12
2022-12
Viewpoints... "Eat" and "walk" in the post-epidemic era"
Food, clothing, housing, firewood, oil and salt are the daily life of the people. With the change of epidemic prevention measures, the era of epidemic has come. In this period, "eating" and "walking" are the most critical. Eating is "taking the right medicine" and "doing well". 1. the post-epidemic era, we should not blindly follow, let alone "take the right medicine" False is true and false, "even flower clear plague" and "lotus clear plague", "lotus clear temperature" and "chain flower clear warm tea" silly can not be distinguished, the wrong medicine to eat not only delay the fight against the epidemic, but also a fatal event. How to identify, of course, must have a certain amount of intellectual property knowledge. Its name is not a imitation of "lotus", but from the use of two traditional Chinese medicine-forsythia and honeysuckle, so the name "Lianhua" rather than "lotus" or "chain flower". How can pharmaceutical raw materials directly apply for trademarks? Because they are not directly indicated raw materials, if you use "forsythia" or "honeysuckle", it will not work, which may evoke your childhood memory-honeysuckle toothpaste, yes, he has disappeared. Yiling Pharmaceutical has also applied for a design patent (Lianhua Qingwen Capsule) for protection, as shown in the following figure: In February 2020, Lianhua Qingwen Capsules (granules) were included in the National Health Commission's "New Coronavirus Pneumonia Diagnosis and Treatment Plan (Trial Sixth Edition)". In April 2020, the State Food and Drug Administration issued the "Drug Supplement Application Approval Document" shows that Lianhua Qingwen Capsules (granules) produced by Yiling Pharmaceuticals are approved for fever, cough, and fatigue caused by light and common types of new coronavirus pneumonia. The course is 7 to 10 days. During the spread of the epidemic, this product has been recognized by the market and has considerable popularity and influence. "Lianhua Qingwen Capsule" can be protected by competition law as a "commodity name with certain influence. Besides, what other drugs have a positive impact on the fight against the epidemic? According to the Guidelines for Home Treatment of New Coronavirus Infected Persons issued by the Comprehensive Group of the State Council's Joint Prevention and Control Mechanism for the Response to the New Coronavirus Pneumonia Epidemic, the reference table of commonly used drugs for home treatment of new coronavirus infected persons is as follows: 2. travel in the post-epidemic era to be cautious, only "line of peace" May the mountains and rivers be safe and the world be safe!
2022-12-12
12
2022-12
In Zhongcheng Qingtai, there are always a group of senior lawyers who stick to their profession and ideals. They are the role models for the law firm to learn from. They are the guides of future generations. They are also professional lawyers who satisfy their clients and reassure the party and the government. Let's get to know them, walk into their stories and listen to their voices. Cover Person-Zhou Jiyong 01 Fresh and exciting "travel" If one word is used to describe Zhou Jiyong, it is probably-"chivalrous man". The first time I came into contact with lawyer Zhou Jiyong, I saw that his eyes were bright, his words were sonorous and forceful, and he did things vigorously, which made people deeply feel his vigorous vitality and noble righteousness. Listening to his story is more beneficial and touching. After passing the judicial qualification examination in 1998, he came to Zhongcheng Renhe Law Firm to start his own "journey" as a lawyer ". Why is it a lawyer's trip? Zhou Jiyong said with high spirits: "I am a person who likes new things and is willing to challenge. Lawyer work is different from assembly line work. There are new people and things in every agency case, which is a wonderful different side. This is more wonderful than travel!" For many senior lawyers, the past experience is a bitter and sweet, for him, it seems to be an upgrade. The year 2000 coincided with the booming era of domestic real estate, accompanied by a sharp increase in legal demand. However, the real estate legal business involves not only the legal knowledge itself, but also many professional knowledge in the field of construction engineering, such as surveying and mapping, building materials, structure, construction, etc. This kind of business has the characteristics of many participants, complicated legal relations, difficult application of law, large amount of disputes and so on. Therefore, the reserve of professional knowledge required to deal with the business alone and the ability to analyze and solve complex problems have also made many lawyers sigh and stop. Zhou Jiyong did not have an engineering background at the time, but dared to dive into the real estate legal business. He believes that young people should be magnificent and should not belittle themselves; he firmly believes that perseverance can make gold and stone. "If you are young, do it immediately and boldly try and make mistakes". Law is by no means an isolated profession, and superficial legal problems are bound to arise from the underlying logic of the industry. Therefore, he was determined to understand and understand the knowledge in the real estate field, and get through the "two channels of appointment and supervision" of the two industries ". From land acquisition and storage to project approval and construction, from construction to completion and settlement, from commercial housing sales to delivery and certification, he studied assiduously and successfully changed from a layman to a professional lawyer who can study and judge problems in professional fields with contractors and contractors and put forward the best legal advice. In that era when information was underdeveloped and learning channels were single, the efforts could not be summed up in a few simple words. Starlight does not ask the wayward, time pays off, full bookshelves and thick notes are the best testimony to his efforts, and the wide recognition of customers is the best reward for his persistence. Zhou Jiyong and engineers together to carry out on-site inspection, understand the current situation of the project 02 I'm responsible for the client Zhou Jiyong said that there is a saying in the construction industry that "build a project and build a monument". For our lawyers, it is "build a reputation for a case". Judging a lawyer's professionalism is not a peer evaluation, but the client's approval. We can fool ourselves, but we can't fool the client. The more parties who do not understand the law, the more they should treat them attentively and have a sense of responsibility. In early 2006, a well-known pharmaceutical company in Jinan had a dispute with a unit in Guizhou over technology transfer and was sued to the local court in Guiyang. Due to the lack of awareness of legal risk prevention, the pharmaceutical company has been exploited by the other party. They not only face millions of economic losses, but may also pay the other party more than 100 million in liquidated damages. The anxious and helpless boss of the company found lawyer Zhou and trusted him with the future of the whole company, hoping that he could help the company recover its losses and seek justice. As a lawyer, the trust of the client is the driving force, and the client's entrustment is the order. After representing the case, he immediately put himself into the difficult and complicated preparation for responding to the lawsuit. Although lawyer Zhou argued hard, the case was still defeated in the first instance, and the parties were extremely anxious, but as an old lawyer with rich practical experience, Lawyer Zhou resolutely decided to appeal the case to the Guizhou High Court. He noticed that although the subject matter of the case was large, the technology transfer contract signed by the parties at that time was relatively simple. In view of the above-mentioned characteristics of the case, while he was familiar with the case, he also made a full and powerful discussion in theory, from the principle of contract interpretation to the application basis of liquidated damages, checked cases, turned over monographs, and actively exchanged views with other lawyers in the institute. Finally, in the second instance, he persuaded the judge with careful legal argumentation and a large number of case citations, and achieved a successful result. The client was overjoyed and praised him, and immediately hired him as the company's permanent legal counsel. However, looking back on the litigation process of the past year, it is full of emotion. In order to win the case, he has experienced many sleepless nights. The investigation and evidence collection alone went to Guiyang and obtained a large amount of detailed litigation evidence, which laid a solid foundation for the success of the case. "Just because the client doesn't understand the doorway, many legal details may be ignored. As professional legal professionals, we are responsible for this. Otherwise, what are we lawyers doing?" Zhou Jiyong and colleagues hold case seminar 03 Both litigation results, but also social benefits When he brought up a more impressive case, Zhou Jiyong said it was a litigation project of an unfinished building-the issue of the construction of villagers' resettlement houses between the contractor and the employer. After receiving the agent's entrustment, lawyer Zhou learned that due to the long-term unfinished project, the villagers' dissatisfaction has been relatively strong. Considering that the litigation cycle is long and may bring adverse social effects, lawyer Zhou made a bold exploration at that time. First check and quality inspection of the completed quantities of unfinished buildings, introduce new contractors to resume work, and then solve the litigation problems. After repeated communication with the local government and the court, and under great pressure to persuade the employer and the contractor, all parties finally agreed to adopt lawyer Zhou's plan, the project resumed work in time and the villagers' mood was greatly comforted. The final litigation lasted nearly two years, and the case ended in the victory of Zhou's lawyer. "For many large-scale litigation cases, we can't just consider the parties. The parties behind the company are related to the interests of thousands of ordinary people, and it is also related to the harmony and stability of many ordinary families." Zhou Jiyong participated in the expert demonstration meeting and provided expert demonstration opinions. To some extent, lawyers can be defined as "social repairmen" to resolve disputes and conflicts. As a lawyer, do your job well, you can shine and warm more people, and at the same time gain a good social reputation. This is something more valuable and meaningful. Director Zhou said that he hoped that young lawyers would seriously consider such a thing, whether to be a lawyer for survival or for career. If you think about it, there will be a bright future, and a lot of persistence will make sense. 04 Practice leads to true knowledge, and theory and practice are combined. At the beginning of the 21st century, the information network is not developed, the court cases available for retrieval are still relatively few, and many difficult cases have no reference precedent at all. In this case, facing new problems in real estate development, Zhou Jiyong often read a large number of books and repeatedly deliberated the legal principles behind it several times in order to give the parties a satisfactory answer. "Crossing the river by feeling the stones is the most testing and training for people! That was the time when I, a young lawyer, grew up the fastest." Director Zhou said with great joy. "If you want to be a really good lawyer, what you really learn is in practice. You should boldly take what you have learned in your heart and integrate it with practice." Zhou Jiyong said that he had learned in practice where the starting point of the distance between the two buildings was, and due diligence should consider the economic issues of the quotation, the sketch of the building and the field inspection, etc. In each case to fully grasp the professional legal knowledge outside the litigation, professional non-legal knowledge. Zhou Jiyong said that it is very difficult to carry out non-litigation business without litigation experience. The risk point encountered in litigation is the avoidance point in non-litigation. The more contact litigation examples, their own consideration is more comprehensive, the higher the degree of grasp of the contract. "But this does not mean that theory is not important. Many lawyers gradually prefer practice in their practice, thinking that it is good to simply accumulate experience." Zhou Jiyong said that in recent years, the court has also paid more attention to the legal logic behind the law in court sessions, and sometimes the point of view is to examine the legal principle behind it. For young lawyers, we should pay more attention to strengthen the study of legal logic. "Chinese law", "legal science" and other professional law journals remember to read. 05 A different kind of lawyer life Lawyer Zhou's daily life is sports. In the table tennis match, badminton match, basketball match all kinds of competitions have his figure. "I like the excitement of sports and the ease of sweating. Sports also make me more focused and fast!" Zhou Jiyong participated in the badminton competition organized by the law firm. Indeed, concise and comprehensive, vigorous and clear, concise and clear work has also become Zhou Jiyong's working style. I wish Zhou lawyer a better life experience in upgrading and fighting monsters.
2022-12-12
09
2022-12
Viewpoint... The dispute over the validity of the gambling agreement and the dilemma of performance.
As a commonly used mechanism for adjusting or balancing investment interests and investment risks, the gambling agreement has gone through a long-term debate on the application of the law, and the introduction of the Minutes of the Ninth People's Conference has quelled the dispute over the legal validity of the gambling agreement, but the implementation of the gambling agreement still faces new difficulties. The author briefly combs the course of this debate and briefly analyzes the new dilemma in order to help. The meaning and value of 1.-to-gambling agreements. "Gambling agreement", also known as valuation adjustment mechanism (Valuation Adjustment Mechanism) or "valuation adjustment agreement", is a type of contract mainly used in the field of venture capital. The performance is that the investor becomes the shareholder of the target company through investment, obtains the equity, and at the same time makes an agreement on the future operating performance of the target company and the listing of the company. When the agreed goal fails to be achieved or realized, the target company or its shareholders shall make equity compensation, cash compensation or buy back the shareholders' equity according to the agreed terms according to the agreed proportion or amount. The value of the gambling agreement is reflected in its reasonable allocation and fair arrangement of investment interests and investment risks. On the one hand, in investment activities, information asymmetry is widespread and doubled, and the use of gambling agreements can relatively adjust and balance the asymmetry of investment information between the financing parties and reduce investment risk. On the other hand, investors often do not participate in the management of the company, the interests of enterprise managers and investors are not always the same, in order to prevent the target company from harming the rights and interests of investors for their own interests, the introduction of gambling agreements can effectively motivate and restrain the management of the enterprise, to achieve a win-win situation between investors and enterprise management. The difference between a 2. gambling agreement and a "real debt". In practice, the parties often defend the nature of the gambling agreement, arguing that the legal relationship involved is not an investment relationship but a real debt, and thus arguing that the relevant repurchase clause is invalid. Although there are many similarities between the two, they are actually two different investment methods, and there is a view in academia that the gambling agreement is a third investment method between equity investment and bond investment, which has both characteristics and is different from the above two investment methods. 1. The appearance of the gambling agreement is similar to that of the real debt of the stock. From the appearance of the transaction, the gambling agreement and the real debt of the name shares are in the form of equity transactions. Common bargaining chips for gambling agreements include cash compensation, equity compensation, share buybacks, drag-out rights, and preferential liquidation rights, with cash compensation and share buybacks being the most common. The real debt of the stock is often due to the maturity of the exit and fixed income commitment as the core elements. Since both transactions are in the form of equity transactions, with both margin-making and repurchase provisions, it is highly confusing. 2. The difference between the value of a gambling agreement and a real bond. First of all, the two investment purposes are different. The main purpose of the investors of the gambling agreement is to obtain the equity appreciation of the target company. The signing of the gambling agreement is only to protect the rights and interests of the investors and attract the funds of the investors. The investors of nominal shares and real bonds are to obtain fixed income after a certain period of time, and their income will not increase or decrease due to different operating conditions of the target company. Second, the two trigger buybacks for different reasons. When the conditions agreed in the gambling agreement are reached, the repurchase obligation of the repurchase obligor will be triggered. This condition can be either a target such as listing, financial indicators such as profit and revenue, or non-financial indicators such as market share and user volume. The triggering of repurchase of famous shares and real debts has nothing to do with the company's operation, but only with the time agreed in the contract. 3. The different legal consequences of gambling agreements and open-end debt. In most cases, the determination of an investment as a debt investment does not affect the validity of the contract, but there are exceptions, such as when the investor constitutes an illegal transfer or professional lending, the investment contract will be considered invalid. However, even if the contract is not invalid because it is found to be a debt investment, its specific content may be affected, for example, the court may adjust its agreed interest rate and liquidated damages. 3. the validity of the gambling agreement. Depending on the subject involved in the bet, the bet agreement can be divided into two broad categories: investor-shareholder bet and investor-company bet. In practice, there is no dispute about the validity of the gambling agreement signed between the investor and the shareholder. If there is no other invalid reason, it is determined to be valid and supports the actual performance; the common disputes about the validity of the gambling agreement mainly focus on the validity of the gambling between the investor and the company, The judgment rules related to this have undergone a series of changes from the "Haifu case" known as the "first case of gambling" to the introduction of the nine people's minutes. 1. Effective gambling with shareholders, invalid gambling with target company-(2012) Minti Zi No. 11 Suzhou Industrial Park Haifu Investment Co., Ltd. and Gansu Shiheng Nonferrous Resources Reuse Co., Ltd., Hong Kong Dia Co., Ltd., Lubo Capital Increase Dispute Case Basic case: In 2007, Haifu Company and Dia Company signed a joint venture contract; Suzhou Haifu Company, as an investor, signed a Capital Increase Agreement with Gansu Shiheng Company, Dia Company and natural person Lu Bo (Lu Bo is the legal representative of Shiheng Company and Dia Company). According to the above two agreements, Haifu Company invested 20 million RMB to acquire 3.85 per cent of the shares of Shiheng Company, and the other 96.15 per cent of the shares were held by Dia Company. The performance target is agreed that the net profit of Shiheng Company in 2008 shall not be less than 30 million yuan. If the actual net profit of Shiheng Company in 2008 fails to reach 30 million yuan, Haifu Company has the right to demand compensation from Shiheng Company. If Shiheng Company fails to fulfill its compensation obligation, Haifu Company has the right to demand Dia Company to fulfill its compensation obligation. Share repurchase agreement: if the listing cannot be completed due to shiheng company's reasons by October 20, 2010, haifu company has the right to require dia company to repurchase all the shares of shiheng company held by haifu company at that time at any time. dia company shall pay haifu company the full price in one lump sum according to the agreed repurchase amount within 180 days from the date of receiving the written notice from haifu company. In December 2009, because Shiheng Company's actual net profit in 2008 was only 26858.13 yuan, which was far lower than the agreement of 30 million yuan in gambling, Haifu Company filed a lawsuit with Lanzhou Intermediate People's Court. Summary of the referee: In 2012, the Supreme Court made a retrial judgment, holding that the target company's commitment to performance compensation to investors is invalid in violation of the mandatory provisions of laws and administrative regulations, while the corresponding commitments made by the shareholders of the target company are legal and effective. The reasons are as follows: (1) Shiheng Company, Haifu Company, Dia Company and Lu Bo agreed in the Capital Increase Agreement that if the actual net profit of Shiheng Company is less than 30 million yuan, Haifu Company has the right to obtain compensation from Shiheng Company and agreed on the calculation formula. This agreement allows Haifu's investment to obtain a relatively fixed income, which is divorced from Shiheng's operating performance and harms the interests of the company and the interests of the company's creditors. The Supreme Court held that it was correct for the court of first instance and the court of second instance to determine that this part of the "Capital Increase Agreement" was invalid in accordance with Article 20 of the the People's Republic of China Company Law and Article 8 of the the People's Republic of China Law on Chinese-Foreign Joint Ventures. The court of second instance held that the name of Haifu Company was investment and there was no legal basis for borrowing. (2) In the Capital Increase Agreement, Dia's compensation commitment to Haifu does not harm the interests of the company and its creditors, does not violate the prohibitive provisions of laws and regulations, is the true intention of the parties, and is effective. In the event that Shiheng's profit in 2008 does not reach the agreed target, Dia shall compensate Haifu at the request of Haifu in accordance with the agreement. 2. Gambling with shareholders is valid, and the guarantee of the target company is valid-(2016) Re-trial of the dispute over equity transfer between Qiang Jingyan and Cao Wu Bo No. 128 Basic case: On April 26, 2011, Hanlin Company (Party A), Qiang Jingyan and other legal and natural persons (Party B) and Cao Wu Bo (Party C) jointly signed the Capital Increase Agreement and Supplementary Agreement on the capital increase and gambling of Qiang Jingyan and others to Hanlin Company. Among them, it was agreed that Qiang Jingyan would increase its capital to Hanlin Company by 30 million yuan, of which 4 million yuan would be the registered capital, 26 million yuan would be listed as the company's capital accumulation fund, and Qiang Jingyan would hold 0.86 percent of the equity of Hanlin Company. Share Repurchase Agreement: The Supplementary Agreement stipulates that if the target company, namely Hanlin Company, fails to complete the qualified IPO before June 30, 2013, Qiang Jingyan has the right to request Cao Wupo to repurchase the shares of the target company held by Qiang Jingyan in cash. The agreement also provides for Hanlin to provide joint and several guarantee liability for Cao's repurchase. On May 31, 2012, Qiang Jingyan and Cao Fubo signed the Equity Transfer Agreement, but Cao Fubo has not fulfilled his payment obligation. After notifying Cao Wu Bo and Han Lin Company in writing on April 2, 2014 that they failed, Qiang Jing Yan filed a lawsuit with the court on May 14, 2014. Summary of the referee: The courts of first and second instance both recognized the legality and validity of the agreement on the terms and prices of the share repurchase in the Supplementary Agreement, but both held that the agreement on the joint and several guarantee liability of Hanlin Company for the repurchase was invalid. The court of first instance held that: First, Qiang Jingyan should submit relevant evidence that the guarantee provided by Hanlin Company for shareholder Cao Yubo has been passed by the resolution of the shareholders' meeting. The court of second instance held that the guarantee provided by Hanlin Company for the equity transfer payment of Cao Wu Bo's repurchase of Qiang Jing Yan's equity enabled the shareholder Qiang Jing Yan to avoid the transaction risk, and transferred the possible risks of poor management and poor performance of Hanlin Company to Hanlin Company and its creditors, which seriously damaged the legitimate interests of other shareholders and creditors of Hanlin Company and should be deemed invalid. The Supreme Court retrial held that the agreement of Hanlin Company to provide joint and several guarantee liability for the repurchase was valid. Qiang Jingyan has provided guarantee to Hanlin Company. After the resolution of the shareholders' meeting, the guarantee provided by Hanlin Company is conducive to its own business development needs and does not harm the rights and interests of the Company and its small and medium shareholders. 3. Gambling with the target company is valid-(2019) Su Min Zai No. 62 Jiangsu Huagong Venture Capital Co., Ltd. and Yangzhou Forging Machine Tool Co., Ltd., Pan Yunhu and other request companies to acquire shares dispute retrial civil judgment Basic case: On July 6, 2011, Huagong Company and Yangforging Group Company, Pan Mou, Dong Mou and others jointly signed the "Capital Increase and Share Expansion Agreement" and the "Supplementary Agreement", agreeing that Huagong Company will increase the capital of Yangforging Group Company in cash of 22 million yuan, of which 2 million yuan is the registered capital and 20 million yuan is listed as the company's capital accumulation fund. Share repurchase agreement: If Yangforging Group Company fails to be listed on the domestic capital market before December 31, 2014 or the main business, actual controller, and board members of Yangforging Group Company undergo major changes, China Engineering Company has the right to request Yangforging Group Company to repurchase all its shares. At the same time, it was agreed that any loss incurred by Huagong Company due to the breach of contract of Yangforging Group Company, Pan, Dong, etc., and Yangforging Group Company shall be jointly and severally liable. Summary of the referee: The courts of first and second instance both found the share repurchase agreement invalid on the grounds that "the share repurchase agreement violates the principle of capital maintenance of the company and independent property of the legal person", which is also in line with the ruling rule that "gambling with the target company is invalid and gambling with shareholders is valid" established since the Haifu case. However, the Jiangsu High Court did not follow this ruling rule in the retrial, but affirmed the agreement between investors and the company to repurchase shares for the following reasons: First, my country's "Company Law" does not prohibit limited liability companies from repurchasing the company's shares., The repurchase of the company's shares by a limited liability company does not of course violate the mandatory provisions of my country's "Company Law. The repurchase of the Company's shares by a limited liability company after fulfilling the statutory procedures will not be detrimental to the interests of the Company's shareholders and creditors, nor will it constitute a violation of the Company's capital maintenance principle. Second, the agreement on the investment income of Huagong Company does not violate the prohibitive provisions of national laws and administrative regulations, and there is no invalidity of the contract as stipulated in Article 52 of the the People's Republic of China Contract Law, nor does it belong to the standard contract or standard clause stipulated in the contract law, and there is no question of obvious unfairness. Third, as long as the capital reduction procedure is fulfilled in accordance with the legal procedures, the gambling agreement involved in the case, whether it is for the capital injection part included in the registered capital or the capital injection part of the capital provident fund, has the legal possibility of performance. In addition, referring to the proportion of equity held by Huagong Company in Yangforging Company and the dividends paid by Yangforging Company over the years, the payment of share repurchase funds agreed in the gambling agreement involved in the case will not lead to impairment of Yangforging Company's assets, nor will it damage Yangforging Company's solvency to other debtors, and will not constitute an obstacle to the realization of creditor's rights to other creditors due to the performance of this obligation. That is, the gambling agreement in question is legally and de facto enforceable. Fourth, the invalidity of the gambling agreement involved in the case not only harms the legitimate rights and interests of Huagong Company as a creditor, but also infringes the interests of the shareholders of Huagong Company and the creditors of the company, which violates the principle of good faith and fairness in commercial activities. Therefore, the agreement between Huagong Company and Yangforging Company and its shareholders to repurchase shares does not violate the prohibitive provisions of laws and administrative regulations, and there is no invalidity of the contract as stipulated in Article 52 of the Contract Law, nor does it belong to the provisions of the Contract Law. There is no obvious unfairness in the format contract or the format clause, and it should be recognized as valid. 4. Gambling with the target company is valid, but may not be enforced because it does not comply with the relevant provisions of the company law-Nine Minmin Minutes On November 8, 2019, the Supreme Court issued the "Minutes of the National Court's Civil and Commercial Trial Work Conference" (hereinafter referred to as the "Nine People's Minutes"). The Nine People's Minutes clearly stated the validity of the gambling agreement and the performance of the judgment: "For the investor If there is no other invalid cause for the 'gambling agreement' concluded with the shareholders or actual controllers of the target company, it is deemed valid and supports the actual performance". As for the "gambling agreement" concluded with the target company, the Jiumin minutes further stipulates its validity determination and performance. Article 5 of the Jiumin minutes stipulates: "If the" gambling agreement "concluded between the investor and the target company does not have any legal invalid reasons, the target company only claims that the" gambling agreement "is invalid on the grounds of equity repurchase or monetary compensation agreement, the people's court will not support it, however, if the investor advocates actual performance, the people's court shall examine whether it complies with the mandatory provisions of the Company Law on 'shareholders may not withdraw their contributions' and share repurchase, and whether the judgment supports its claim." The Performance Dilemma of Gambling between 3. and Target Companies The introduction of the Jiumin minutes affirmed the validity of the gambling agreement with the target company, but this did not completely solve the problems in the application of the gambling agreement, and the "inability to perform" became a new problem faced by the gambling agreement after the validity dispute. 1. The dilemma of the capital reduction procedure performed by the share repurchase.
2022-12-09
09
2022-12
December 4 to December 10, 2022 is China's fifth constitutional publicity week. In order to further popularize the knowledge of the Constitution, guide people from all walks of life to form a good fashion of carrying forward the spirit of the Constitution and safeguarding the authority of the Constitution, vigorously carry forward the spirit of the socialist rule of law, and further enhance the legal awareness of the whole people, on December 8, 2022, lawyer Li Zhenzhong, deputy director and senior partner of Shandong Zhongcheng Qingtai Law firm, gave a constitutional publicity lecture for Shandong property rights group. Lawyer Li Zhenzhong took the Constitution Day and the Constitution propaganda week as the starting point, combined with relevant cases, vividly introduced the relevant contents, status and significance of the Constitution and the amendment to the Constitution, and introduced the socialist legal system with Chinese characteristics centered on the Constitution. Lawyer Li Zhenzhong's in-depth and simple teaching was highly praised by the participants of Shandong Property Rights Group.
2022-12-09
07
2022-12
Recently, the author handled a case of suspected intentional injury caused by a neighboring dispute. After several twists and turns, he was finally not prosecuted. Brief of the case Lao Wang (68 years old) and Lao Li (80 years old) are adjacent to each other, and there is always a gap between them due to land boundary problems. Lao Li built a partition wall between the two contracted land. Lao Wang believed that Lao Li's partition wall occupied Lao Wang's land, so he tore down Lao Li's partition wall. As a result, the two quarreled and then had physical conflicts, resulting in Lao Li's clavicle and right scapula fractures, which were identified as minor injuries of grade II. Lao Wang was filed for investigation on suspicion of intentional injury and was later transferred to the procuratorate. Process The author accepts the suspect Lao Wang's commission at the procuratorate stage. The client, Lao Wang, objected to the injury of the victim, Lao Li. It is first suspected that the victim was fraudulently injured or self-injured. After the two had a dispute, the victim had an X-ray examination in the health center that day. No fracture was found, nor was he hospitalized, and he was able to go to the market as usual, but three days later, he was in another hospital. It was found that the clavicle and right scapula were fractured, so the client Lao Wang suspected that the victim was fraudulently injured or self-injured. After checking the law enforcement recorder of the police personnel, it was shown that the victim had already explained the unbearable pain in his right shoulder when the police went out. As for the fracture that was not detected on the same day, the hospital explained that the X-ray examination done by the victim on the day of the crime was a two-dimensional plane examination, the CT examination done three days later was a three-dimensional examination, and the injuries that could not be found through two-dimensional could be found through three-dimensional, this precludes the possibility of fraudulent or self-infliction of injury by the victim. The client also suspected that the victim's injury was an old injury. After consulting relevant medical experts, the possibility of the victim passing the old injury as a new injury was ruled out, which eliminated the client's doubts. Based on the actual situation of this case, considering that the two people are from the same village and neighbors, if the contradiction can be resolved, it will be beneficial for the two families to live in harmony for a long time, so the defender will shift the focus of his work to mediation and reconciliation. It is commendable that in order to resolve the contradiction between the two sides, the public prosecutor in this case has done a lot of work. He has come to the field three times to mediate the dispute for the two old people. In the end, Lao Wang actively compensated Lao Li for his loss and obtained Lao Li's understanding. The two old people finally turned fighting into friendship. Processing results The procuratorate made a decision not to prosecute Lao Wang. Case perception The case is a modern version of the "six foot lane". Just as Zhang Ying, a famous official of the Qing Dynasty, said in "Six-foot Lane", "A thousand-mile letter is only for the wall, so why not let him three feet? The Great Wall is still there today, but the First Emperor of Qin was not seen in those days."
2022-12-07
07
2022-12
Foreword The enterprise management of state-owned enterprises and the prevention and control of legal risks are based on August 2016. The general office of the State Council issued the opinions on establishing the accountability system for illegal operation and investment of state-owned enterprises No. 63 issued by the general office of the State Council. Among them, the scope of application of the opinions, the scope of accountability, the identification of engineering regulatory risks and responsibilities, and the prevention of criminal legal risks in bidding are elaborated in detail. On November 10, 2015, the General Office of the State Council issued the "Opinions on Strengthening and Improving the Supervision of State-owned Assets of Enterprises to Prevent the Loss of State-owned Assets", which put forward requirements for strengthening the internal supervision, external supervision, social supervision and accountability system of enterprises. On August 24, 2016, the General Office of the State Council issued the Opinions on Establishing an Accountability System for Illegal Operation and Investment of State-owned Enterprises (No. 63 [2016] of the State Council). The 1. Opinions clarify the subject and scope of accountability. 1. The subject of accountability for the Opinions The "lifelong accountability system" for major decisions on illegal operation and investment of state-owned enterprises has been established ". By the end of 2017, the accountability system and accountability mechanism for illegal operation and investment of state-owned enterprises will be basically formed. By the end of 2020, the accountability system covering all levels of institutions performing the responsibilities of investors and state-owned enterprises will be comprehensively established, and the accountability working mechanism with clear responsibilities, clear processes, and standardized and orderly accountability will be formed. Tenure performance appraisal-the pursuit of short-term investment income, resulting in a long-term loss black hole-"executives make mistakes, the state pays the bill". De-capacity is an important task of the current supply-side structural reform, some excess capacity, zombie enterprises, it is precisely some state-owned enterprises unrealistic pursuit of scale, excessive expansion caused. With the increasingly active investment of state-owned enterprises, the acceleration of mergers and acquisitions of state-owned enterprises, the pilot reform of mixed ownership has been launched (e. g. high-speed, sea investment, transportation;), there is an urgent need to strengthen the long-term supervision of the investment decision-making of state-owned enterprises, to prevent the side of the production capacity, while blind investment. The lifelong accountability system is expected to solve the problem of short-term investment decision-making of state-owned enterprises, which is an inevitable move to adapt to the current situation and prevent the loss of state-owned assets. Article 5 The term "state-funded enterprises" as mentioned in this Law refers to wholly state-owned enterprises and wholly state-owned companies funded by the state, as well as state-owned capital holding companies and state-owned capital shareholding companies. Article 4 of the Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises The term "state-owned and state-controlled enterprises" as mentioned in these Measures includes: Wholly State-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as wholly State-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100 per cent of the total shares; An enterprise that (II) the units or enterprises listed in paragraph (I) of this Article, individually or jointly, with a total ownership of more than 50% of the property (share) rights, and one of them is the largest shareholder; Subsidiaries at all levels (III) the enterprises listed in the (I) and (II) of this Article that contribute to the outside world and own more than 50% of the equity; (IV) government departments, institutions, institutions, single state-owned and state-controlled enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholders, and can be effectively controlled by them through shareholder agreements, articles of association, resolutions of the board of directors or other agreements. The core of the "Opinions" is aimed at relevant personnel in the operation and management of state-owned enterprises who violate national laws and regulations and internal management regulations of enterprises, fail to perform or fail to perform their duties correctly, resulting in losses of state-owned assets and other serious adverse consequences, which are divided: Directly responsible person: refers to the relevant personnel of the state-owned enterprise who violates the regulations, fails to perform or fails to perform their work duties correctly, and plays a decisive and direct role in the resulting asset loss or other adverse consequences; (directly related person) Responsible person in charge: refers to the person directly in charge (in charge) who violates regulations, fails to perform or fails to perform duties correctly, resulting in asset loss or adverse consequences within the scope of his/her direct supervisor (in charge); Leader responsible person: refers to the main person in charge who violates regulations, fails to perform or fails to perform duties correctly, resulting in asset losses or adverse consequences within the scope of his work responsibilities. (Failure to perform review and supervision duties) 2. The scope of responsibility for the "opinion" Group management and control (major violations of rules and disciplines by affiliated enterprises) Purchase and sale management (transfer of benefits from buying high and selling low) Bidding and procurement (violation of the Bidding Law) Project contracting and construction (illegal subcontracting and subcontracting) Transfer of property rights, equity and assets of listed companies (transfer at low prices) Investment in fixed assets (without feasibility study, unauthorized change of construction content) Investment and M & A (valuation violations, transfer of related benefits) Restructuring and restructuring (discount of state-owned assets, arbitrage of private shares) Fund management (small treasury, illegal guarantee, illegal fund-raising) Risk management (major deficiencies in internal processes, over-indebted operations) Accountability for project contracting and construction: 1. Failure to investigate and demonstrate the subject matter of the contract in accordance with the provisions, unauthorized or unauthorized bidding, the winning price is seriously lower than the cost, resulting in the loss of enterprise assets; (bidding problem) 2, in violation of the provisions of the unauthorized signing or modification of the contract, the contract has not been strictly examined, there are major omissions; 3, in violation of the provisions of subcontracting, subcontracting; 4, the project organization and management confusion, resulting in the quality of the project is not up to standard, the project cost is seriously overspent. Key points: As a bidding unit, the construction party discovers that the construction party violates the contract agreement, subcontracts and subcontracts in violation of regulations. Article 13 of the administrative measures for the determination, investigation and punishment of illegal acts of contracting and contracting of construction projects: any unit or individual who discovers illegal acts such as contracting, subcontracting, illegal subcontracting and affiliation may report to the competent department of housing and urban and rural construction of the people's government at or above the county level where the project is located. 1, due diligence exemption 2, avoid major liability accidents and losses 3, the competent department to take measures to order immediate rectification 4, to avoid the unit's civil legal risks 3. The management responsibility of the Opinions is determined: (1) If the relevant personnel of the operation and management of state-owned enterprises violate the regulations during their tenure, fail to perform or fail to perform their duties correctly, resulting in the loss of state-owned assets and other serious adverse consequences, they shall be investigated for corresponding responsibility; (2) Those who have been transferred to other positions or retired shall be included in the scope of accountability, and a lifelong accountability system for major decisions shall be implemented. Operating and investment responsibilities are divided into direct responsibilities, supervisor responsibilities and leadership responsibilities according to job responsibilities. The person in charge of the enterprise shall bear direct responsibility for the following circumstances: (I), personally or jointly with others to violate national laws and regulations and internal management regulations of the enterprise; instigate, instigate, compel, connive and shield subordinates to violate national laws and regulations and internal management regulations of the enterprise; (II), without democratic decision-making, relevant meeting discussion or document signing, submission for review and other prescribed procedures, directly decide, approve and organize the implementation of major economic matters, and cause major asset losses or other serious adverse consequences; When (III) or presiding over relevant meetings to discuss or study by means of document transmission and signature, if the majority of people do not agree, directly decide, approve and organize the implementation of major economic matters, resulting in major asset losses or other serious adverse consequences; (IV). According to the relevant laws and regulations, the matters that should be regarded as the first responsible person (overall responsibility), the relevant target responsibility matters signed, or other important duties that should be performed, authorize (entrust) other leading cadres to make decisions and make improper decisions or make mistakes in decision-making. Major asset losses or other serious adverse consequences. 4. The accountability and handling specified in the Opinions: (I), according to the degree of asset loss, the nature of the problem, etc., the relevant responsible persons shall be dealt with by means of organization, deduction of salary, prohibition of entry, disciplinary action, transfer to judicial organs, etc. 1. Organizational processing. Including criticism and education, ordering written inspection, notification of criticism, admonition, suspension, transfer from work, demotion, change to non-leadership positions, ordering resignation, removal, etc. 2. Deduction of remuneration. Deduction and recovery of annual performance salary or tenure incentive income, termination or recovery of medium-and long-term incentive income, cancellation of eligibility to participate in medium-and long-term incentives, etc. Deductions and recourse (back three years) 3. Prohibition restrictions. He shall not serve as a director, supervisor or senior manager of a state-owned enterprise for five years or even for life. 4. Disciplinary action. The corresponding discipline inspection and supervision organs shall investigate and deal with them in accordance with the law. 5. Transferred to judicial organs for handling. In accordance with the relevant laws and regulations of the State, it shall be transferred to judicial organs for investigation and punishment in accordance with the law. The above treatment methods can be used alone or in combination. 2. Taking the crime of collusion in bidding as an example, the legal risk and prevention and control 1. Projects subject to public bidding: Article 3 of the Tendering and Bidding Law: The following construction projects within the territory of the People's Republic of China, including the survey, design, construction, supervision of the project, and the procurement of important equipment and materials related to the construction of the project, must be tendered: (1) Large-scale infrastructure, public utilities and other projects related to the public interest and public safety; (II) projects that use all or part of state-owned funds for investment or state financing; projects that (III) use loans or aid funds from international organizations or foreign governments. The specific scope and scale standards for the projects listed in the preceding paragraph shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval. If the law or the State Council has provisions on the scope of other projects that must be subject to bidding, such provisions shall be followed. Article 2 of the Provisions on Engineering Projects Subject to Bidding (Order No. 16 of the National Development and Reform Commission), projects that use state-owned funds or state financing in whole or in part, include: Projects that (I) use budget funds of more than 2 million yuan, and the funds account for more than 10% of the investment; Projects that (II) use the funds of state-owned enterprises and institutions, and the funds occupy a controlling or dominant position. Article 5 For projects within the scope of Articles 2 to 4 of these Provisions, if the survey, design, construction, supervision, and procurement of important equipment and materials related to project construction meet one of the following standards, bidding must be conducted: The estimated price of (I) construction single contract is above 4 million yuan; For the procurement of important (II) equipment, materials and other goods, the estimated price of a single contract is above 2 million yuan; For the procurement of (III) survey, design, supervision and other services, the estimated price of a single contract is above 1 million yuan. For the procurement of survey, design, construction, supervision and important equipment and materials related to project construction that can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be invited. 2. Forms of illegal bidding: (I) the personnel of the bidding unit to disclose to others the names and quantities of potential bidders who have obtained the bidding documents or other circumstances that may affect fair competition (II) the personnel of the bidding unit to disclose the bid price to the bidder (III) the personnel of the bidding unit to disclose the list of members of the bid evaluation committee to the bidders. 3. Administrative legal consequences of illegal bidding: If a warning is given, a fine of not less than 10,000 yuan but not more than 100,000 yuan may be imposed, and the person in charge and other persons directly responsible for the unit shall be punished according to law. If a crime is constituted, criminal responsibility shall be investigated according to law. If the acts listed in the preceding paragraph affect the bid winning result, the bid winning shall be invalid. 3. the Crime of Collusive Bidding in the Field of Bidding of State-owned Enterprises A park area project of a beautiful rural construction project in a county in Binzhou is subject to public bidding through a county public resources trading center, and a Shandong audit accounting firm Co., Ltd. is responsible for the bidding agency. Wang mou borrowed the qualification of a water municipal engineering co., ltd. in Shandong province to bid (borrow the qualification) by paying management fees and benefits. at the same time, he contacted three companies, namely, a construction engineering co., ltd. in Shandong province, an engineering co., ltd. in Shandong province and a municipal engineering co., ltd. in Jinan city, through tan mou ", after that, Ma (in the same case with Wang) arranged a holding company in Binzhou, which he operated, to pay a deposit of 280000 yuan (70000 yuan per company) to the above four companies to participate in the bidding (the deposit was transferred out by the same unit or individual). The bidding documents of the above four companies were made by Wang mou in contact with Cui mou, and the bidding quotations involved were all decided by Wang mou (the bidding documents were prepared by the same unit or individual). In order to further improve the probability of winning the bid, Wang mou and ma mou contacted a Shandong auditing and accounting firm co., ltd. through a related person of a county office of the tenderee (party a) to provide help (mediation), and Wang mou gave the technical bid of a water municipal company to party a's judges in advance before the bid opening. party a judges gave a water municipal company a high score (co-offender) in the scoring process of the judges. Subsequently, a water municipal company won the bid for the above-mentioned project at a price of RMB 4.248 million, and Ma arranged the project to Wei and others for construction (illegal subcontracting and subcontracting). Penalty results: Wang and Ma colluded in bidding, bribery, and combined punishment for several crimes. Tan mou and Shandong water municipal engineering co., ltd (borrowing qualifications) colluded in bidding. A construction engineering company in Shandong, an engineering company in Shandong, and a municipal engineering company in Jinan participated in the "bid encirclement" and committed the crime of collusion in bidding. A holding company in Binzhou, controlled by Ma, pays a security deposit and is an accomplice in the crime of colluding in bidding. Cui a production of tender documents, tender documents prepared by the same unit or individual, the crime of collusion in bidding. A county, a certain office, a related person, complicity in the crime of colluding in bidding, bribery. Shandong an audit accounting firm Co., Ltd. and a member of the evaluation committee, complicity in the crime of collusion in bidding. Ma and Wei and others construction (illegal subcontracting, subcontracting), the subcontracting contract is invalid, confiscation of illegal income, administrative punishment. Six companies, more than ten people, criminal accountability, job-related crimes, administrative penalties, and civil disputes. Description of (I) counts The crime of colluding in bidding means that bidders collude with each other in bidding to the detriment of the interests of the tenderer or other bidders, or that a bidder colludes with a tenderer in bidding to the detriment of the legitimate interests of the State, the collective or the citizens, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined. 1. Subject of crime According to the provisions of Article 223 of the Criminal Law, the subject of this crime is a special subject, that is, the tenderer and the bidder. In addition, according to the provisions of Article 231 of the Criminal Law, the unit can also become the subject of the crime. In judicial practice, the actor participated in the bidding activities, even if the actor is not the tenderer and bidder in the sense of the Bidding Law, as long as the implementation of the act of collusive bidding, to achieve the purpose of collusive bidding, can become the subject of the crime of collusive bidding (third
2022-12-07
07
2022-12
Viewpoint | Legal Risk Analysis of Invoicing by Natural Persons
Foreword Invoicing by natural persons has gradually become the mainstream of "tax financing" due to its unique advantages such as low tax burden, high security, flexibility and efficiency, and is widely used by some taxpayers. However, the author learned that since September, nearly 100 people in Shandong Province have been taken compulsory measures for issuing invoices on behalf of others. The cause was the Weihai "2.23" case, which was the first case of false invoices issued by natural persons on behalf of others in China. With the Weihai "2.23" case cracked, the security of natural persons on behalf of invoices is greatly reduced, so it is necessary for the author to sort out the legal risks of natural persons on behalf of invoices through this article, in order to have some enlightenment to readers. Advantages of 1. natural person to issue invoices on behalf In recent years, the invoice issued by natural persons as a "tax fund" has shown a continuous expansion momentum, which undoubtedly has many advantages over other "tax fund" natural persons. First, the natural person on behalf of the invoice than other "tax" has the advantage of security. Since natural persons issue invoices on behalf of tax authorities with credit endorsement, no taxpayer has ever been investigated for criminal responsibility before the Weihai "2.23" case was solved. Second, the natural person on behalf of the invoice than other "tax" has the advantage of flexible and efficient. From the perspective of tax payers, the tax payers who issue invoices on behalf of natural persons are natural persons and do not need to register companies. From the perspective of industry, all industries except some special industries can obtain formal invoices through natural persons issuing invoices on behalf of natural persons. Judging from the time of acquisition, natural persons can often obtain formal invoices on the same day when issuing invoices on behalf of natural persons. Third, the natural person on behalf of the invoice than other "tax collection" has the advantage of low tax rate. The issuance of invoices by natural persons is often subject to approved taxation, and the tax burden rate is often significantly lower than other "tax funds". The characteristics of the suspected crime of issuing invoices on behalf of 2. natural persons Very few criminals saw the prevalence of natural persons issuing invoices on their behalf, and began to study loopholes, using the Internet and mobile terminals to falsely issue invoices in the name of natural persons issuing invoices on their behalf to seek illegal benefits. In general, the natural person on behalf of the invoice related cases show three major characteristics. First, there are many participants, including taxpayers who evade taxes, intermediaries who earn commissions, and platform companies that manipulate the entire false. Although the purpose and division of labor of the three parties are different, they are organically combined to damage the interests of national tax collection and obtain illegal benefits. Second, government subsidies for poverty alleviation funds should be included in the income category. Criminals generally look for "tax depressions" to commit the crime of falsely invoicing. The so-called "tax depression" refers to the special administrative area, the local government has designated preferential policies such as taxation, local retention return and approved collection for investment promotion. Third, from making false invoices on their own to making false invoices on behalf of tax authorities, the introduction of credit endorsement on behalf of tax authorities, false means more hidden, less easy to be found by the investigation organs. Risk Tips for Invoicing by 3. Natural Persons It can be seen from the Weihai "2.23" case that the state is stepping up its crackdown on the crime of false invoicing by natural persons. To this end, the author reminds taxpayers of the following risks. First, taxpayers should issue invoices on their behalf at legal tax places, and should not arbitrarily look for "tax depressions" to issue invoices on their behalf. Second, the business involved in invoicing should be authentic, that is, the real business reproduction, shall not use the so-called "tax planning" fictitious or change the content of the business. Third, the amount of invoices issued on behalf of others should be true. The larger the amount, the greater the probability of crimes. Fourth, avoid the so-called "tax depression". "Tax depressions" have a relatively large number of invoicing and a greater probability of crime than in other regions. Fifth, the subject of issuing invoices on behalf of others must be true. Using another person's identity to issue invoices on behalf of others also constitutes the crime of false invoices. Concluding remarks Taxation is an important means of national fiscal revenue and adjustment of national income. Every citizen has the obligation to pay taxes in accordance with the law. Therefore, we must consciously establish the awareness of paying taxes in accordance with the law and prevent all kinds of false invoicing behaviors, including issuing invoices on behalf of natural persons.
2022-12-07
07
2022-12
On the afternoon of December 6, lawyer Zhou Jiakui, deputy director of the Civil Committee of Shandong Lawyers Association and deputy director of Zhongcheng Qingtai (Jinan) Law Firm, was invited by Huaneng Rizhao Power Plant to conduct legal training activities on the provisions of the Civil Code for young employees of Huaneng Rizhao Power Plant. This activity is to improve the quality of young employees in Huaneng Rizhao Power Plant, further strengthen the training of outstanding young talents, and accelerate the construction of talent echelon. Comprehensively improve the overall quality of young employees, promote young employees to plan their own growth path, achieve the growth goal from dedication to career, enhance the core competitiveness of enterprises, and promote the sustainable development of enterprises. In the process of the company's rapid development, Huaneng Rizhao Power Plant is also facing many legal risks in production and operation. In order to enhance the legal awareness of corporate employees and prevent legal risks in operation and production, lawyer Zhou Jiakui is specially invited to conduct this legal training. In this training, lawyer Zhou Jiakui interpreted the Civil Code for employees from two aspects: "the important impact of the Civil Code on the business environment and company operations" and "the important impact of the Civil Code on employees' lives. Through the summary of the general provisions, property rights, contracts, personality rights and tort liability, and the analysis of cases, young employees are reminded of the legal risks that may be encountered in the company's operation and daily life, and corresponding preventive measures are put forward. This training provides strong scientific guidance for preventing legal risks and escorting the healthy development of enterprises. After the meeting, the participants fully recognized and affirmed the training, and hoped that lawyer Zhou could continue to provide legal support for Huaneng Rizhao Power Plant in the future. Zhongcheng Qingtai (Jinan) Law firm fully implements the spirit of the 20th CPC National Congress and carries out in-depth publicity and education on the rule of law. Actively assume the social responsibility of the law firm and organize lawyers to set up public welfare legal propaganda groups. Regularly carry out a series of public welfare legal publicity activities, such as the rule of law into the campus, the rule of law into the village, and the rule of law into enterprises, so as to enhance the concept of the rule of law among the whole people and achieve good social benefits.
2022-12-07
06
2022-12
Foreword In the export declaration, export enterprises should fill in the export declaration form according to the actual situation, but in reality there are a large number of export declaration is not true, and even some export enterprises will export tax rebate rate of 0 goods declared as export tax rebate rate of 13% of the goods. If the export declaration is not true and causes negative effects, the export enterprise will face the legal risk of customs administrative punishment and serious criminal risk. Through this paper, the author combs the legal risks of false declaration and negative impact of export declaration, in order to have some enlightenment to readers. Legal Risks of 1. Customs Administrative Penalties Article 15 of the regulations on the implementation of administrative penalties of the the People's Republic of China Customs, if the name, tariff number, quantity, specification, price, mode of trade, origin, place of departure, place of arrival, final destination or other items that should be declared are not declared or declared falsely, they shall be punished in accordance with the following provisions respectively. If there are any illegal gains, the illegal gains shall be confiscated: (1) those affecting the accuracy of customs statistics, give a warning or impose a fine of not less than 1000 yuan and not more than 10000 yuan; (II) affect the order of customs supervision, give a warning or impose a fine of not less than 1000 yuan and not more than 30000 yuan; (III) affect the management of national licenses, impose a fine of not less than 5% and not more than 30% of the value of the goods; If the (IV) affects the collection of national taxes, a fine of not less than 30% and not more than 2 times the tax shall be imposed; (V) affecting the national foreign exchange and export tax refund, A fine of 10% to 50% of the declared price. Here, we need to focus on the legal risks brought about by the administrative penalties stipulated in the fourth and fifth paragraphs of Article 15. From a practical point of view, the Customs has imposed more administrative penalties in accordance with Article 15, paragraph 5. The main reason is that it is difficult for the Customs to find out the amount of tax missed and often requires the cooperation of the tax authorities. It is much easier for customs to find out the declared price than to find out the amount of tax missed. As a result, in such cases, customs often impose administrative penalties in accordance with the provisions of article 15, paragraph 5. Legal Risks of Administrative Penalties by 2. Tax Authorities Article 64 of the the People's Republic of China Tax Collection and Administration Law of the People's Republic of China. If a taxpayer or withholding agent fabricates a false tax calculation basis, the tax authority shall order it to make corrections within a time limit and impose a fine of less than 50,000 yuan. If a taxpayer fails to file a tax return and fails to pay or underpays the tax payable, the tax authorities shall recover the tax or late fee not paid or underpaid, and impose a fine of not less than 50% but not more than five times the tax not paid or underpaid. In fact, the export tax rebate of export enterprises is the responsibility of the competent tax authorities. If the export enterprise fails to fill in the customs declaration form according to the actual situation, resulting in non-payment or underpayment of tax payable, the competent tax authorities will generally impose administrative penalties in accordance with the provisions of Article 64 of the the People's Republic of China Tax Collection and Administration Law, and in serious cases, the case may be transferred to the economic investigation department for criminal responsibility. 3. criminal legal risk Article 204 of the the People's Republic of China Criminal Law. Whoever defrauds the state of export tax refunds by false export reports or other deceptive means shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than one time but not more than five times the amount of tax fraudulently obtained; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and not more than five times the fine; if the amount is especially huge or other especially serious circumstances are involved, the offender shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than one but not more than five times the amount of tax fraudulently obtained or confiscation of property. A taxpayer who, after paying the tax, fraudulently obtains the tax paid by means of deception as provided in the preceding paragraph shall be convicted and punished in accordance with the provisions of Article 201 of this Law; the portion of the tax fraudulently exceeding the tax paid shall be punished in accordance with the provisions of the preceding paragraph. Article 153 of the the People's Republic of China Criminal Law Whoever smuggles goods and articles other than those specified in Articles 151, 152 and 347 of this Law shall be punished according to the seriousness of the circumstances in accordance with the following provisions: (1) Whoever smuggles goods and articles with a large amount of tax payable or smuggles again after being given two administrative penalties for smuggling within one year shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and impose a fine of not less than one time but not more than five times the amount of tax due for evasion. Any (II) who smuggles goods or articles and evades a huge amount of tax payable or has other serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years, and shall also be fined not less than one time but not more than five times the amount of tax payable. (III) who smuggle goods or articles into which the tax payable for evasion is particularly large or where other particularly serious circumstances are involved shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and a fine of not less than one time but not more than five times the tax payable for evasion or confiscation of property. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than 10 years. For repeated smuggling without processing, according to the cumulative amount of smuggled goods and articles evaded tax penalties. In judicial practice, judicial organs often investigate the crime of fraudulently obtaining export tax rebates or smuggling in accordance with the provisions of Article 204 or Article 153 of the the People's Republic of China Criminal Law. Concluding remarks In the face of the above risks of false declaration of export declaration, export enterprises should fill in the export declaration form according to the facts, and if necessary, entrust professional customs declaration agencies or lawyers and other professionals to make customs declaration.
2022-12-06
06
2022-12
The right of access to an individual creditor in insolvency proceedings is not a statutory independent right, but a way for creditors to exercise their right to know. The creditor's right to know is divided into two main categories, one for the general right to know, one for the special right to know. The former is the right created by the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the Enterprise Bankruptcy Law) and other relevant laws for the common interests of all creditors. It is mainly exercised collectively through creditors' meetings, creditors' committees, etc. The realization of creditors' general right to know is mainly realized by the courts and managers in the process of performing their duties, actively disclosing relevant information to creditors, and generally does not require creditors to apply voluntarily, the special right to know, on the other hand, is a right created for an individual creditor and is generally exercised by an individual creditor on its own initiative, without being dependent on the creditor as a whole. The creation of the special right to know gives the initiative to protect the rights and interests of individual creditors, while the exercise of rights by individual creditors directly affects the protection of the rights of other creditors and debtors. Presentation of 1. issues The Enterprise Bankruptcy Law, as a law that combines procedural law and substantive law, is of great significance in regulating bankruptcy proceedings, paying off claims and debts fairly, and safeguarding the legitimate rights and interests of creditors and debtors. The Enterprise Bankruptcy Law has both the protection of the interests of creditors and the protection of the interests of debtors. However, in the case of the debtor's bankruptcy, there is also uncertainty about the amount and time of settlement of the creditor's claim, which makes it more difficult for the already opposing creditors and debtors to cooperate with each other in the case of the debtor's bankruptcy to achieve the purpose of fair settlement of claims and saving the enterprise. In practice, creditors often, in order to avoid the "evasion of debts" of bankrupt enterprises, often to protect their right to know, to the bankrupt enterprise administrator, the court to disclose all the information of bankruptcy proceedings. This requirement of creditors will undoubtedly bring great pressure to the work of the administrator of the bankrupt enterprise. If the creditor's right to know is not maintained, the administrator will face the risk of performing his duties. Then defining the exercise of individual creditors' right to know in bankruptcy proceedings can not only safeguard the legitimate rights and interests of other creditors, but also protect the rights and interests of debtors, but also give the administrator to do a good job of performance risk prevention. 2. creditors special right to know the main legal search. Through the search of legal provisions, the scope of the creditor's special right to know is mainly to consult the creditor's rights form, the creditor's rights register, the claim declaration material, the debtor's property status report, the creditor's meeting resolution, the creditor committee resolution, the administrator's supervision report and other financial and business information required to participate in the bankruptcy proceedings. The constituent elements and limiting elements of the exercise of the special right to know of 3. creditors. Since the protection of the special right to know does not fall within the scope of the people's court's acceptance of a civil case, the public judgment document does not have the relevant creditor's special right to know litigation. By combing through the legal provisions and typical cases of bankruptcy cases, combined with the author's experience in handling bankruptcy cases, the exercise of the creditor's special right to know needs to meet the following conditions, but also needs certain restrictions, so as to balance the protection of the rights and interests of individual creditors, other creditors and debtors. The Constitutive Elements of the Exercise of Special Right to Know in (I) 1. The subject of the inspection has the appropriate identity of a real creditor. The right to know is the right of creditors in bankruptcy proceedings and should be protected. However, there is a different understanding of whether the creditor here is a creditor who declares his claim in accordance with the law or a creditor who has been verified by the administrator, the creditors' meeting and the court ruling. I prefer the latter. In bankruptcy practice, the first-hand creditor information obtained by the administrator is the creditor's rights list provided by the debtor. Based on the time pressure of notifying the creditor to declare the creditor's rights (notifying the known creditor within 25 days from the date of accepting the bankruptcy application), the administrator generally sends the creditor's rights declaration documents directly to the creditor according to the creditor's rights list provided by the debtor without checking the creditor's rights list. However, there are often reasons such as the elimination of creditor's rights due to bookkeeping errors and the elimination of creditor's rights due to the limitation of action. The creditor in the creditor's rights list does not have the real creditor identity. At this time, if the debtor's financial and business information is provided to the "actual creditor" who no longer has the actual creditor-debt relationship, the relevant information will be leaked, undoubtedly damaging the legitimate rights and interests of the real creditor and the debtor. 2. Access should be limited to the financial and business information of the debtor involved in the insolvency proceedings. The Enterprise Bankruptcy Law III provides that individual creditors have the right to access the debtor's financial and business information necessary to participate in the insolvency proceedings, such as the debtor's property status report, the resolution of the creditors' meeting, the resolution of the creditors' committee, the administrator's supervision report, etc. If the administrator refuses to provide it without justifiable reasons, the creditor may request the people's court to make a decision; the people's court shall make a decision within five days. The scope of access to individual creditors is clearly defined in the Enterprise Bankruptcy Law III, which is limited to financial and operational information relating to insolvency proceedings. 3. The purpose of access is legitimate and should be applied to the administrator, and the administrator should provide access to the information in accordance with the law. In practice, the reason for individual creditors to apply for access to information is generally to verify the creditor's rights, but it does not rule out that there is a contradiction between individual creditors and debtors in the process of creditor's rights settlement, or because creditors who have entered the enforcement procedure want to find out the reasons for the defects of the bankruptcy procedure because the debtor enters the bankruptcy procedure. In this regard, the manager should strictly review its application materials, communicate with it for the purpose and scope of inspection, and see if there are any materials involving commercial secrets and not within its scope of inspection. If so, a confidentiality agreement should be signed, and the inspection site should also be attended by the manager. Restrictive elements of the exercise of the special right to know in (II) 1. Scope limitations. The scope of the individual creditor's application for inspection shall be limited to the scope of the materials taken over by the administrator. The manager takes over the company's materials mainly include: the company's seal, licenses, financial information, personnel information, litigation information and other documents, movable property, real estate, intangible assets, etc. Sometimes the debtor's operation and management system is not very perfect, and there may be incomplete financial account books, personnel data, and incomplete contracts related to the daily operation of the enterprise. At this time, it is not possible to require the administrator to provide financial information and operation information for individual creditors in full accordance with the requirements of individual creditors. Therefore, the scope of individual creditors applying for inspection should be limited to the scope of materials taken over by the administrator. 2. Time and place restrictions. The realization of the creditor's special right to know mainly depends on the administrator to provide individual creditors with all kinds of materials they need. However, in practice, the work of the administrator is complicated, and the requirements of individual creditors undoubtedly increase the workload of the administrator, especially the need to provide matching information for creditors in accordance with their requirements. In order to facilitate the work of the administrator, the administrator may require creditors to provide information access to creditors at the administrator's office within a fixed working day during the administrator's working hours. 3. Restrictions on ways. In the "Enterprise Bankruptcy Law" and related legal provisions, the exercise of the special right to know is stipulated, that is, "inspection", which does not include "copy, extract". However, in the theoretical circle, there is another understanding of "access", that is, it should not be limited to the meaning of access, but should be interpreted from the purpose of "access" exercise should realize the right, allowing individual creditors to copy, volume (copy), photograph, scan, and by professional knowledge of lawyers, accountants, appraisers to assist creditors to access. In this regard, in the course of actual business operations, the administrator should consider the way of access to information materials in the light of the purpose of individual creditors and whether they are related to their claims, allowing access to the scope of materials and other factors. Information Protection in the Exercise of 4. Access Creditors' access to exercise rights in bankruptcy proceedings involves the protection of trade secrets and personal information. In practice, it is very important for the manager to balance the creditor's right to know, trade secrets and personal information protection. When the administrator allows creditors to inspect the exercise of rights, as long as it complies with the law and strictly performs the duties of the administrator in accordance with the law, the following measures may be taken: 1. Require the creditor's declaration to promise in writing that the interested party shall consult the information of its claim declaration. The administrator may adopt a clause expressly indicating on the claim return that allows the interested party to access the information of its filing materials, or it may allow the creditor to provide a separate written commitment document to allow the interested party to access it. 2. If it is required to consult the information of the operation, finance and major contracts of the bankrupt enterprise, if it involves trade secrets, the creditor shall sign a confidentiality agreement. 3. If state secrets are involved, in principle, the administrator may not grant permission, or inform the interested party to apply to the court, and the court decides whether to grant access. Obstacles and remedies for 5. access to exercise rights 1. Check the exercise obstacles. In practice, there is an objective situation in which a single creditor's access to the exercise is not possible or smooth. First, there is no material to consult due to the lack of information caused by the debtor or the failure to hand over to the manager due to complicated reasons such as illegal operation. Second, the manager cannot meet the inspection requirements in time due to heavy management work. Third, it may be due to investors' reasons, worrying that creditors' inspection will bring interest disputes to investors, affecting the progress of reorganization procedures and passively or neglecting to provide access information to creditors. 2. Access to exercise routes Access to exercise rights as a way to protect the right to know, creditors exercise does not have the right to sue, can not be litigation to request the court decision, can only apply to the administrator, if the administrator does not allow, the court review and decision.
2022-12-06
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
