on an equal footing. Once again to perform the public notification procedure; Finally, in the implementation of the year-end bonus system, if the trade union or employees have any objection, they can put forward their opinions to the employer at any time, and the two parties shall make public the revision through consultation. With regard to clarity, it mainly refers to whether the matters concerning the year-end bonus in the labor contract or rules and regulations are clear, including the conditions of payment, the time of payment, the method of payment, the amount of payment, the excess or deduction, and so on.

2022-12-14

Viewpoint.......................................................................................

1. Introduction In the field of construction bidding, the contractor's concession clause in the construction contract is usually considered invalid if it deviates from the substantive content of the bidding document. But in the case of illegal subcontracting of the project, illegal subcontracting, the contract itself is invalid because of the violation of the mandatory provisions of the law, then the invalid contract's concession settlement clause can also be used as a basis for settlement? 2. the relevant legal provisions on the invalidity of construction contracts, settlement clauses and the validity of the concession clauses therein. Article 793 of the Contract of the Civil Code The construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project. Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts (I) Article 2 The construction contract for a construction project is invalid, but if the construction project has passed the completion and acceptance, and the contractor requests to pay the project price by reference to the contract, it shall be supported. Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts (I) Article 4 The contractor's illegal subcontracting or illegal subcontracting of construction projects or the act of an unqualified actual builder signing a construction contract with another person in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with the provisions of Article 134 of the General Principles of the Civil Law, confiscate the illegal gains already obtained by the parties. 3. case analysis The current laws and regulations and judicial interpretations have relatively clear provisions on the settlement clauses and concessions in construction contract disputes. However, in the physical object, whether the settlement clauses of invalid contracts can be used as the basis for the settlement of project funds and whether the concession agreement is effective, not only On the basis of legal provisions, it is necessary to combine relevant precedents in practice. After searching the opinions of the Supreme Court and the local courts, the Supreme Court and the local courts have different views on the issue of "the invalidity of the construction contract, the validity of the settlement clause and the concession clause therein: 1. Case No.:(2017) Supreme Famin Shen No. 4509 The Supreme Court's judgment point of view: Based on the actual situation of the case, the original judgment found that Kang Jiu Company received another 21% of the income due to illegal subcontracting in addition to the 10% management fee paid by the foreign language school according to the invalid "Investment and Construction Contract", which was a benefit based on the invalid contract and was against fairness. Accordingly, it was decided that the project funds involved in the case should be settled by 10% on the basis of the audit opinions. 2. Case No.:(2019) Supreme Law Minzong No. 1779 The Supreme Court's judgment point of view: it is determined that in the civil judgment No. 40 of Anhui Higher People's Court (2016) Wanminchu, the contract price is determined: the audit settlement price falls by 8%. First, the agreement is defined as the 8% management fee charged by the general contractor. Because the contract involved is invalid due to illegal subcontracting, the management fee is based on the actual performance of the contract in this case and other factors, adjust the 8 per cent downward float to 4 per cent according to the audit calculation price agreed by both parties. 3. Case No.:(2018) Supreme Famin Shen No. 4321 The Supreme People's Court referee's point of view: The Supplementary Agreement is a supplement to the Contract. Its content includes not only Nanfeng Company's efforts to strengthen the supervision of the project, but also Nanfeng Company's financial support for the construction of the project, thus obtaining a profit of 600000 yuan from the construction. The Court believes that the funds provided by Nanfeng Company are invalid construction contracts, so it cannot be considered that the part of the Supplementary Agreement on providing financial support for invalid contracts and obtaining concessions is valid, and the original trial is not improper in determining the validity of the Supplementary Agreement, and Nanfeng Company cannot claim concessions accordingly. 4. Case No.:(2018) Supreme Famin Shen No. 5332 Opinion of the Supreme Court: After examination, the Court believes that the construction contract signed by Juheng Company and Lanxin Company has a clear agreement on the downward floating ratio of the project payment settlement. Lanxin Company illegally subcontracted the road project to Juheng Company, which did not have the corresponding construction qualification, and the construction contract signed by both parties should be deemed invalid, but the project involved in the case has been completed and accepted. According to the provisions of Article 2 of the interpretation of the Supreme people's Court on the Application of legal issues in the trial of Construction contract disputes, the project payment shall be paid with reference to the contract. Therefore, the court of second instance shall pay the project in accordance with the floating proportion agreed by both parties, and the applicable law is not improper. 5. Case No.:(2021) Su 03 Min Zhong No. 9069 The judgment of Xuzhou Intermediate People's Court: Article 2 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes stipulates that the construction contract of the construction project is invalid, but the construction project has passed the completion and acceptance, and the contractor requests to refer to the contract If the payment of the project price is agreed upon, it shall be supported. After investigation, the subcontracting agreement signed by both parties agreed: settlement of the project = the final audit report price (1-31%) approved by the audit department entrusted by the construction unit, and Wang Chunjin will bear any further downward float. The final price approved by the audit department entrusted by the construction unit is 11.2 per cent of the proceeds from the construction of the floating project, which is an agreement between the construction unit and the construction unit. The settlement amount of both parties shall be 31% down from the approved amount of 4991173.4 yuan, I .e. 3443909.65 yuan. Wang mou's claim that the approved amount will be lowered by 11.2 on top of 31% has no factual and legal basis, and this court will not support it. The claim of Xiangrui Company on the actual settlement is not in conformity with the settlement terms agreed in the contract, and the Court does not support it. 4. legal analysis According to Article 4 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts, the scope of illegal income collected in this article shall, in accordance with the legislative intent of the Supreme People's Court, be the benefits obtained by the contractor as a result of illegal subcontracting or subcontracting; the benefits obtained by the construction person who does not have the legal qualification to sign the construction project contract by borrowing the qualification, but after the author searched the relevant cases of the courts at all levels, the actual court hearing cases, the parties have obtained the illegal income collection. In the above cases, regarding the determination of the validity of the concession agreement in the settlement clause, the judgment views of various courts are mixed. Some courts believe that the concession is due to the invalid contract of the subcontractor's profit, which is illegal profit and will not be supported. Some courts, from the perspective of fairness and justice, appropriately reduce or refuse to support the concession ratio in combination with the fault degree and actual participation of the parties in the case. Some courts, considering that the settlement clause is the true meaning of the parties, refer to the contract. In the sixth case mentioned above (case No.:(2021) Su 03 Min Zhong No. 9069), the plaintiff claimed that the price of the project payment obtained from the concession clause in the contract was lower than the construction cost of the actual builder, which was contrary to the principle of fairness and justice. Wang made huge profits for nothing, seriously increased the losses of the actual builder, and violated the legislative intent of the relevant laws on construction projects to safeguard the interests of the actual builder. However, the actual construction person did not provide the individual cost of the enterprise, can not prove that the settlement price is lower than the actual construction cost, the court did not support, but determined that based on the true intention of the two sides agreed 31% concession agreement as the basis for settlement. The author believes that after the promulgation of the Civil Code, the judgment rules of the courts basically tend to refer to the contract agreement: although the construction contract is invalid, if the parties actually perform the contract, the contract is the true intention of the parties, and the concession is not an integral part of the project cost, then the concession clause in the contract constitutes the settlement clause and should be settled with reference to this clause. That is to say, the actual effect of such concession clauses in the settlement of the project is basically recognized, and should be combined with the specific circumstances of the case and the relevant regional regulations.

2022-12-14

Viewpoint | Industry Team: Introduction to the Digital New Media Team of Zhongcheng Qingtai Jinan Institute

As the technology, media and telecommunications industries, which represent the main development direction of science and technology in the future, due to their inherent innovative and transformative attributes, TMT industry enterprises are facing many cutting-edge commercial and legal issues. Based on the above problems, our rapid response to the establishment of the digital new media industry (TMT) team. Q1 What is the TMT industry? A "TMT" integrates the initials of the three English words telecommunications (Telecommunication), media (Media) and technology (Technology), so the meaning it represents is the future telecommunications, media/technology (Internet), and information technology. Some industries produced by the convergence trend. We generally regard the TMT industry as the main development direction of future technology. Q2 What is the development trend and new format of TMT industry in the near future? A At the policy level, the 14th Five-Year Plan and 2035 long-term goals have listed "digital industry" and "digital China" as the direction of vigorous development. With the blessing of 5G, artificial intelligence, big data, cloud computing, VR/AR, autonomous driving, etc. The field will achieve further development, and these new technologies will change people's life, work and entertainment patterns. Under the influence of the epidemic, in the field of smart medical care, telecommuting, video live streaming and other fields, the new technology has increasingly played a practical role, the user online process is almost complete. It is believed that after the epidemic, the world will accelerate a new round of technology research and development, nurture more high-value applications, and continue to inject new momentum into the global economy. For example, during the Qatar World Cup, the broadcaster will transmit real-time video, voice and data to 219 markets around the world through broadcast, cable, mobile and satellite systems, using HDR, 4K, 8K and virtual reality video technologies to enhance the audience experience, and for the first time using interconnected ball technology (Connectedball technology) to assist offside punishment through new technologies. As we have seen everything, the TMT industry has gradually penetrated and changed our lives. Q3 The convergence of TMT industry and legal profession is an opportunity and a challenge. What subjective initiative can be played as a lawyer? A The rapid development of TMT industry requires lawyers not only to understand the law, but also to understand the industry, investment and customers. They should not only be based on the current policy, but also focus on the future development. More and more legal issues are closely integrated with professional technology, and it is difficult to deal with problems comprehensively if you only understand technology or only understand the law. With the development of "specialized and new" enterprises, lawyers have great potential in the field of enterprise management and compliance. Pay close attention to the legislation, law enforcement, and judicial developments of new technologies and new business formats related to specialized and new small and medium-sized enterprises, and attach importance to the protection of corporate intellectual property rights, trade secrets and data security. For specialized new small and medium-sized enterprises to provide accurate, high-quality, efficient exclusive service products. At this stage, the TMT industry has also become a hot spot for investment. Technology not only converges with the media and telecommunications in the TMT sector to form a new business form, but also combines with traditional industries to bring about changes in various industries. Under the double dividend of technological innovation and capital market policy, China's TMT will be a market with great development potential. In the field of capital market, lawyers will also make great achievements. In addition, at this stage, the extension of the TMT industry continues to expand, and new business models are gradually impacting traditional industries. The combination of the Internet and medical care, education, travel, consumption and other fields has gradually penetrated into each of our daily lives. The lawyer service TMT industry is by no means alone. It needs cross-industry and multi-jurisdiction cooperation. It needs lawyers to work in teams and have the ability to solve problems comprehensively. Q4 What are the original intentions and ideas for the formation of a TMT industry legal service team? A With the advent of the information age and the digital age, both emerging industries and traditional industries are closely related to information technology and the Internet. Naturally, the legal service industry cannot stay out of the matter, and the original lawyer positioning and development model have also triggered more thinking. While we are in contact with daily traditional business, we also find that many enterprises, especially "specialized and special new" enterprises, have more demand for legal issues related to information, technology, data and the Internet, and the number of similar cases is also increasing year by year. In addition, our team has professional lawyers with science and engineering background and engaged in intellectual property business. Therefore, choosing TMT field can give full play to its advantages. The construction and improvement of the professional team is a long-term process. The lawyers in the team have rich experience and are good at complementary fields. The team structure and business division are reasonable. We hope to give full play to the advantages of individuals and teams in the future and do something in the direction of TMT. Q5 Can you briefly introduce the TMT industry legal service team? A The team consists of 10 lawyers, including 4 partner lawyers and 6 full-time lawyers. We are good at cross-complementary business areas, mutual cooperation to help the TMT industry.

2022-12-14

Viewpoint | Analysis of Workers Not Competent for Work

Item (II) of Article 40 of the Labor contract Law stipulates that if a worker is not competent for the job and is still not competent for the job after training or adjustment of his post, the employer may terminate the labor contract. Meaning of "1. not competent for the job" Article 26 of the "Explanation on Several Provisions of the" the People's Republic of China Labor Law "of the former General Office of the Ministry of Labor (Labor Office No. 289 [1994]) defines" incompetent work ":" Incompetent work "in item (II) of this article refers to the inability to complete the tasks agreed in the labor contract or the workload of the same type of work and personnel in the same position as required. The employer shall not deliberately raise the quota standard so that the worker cannot complete it. It can be seen from this that when the employer and the employee have agreed on the work content and performance appraisal standards, they will be performed in accordance with the agreed content; if not, they will be implemented in accordance with the standards that most employees in the same position can generally reach. It is the autonomy of the employer to adjust the job position under the situation of "incompetent work" in the 2.. According to the provisions of Article 19 of the Labor Law and Article 35 of the Labor Contract Law, in the labor contract, the work content, working conditions, labor remuneration, etc. are the main items agreed upon by the employer and the employee in the labor contract. If changes are required, the employer and the worker shall reach a consensus through consultation and in written form. Therefore, a reasonable reduction to new posts should generally meet the following conditions at the same time: the employer has the legal basis for adjusting the post and has informed the workers of their rights and obligations; Both parties have the agreement to change the post: it should not be insulting and punitive. The identification of 3. "incompetent for the job" has nothing to do with whether they have professional qualification certificates. Professional qualification is the basic requirement of knowledge, technology and ability necessary for a career. Professional qualifications include qualifications and qualifications. Qualification refers to the starting point standard for the knowledge, technology and ability of a certain profession (type of work). Practicing qualification refers to the government's access control of certain professions (types of work) that have greater responsibilities, strong social versatility, and public interests. It is the knowledge, technology and ability to independently start business or engage in a specific profession (type of work) in accordance with the law. A necessary standard. Therefore, having obtained relevant qualifications for employment and access does not mean being competent for the job. Having relevant qualifications and being competent for the job are different concepts. Determination of Dissolution of Labor Contract in the Case of "Incompetent Work" of 4. The employer terminates the labor contract under the circumstances of Article 40 of the Labor contract Law, which not only has procedural provisions, but also requires the worker to be "incompetent for the job. In terms of procedures, three procedures should generally be performed in strict accordance with the order before the employer can terminate the labor contract: one is the identification of the worker's incompetence for the job; the other is the training or adjustment of the job position; the third is still incompetent for the job. Among the three procedures, the identification of workers incompetent for the job is not only the key procedure, but also the key in the entity identification. In the practice of adjudication, the determination of illegal dismissal is mainly based on the following aspects: first, whether the employer has an agreement on the job responsibilities or job contents of both parties in the labor relationship; second, there are specific criteria and regulations for assessment of job responsibilities and job contents; third, whether the assessment criteria or regulations for job contents or job responsibilities are reasonable in terms of possibility and periodicity; Fourth, whether the employer has performed the job transfer or training procedures, and whether the training content provided by the employer is professional training, regular training or induction training: it should be specially pointed out that the training at this time should be on-the-job training for "incompetent work"; Fifth, whether the employer's termination of the labor contract belongs to the situation that Article 42 of the Labor Contract Law shall not terminate the labor contract on the grounds of incompetence.

2022-12-13

Viewpoint | Correct Understanding of Employers Changing Jobs

Job changes include changes in job content and changes in job locations, and changes in job content and location have varying degrees of impact on employers and employees. 1. employers to change their jobs should comply with the law. If the employer proposes to change the work content and location due to work needs or personal reasons, both parties shall fully communicate and negotiate. If it is difficult to reach an agreement, the labor contract may be terminated or terminated according to law. The adjustment of the job position must be negotiated amicably between the two parties in the procedure, and the labor income of the laborer shall not be reduced in the case of the same or optimized labor system. However, in practice, some employers unilaterally change the place of work or the content of their work in order to force the workers to take the initiative to terminate the labor contract, or change their jobs on the grounds that the so-called workers fail to pass the examination, which is illegal. In practice, there are not many disputes about the changes in the work content, mainly the changes in the work place. According to Article 17 of the Labor Contract Law, the place of work is one of the necessary provisions of the labor contract. As in the labor contract to negotiate the "place of work", in practice there are roughly three situations: One is a precise agreement, such as a certain street in a certain district, a certain building and a certain room. The precise arrangement of the workplace agreement is in line with the legislative purpose of the Labor Contract Law on the essential provisions of the workplace. The second is a broad agreement, such as a city, a district, the whole country. The broad agreement is clearly an unclear agreement, in which case it is generally believed that if the employee has been working at an actual workplace after the signing of the labor contract, the actual workplace is considered to be the specific workplace determined by both parties. The enterprise shall not change the employee's workplace at will on the grounds of such broad workplace agreement. Three is the authorization of the agreement. There are two types of authorization agreements:(1) conditional obedience type, that is, the enterprise can adjust the work place and position of employees according to the needs of production or operation, and employees should obey without proper reasons;(2) unconditional obedience type, that is, enterprises can adjust the work place and position of employees at any time according to the needs of production or operation, and employees should obey unconditionally. The conditional obedience agreement has a certain rationality, but it does not mean that the enterprise can abuse the authorization of the labor contract and arbitrarily adjust the employee's workplace. In other words, when an enterprise adjusts or changes the employee's workplace according to the authorization clause of the labor contract, it needs to prove that the change of workplace is reasonable, and only a simple "production and operation need" is not a reasonable reason, that is to say, the enterprise needs to have specific reasons and evidence to support whether the change of employee's workplace belongs to the production and operation needs, and then proves that it is reasonable for the enterprise to adjust or change the employee's workplace according to the authorization clause of the labor contract. In addition, if an enterprise adjusts or changes an employee's workplace, it also needs to consider whether it increases the difficulty or burden of the employee's performance of the labor contract, whether it affects the employee's life, and whether the enterprise has taken reasonable remedial measures. For the unconditional obedience type of agreement, Yiyi conforms to the circumstances in which the terms of the labor contract are invalid. According to the provisions of Article 26 of the Labor Contract Law, the labor contract that the employer exempts itself from statutory responsibilities and excludes the rights of workers is invalid or partially invalid. 2. workers should have a correct understanding of the employer's job changes Article 29 of the Labor Contract Law stipulates that the employer and the employee shall fully perform their respective obligations in accordance with the labor contract. The employer exercises the autonomy of operation and management due to the adjustment of production structure and business scope or changes in the external market, and makes appropriate adjustments to the positions of workers under the premise of legality and reasonableness. The workers should cooperate with this. If workers have objections to the adjustment of their jobs, they should be resolved through consultation, and should not resist or confront them in a passive manner. Even if there is a certain difference between the new position and the original position, as long as it is not a major difference, as a worker, he should adapt to the new position through learning, training and practical operation, and cannot resist on the grounds that he thinks he is incompetent. In practice, employers exercise their operational autonomy to adjust the organizational structure. As long as they do not maliciously transfer posts against individuals, do not unilaterally designate adjusted jobs, and do not explicitly reduce wages, it should be regarded as a reasonable adjustment of jobs by employers. At this time, workers know that they should but insist on not going to work at the place designated by the company, which obviously violates the duty of diligence and loyalty that a worker should perform to the employer, it also violates the bottom line of professional ethics as a worker. It is the duty of the laborer to follow the basic work discipline of the employer. Although the law protects the legitimate rights and interests of the laborer, it does not condone the laborer to do whatever he wants.

2022-12-13

Viewpoint | Observation and Prospect of the "Transfer with Charge" Policy

With the pilot and promotion of the "transfer of ownership" policy, more cities have begun to explore the local "New deal" model and its impact. Before the implementation of the Civil Code, second-hand housing transactions were restricted by Article 191 of the Property Law, that is, the mortgaged real estate must be released from the mortgage before the transfer procedures can be completed. This often makes the buyer have to prepay a considerable amount of house purchase money before the transfer of ownership, so as to remove the mortgage of the third party first, especially when the prepaid amount is large, more complicated additional guarantees and other procedures are required, therefore, many people believe that the restriction of "release first, transfer later" increases transaction costs, prolongs transaction time, reduces transaction opportunities, and is not conducive to the circulation of real estate. After the implementation of the Civil Code, the policy of "transfer with mortgage" has injected new vitality into the second-hand real estate market. On the one hand, the reason for the "transfer with mortgage" policy is the increase in the demand for second-hand housing caused by the flow of talents, and the contradiction between the long transaction cycle and high risk, which affects the prosperity and transaction security of the second-hand housing market; on the other hand, it is the need for the in-depth implementation of the principles of streamlining administration and delegating powers and administrative convenience. In the past two years, the epidemic has made real estate transactions more difficult, and the implementation of the "New Deal" has also played a positive role. 1. the process comparison of the two modes before and after. (I) traditional transaction processes Sign the contract for the sale of the stock of housing, the redemption of the building to raise funds, the seller to the bank to pay off the mortgage loan to redeem the property, obtain the real estate certificate, the buyer for the mortgage and exchange of the mortgage, pay off the purchase of the house, handle the transfer registration, the completion of the transaction. (II) "transfer with pledge" transaction process The buyer and seller sign the contract of sale, the buyer applies for a loan from the bank, the buyer deposits the purchase money into the fund supervision, the bank issues the "mortgage change agreement", the bank supervises the funds to settle the seller's loan principal and interest, the remaining funds are transferred to the seller's account, the buyer and the seller handle the housing transfer registration, the transaction is completed. New elements of the "transfer with mortgage" policy in 2. After the entry into force of the Civil Code, the law no longer requires the mortgagor to obtain the mortgagee's consent for the transfer of the mortgage, but puts this issue into the autonomy of the parties, and thus derives new content in the course of the transaction. The "New Deal" not only involves buyers and sellers, but also involves multiple entities such as banks, notary departments or guarantee agencies. The transaction links are complicated, and for multiple parties, the rights and interests are in an uncertain state before the transfer is completed, so the local government has introduced corresponding The supporting measures will be analyzed as represented by the policies implemented in Jinan. First, the introduction of capital supervision mechanism, significantly reducing the risk of buyers and sellers. The buyer and seller negotiate to determine a fund supervision agency, which can be a notary office, a bank or other financial institution, and the fund supervision agency directly controls the flow of the purchase price. Although the registration center does not directly supervise the funds, the registration center will only handle the transfer registration for the buyer and the seller after seeing the deposit certificate issued by the fund regulator. The flow of funds is closely linked with the process of real estate transfer: if the buyer and the house purchase loan bank do not pay the house purchase price in full, the fund supervision institution shall not issue the deposit certificate, the real estate registration center shall not handle the transfer, and the seller will still have the real estate rights of the target house; If the transfer is unsuccessful, the fund supervision institution shall return the funds to the original way, and the buyer need not worry about not prepaying the house purchase price but not obtaining the real estate rights, significantly reduces the risk for buyers and sellers. Second, the use of "new loans to repay old loans" model to facilitate, the buyer's down payment, the buyer's bank loans into the capital regulatory agencies, can be used to repay the seller's loans, reducing the financial pressure on both buyers and sellers. Third, although in principle, the consent of the lending banks of both buyers and sellers must be obtained before the transfer of ownership can be handled in accordance with the steps of the Jinan notice, with the lead of the registration center, a number of banks have explicitly agreed to carry out this business and have filed business records with the registration center, including Bank of China, Construction Bank, Industrial and Commercial Bank of China, Rural Commercial Bank, Minsheng Bank, and so on. In other words, as long as the buyer and seller's bank belongs to this column, they can handle the transfer with the charge, without the need to obtain additional bank consent. Fourth, transfer registration and buyer's bank mortgage registration can be combined, reducing the cost of communication between buyers and sellers and the registration center and saving transaction time. The Influence and Prospect of 3. "Transfer of Ownership with Charge" (I) New Model Injects New Vitality into Real Estate Transactions The "transfer with mortgage" policy uses the new transaction mode to solve the problem of the seller's financing difficulties in the old transaction mode, shorten the transaction cycle, ensure the transaction security, promote the smooth performance of the transaction, reduce the transaction cost of second-hand housing, prevent the sale of more than one house, improve the security of second-hand housing transactions, save money, time, worry and effort. For example, Jinan has introduced a corresponding fund supervision system to further reduce the transaction risk of buyers and sellers. It closely cooperates with fund supervision agencies and real estate supervision centers to break through information barriers, timely grasp the flow of funds and the status of real estate rights, and realize the first transfer and then The loan is released from the mortgage, which greatly reduces the transaction risk. There are still some problems in the implementation of different attitudes around the (II). In cities such as Beijing, Shanghai, and Guangzhou, although the real estate registration center has liberalized the transfer of mortgages at the policy level, because there is still no supporting mechanism (especially the fund supervision mechanism), whether the transfer of mortgages can be realized in a case still depends on The consent and cooperation of the seller's loan mortgage bank. Although there are sporadic precedents, through online inquiries, it is found that in practice, the seller's bank agrees to take the transfer of ownership and cooperates with the buyer and seller to sign the necessary documents. It should be noted that if the seller enters into a contract with the lending bank that expressly prohibits the seller from transferring real estate with a mortgage, it will block the "transfer with a mortgage" procedure. According to the judicial case of online inquiry, the court recognized the validity of this prohibition clause. The provisions of the Loan/Mortgage Guarantee Contract signed before the implementation of the Civil Code relating to the prohibition of transfer with a mortgage shall not be affected by the "transfer with a mortgage" of the Civil Code, and the buyer shall not have the right to request the bank to assist in the transfer, but shall still conduct the transaction in the form of a redemption. If the Loan/Mortgage Guarantee Contract signed after the implementation of the Civil Code stipulates that the transfer of collateral is prohibited or restricted, the policy of "transfer with mortgage" shall not apply, and the buyer shall not have the right to request the bank to assist in the transfer. New prospects for further opening of (III) in the future Although there are different opinions on the policy of "transfer with mortgage", and the implementation degree and attitude are different in different places, in general, the implementation of the policy of "transfer with mortgage" has increased the liquidity of real estate, improved the convenience of transaction, and provided the possibility of new transaction framework for urban renewal and disposal of distressed assets, it is also expected that other cities will make relevant policies in the region blossom in the future after summing up existing experiences and practices. Here, it is necessary to remind the parties involved in the transaction to pay attention to the provisions prohibiting the seller from transferring real estate with mortgage in practice, so as to avoid that the relevant procedures cannot be carried out due to failure to pay sufficient attention to the contents of the loan contract when signing the Loan/Mortgage Guarantee Contract or handling the mortgage loan due to failure to pay due diligence.

2022-12-13

Viewpoint | Discussion on disputes over workers' automatic turnover

1. the past and present of automatic resignation Reply of the former General Office of the Ministry of Labor on the Handling of Unauthorized Leaving Employees by Enterprises (No. 68 [1993] of the Ministry of Labor, no longer valid), Reply on the Definition of Automatic Resignation and Absenteeism (No. 48 [1994] of the Ministry of Labor, has expired), "on the employee's unauthorized resignation according to the automatic resignation processing dispute belongs to the scope of labor dispute processing reply" (labor office force word [1992] No. 45, has expired) on the automatic resignation of different norms. In fact, this series of documents is only a behavior description of "automatic resignation", which is a broad sense of workers leaving their jobs. Therefore, the automatic resignation cannot be simply regarded as the behavior of the laborer to terminate the labor contract, but a de facto state of the laborer leaving the post. This fact has the following possibilities:(1) the worker is absent from work for no reason;(2) the worker fails to terminate the labor contract in accordance with legal procedures;(3) the worker is forced to terminate the labor contract by Article 38 of the Labor Contract Law:(4) the employer unilaterally adjusts the job position or place of work, and the worker refuses to come to the post;(5) the performance of the labor contract is temporarily suspended due to objective reasons. There are two situations in which the performance of the labor contract is temporarily suspended due to objective reasons:(1) the worker is suspected of committing a crime and his personal freedom is restricted. (2) Missing workers. If the laborer is missing, according to Article 44 of the "Labor Contract Law": "The laborer dies, or is declared dead or missing by the people's court", the labor contract is terminated, and the death or disappearance is not declared If the labor relationship is not terminated, the contract cannot be performed due to objective reasons, and the suspension is deemed reasonable. The Relationship between 2.'s Automatic Turnover and Dissolution of Labor Contract (I) automatic resignation is different from unilateral termination of labor contract Article 37 of my country's "Labor Contract Law" stipulates that under legal circumstances, workers have the right to terminate the labor contract in advance; Article 38, paragraph 2, stipulates that the employer uses violence, threats or illegal restrictions on personal freedom. In the case of forcing a worker to work, or using the unit to command in violation of regulations, forcing risky operations to endanger the worker's personal safety, the worker can immediately terminate the labor contract without informing the employer in advance. In other words, the worker should inform the employer when exercising the right of advance notice and immediate discharge. The behavior of the laborer's automatic resignation shows that the laborer neither "in advance" nor "afterwards" informs the employer to leave without saying goodbye. If it causes losses to the employer, it shall bear the corresponding in accordance with Article 90 of the Labor Contract Law. Liability for compensation. According to the general common sense, there is compensation only when there is a loss, and compensation should be based on the premise that there is a loss. If the laborer terminates the labor contract by notifying the employer in writing 30 days in advance, it is a case of illegal termination of the labor contract and causes losses to the employer, he shall be liable for compensation. The actual loss caused to the employer is the premise of the laborer's liability for compensation, and the burden of proof of the loss is borne by the employer. Therefore, the laborer has no reason to terminate the labor contract. Without informing the employer in advance, although it violates the procedural norms of the law, it does not necessarily produce the legal consequences of liability for compensation. The laborer's failure to inform the employer of the termination of the labor contract does not conform to the procedural legal norms for the unilateral termination of the labor contract by the laborer. As a labor relationship with personal relationship and property relationship, whether in the relationship between the two parties to manage and be managed, or in the determination of the subordinate relationship, the worker should implement the procedural obligation of "notice. (II) automatic resignation is different from the employer's termination of labor contract. Since the labor relationship between the two parties is in an uncertain state after the employee leaves the job automatically, it is difficult for the employer to determine the termination of the labor relationship by resignation. The automatic resignation of a (III) is also different from the termination of the labor contract by consensus between the two parties. According to the provisions of Article 36 of the Labor Contract Law, the employer and the employee may terminate the labor contract by consensus. As an act of both parties, whether the laborer first proposes to terminate or the employer first proposes to terminate, as long as the other party agrees and reaches an agreement, the labor contract can be terminated. Therefore, the first condition for both parties to terminate the labor contract by consensus is to reach an agreement between the laborer and the employer, and the automatic resignation of the laborer and the automatic resignation of the employer are not mutually agreed. Determination of automatic 3. turnover When a worker leaves his job automatically, he does not propose to terminate the labor contract based on the circumstances stipulated in the first paragraph of Article 38 of the Labor Contract Law, and his automatic resignation shall be presumed to be resignation due to personal reasons. After the unilateral termination of the labor contract, the laborer's request for the employer to pay economic compensation cannot be supported.

2022-12-12