06
2022-12
The digital age has changed the mode of information dissemination. Convenient dissemination channels and low reproduction costs have greatly promoted the speed of information dissemination, and it has also become a nightmare for copyright owners. Although digitization enables copyright owners to reduce distribution costs and quickly send their works to hundreds of millions of audiences, creating a huge market. However, this way can also be used by infringing pirates. If the right holder protects his rights afterwards, the market may have been lost, so the copyright owner is more inclined to save himself-take technical protection measures. 1 What Are Technical Protection Measures in Copyright Law? There are no uniform provisions on the definition of technical protection measures. The World Intellectual Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performance and Recording Treaty (WPPT) adopted in 1996 have made special provisions on technical protection measures, which indicates that the provisions of technical protection measures have been recognized by the member states of the World Intellectual Property Organization. In accordance with article 11 of the WCT: "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technical measures used by authors for the purpose of exercising their rights under this Treaty or the Berne Convention to bind them to acts in respect of their works that are not licensed by the author concerned or permitted by law." The EU's definition of technical measures is: "According to its normal operation, it can be used to prevent or prohibit infringement of copyright or other legal rights related to copyright, or the European Parliament and Council Directive 96/9/EC Chapter 3 Any technology, equipment or part of the parts of the right." These translations are more mouthful. The Digital Millennium Copyright Act (DMCA) defines it as "any technology that effectively controls access to copyrighted works and effectively protects the rights of copyright owners. "The Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society adopted by the EU in 2001 is defined as" equipment, products or equipment, products or components combined with methods designed in the normal course of its operation to prevent or prevent infringement of copyright or copyright-related rights granted by law or special rights granted in the database directive ". Similarly, the translation is quite mouthful, only the general picture can be known. China revised the Copyright Law in October 2001 and incorporated technical measures into the copyright law system for the first time. However, it was not until 2006 that the Regulations on the Protection of the Right of Information Network Communication had further explanation on technical measures, but it was limited to the perspective of network communication and stipulated as "technical measures, it refers to the effective technology, device or component used to prevent or restrict the browsing and appreciation of works, performances, audio and video products without the permission of the right holder, or to provide works, performances, audio and video products to the public through the information network." Since the "Copyright Law" did not yet stipulate "audiovisual works" at that time, the expression of this provision seems to be relatively obscure and confusing, and it is limited to the scope of information network dissemination rights, and the true connotation of technical protection measures cannot be confirmed. The current "Copyright Law" stipulates that "without the permission of the copyright owner or the copyright-related right holder, deliberately avoiding or destroying technical measures, deliberately manufacturing, importing or providing others with devices or devices mainly used to avoid or destroy technical measures Components, or deliberately providing technical services for others to avoid or destroy technical measures, unless otherwise provided by laws and administrative regulations;" this provision also does not define the technical measures in the copyright law, but only divides them into three situations: one is that the actor deliberately avoids or destroys the technical measures and uses the copyright of others; the other is to provide material conditions to avoid destroying the technical measures; the third is to help others avoid or destroy the technical measures of technical services. Is it necessary to avoid infringement of technical protection measures? Let's analyze it. 2 Legitimate technical protection measures shall meet the following conditions The law protects the legal copyright and regulates the infringement, so that the license holder can take technical measures, but not all technical measures are licensed by the law, otherwise it will lead to the abuse of technical measures and hinder the dissemination of knowledge, and even produce monopoly to undermine the order of fair competition, thus deviating from the original intention of intellectual property protection. (I) protection measures must be consistent with the purpose of protecting legitimate copyright The purpose of protection measures is to protect legitimate copyright from infringement, so its purpose is only to protect the legitimate use of copyright, not to ban it all. There are many technical measures, such as software serial number, login dynamic password, firewall, security scanning, signature authentication and so on. Among these technical measures, only the technical measures taken to protect copyright from infringement are the technical measures regulated and protected by copyright law. Otherwise, it will enter the illegal category and can be ignored. The Supreme People's Court Guidance Case No. 48 can be used for reference. Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd. in the case of infringement of computer software copyright dispute. For Beijing Jingdiao Technology Co., Ltd. to realize the bundled sales of software and machines, the output data of software operation is set to a specific file format to restrict other competitors' machines from reading the data stored in the specific file format, thus extending its competitive advantage in software to the machine does not belong to the technical measures taken by the copyright owner to protect his software copyright as stipulated in the copyright law. If another person develops software to read the specific file format set by it, it does not constitute an infringement of computer software copyright. (II) protective measures must be effective The term "effective" here is relative and means that it is not easy to be avoided or cracked under normal circumstances, not that it is absolutely not avoided or cracked under any circumstances. However, if the threshold of technical measures is very low, needless to say, professionals, and even easy to be avoided or cracked by ordinary personnel, these measures obviously cannot achieve the purpose of protection, and the copyright owner is lazy to take effective protection measures. Although the copyright itself is protected, it cannot be questioned, but it cannot achieve effective protection of technical measures. It should be considered that it does not belong to the protection measures in the sense of copyright law. If it is dealt with in accordance with the destruction of technical protection measures, it is not suitable for law. (III) protection measures should not constitute a monopoly As mentioned earlier, the technical measures of legal protection are used to protect the copyright itself, not to exclude legitimate competition by means of protection. For example, the use of technical measures to bind software and hardware, and remote control, restrict users to modify or maintain, and charge high maintenance fees afterwards. Another example is that cross-regional sales are prohibited by attaching regional codes to products. Although there is controversy over this business model, if it is limited to internal sales network control, there is no need to intervene. However, if cross-regional use of products is prohibited, even if users directly "change bricks" after appropriate upgrading or modification, it has obviously violated the legitimate rights and interests of consumers and users and is inconsistent with the principle of "one-time sales exhaustion. (IV) protection measures must not conflict with fair use No matter what kind of protection measures are adopted, they shall not restrict the exercise of the right of fair use in the copyright law, that is, the thirteen exceptions stipulated in Article 24 of the copyright law. No remuneration may be paid to the copyright owner without permission, but the name or title of the author and the title of the work shall be specified, and the normal use of the work shall not be affected, and the legitimate rights and interests of the copyright owner shall not be reasonably damaged. This is also the basis for the balance of monopoly rights and public interests granted by law to copyright owners. In short, copyright technology protection measures are a self-help protection method given by law to copyright owners, which can prevent the occurrence of large-scale infringement damage in advance and avoid the loss of rights protection afterwards. At the same time, however, it should be noted that intellectual property rights benefit from monopoly rights, and that rights holders tend to expand their boundaries when using the technical measures, tend to restrict competition, tend to restrict user behavior, and tend to constantly test the bottom line of the public interest. In judicial practice, we should strengthen the consideration of technical protection measures themselves and define their protection boundaries in order to achieve a balance between public and private interests, which not only promotes the spread of literature, science and art, but also protects the interests of creators.
2022-12-06
05
2022-12
1. issues raised Housing expropriation is the act of expropriating and compensating the houses legally occupied and used by the expropriated person in accordance with the legal procedures and authority in the public interest. Carrying out the expropriation of houses on state-owned land is an important measure to accelerate the organic renewal of cities and promote the transformation of old cities and infrastructure construction. This work not only makes urban planning more reasonable but also helps to optimize the allocation of land resources. Article 17 of the "Regulations on Expropriation and Compensation of Houses on State-owned Land" and Article 21 of the "Measures for Expropriation and Compensation of Houses on State-owned Land in Jinan City" both stipulate that the subject of compensation for house expropriation is the expropriated person, and the scope of compensation includes (I) compensation for the value of the expropriated houses; (II) compensation for relocation and temporary resettlement caused by house expropriation; (III) compensation for the loss of suspension of production and business caused by house expropriation. In practice, it is very common for the expropriated person of non-residential houses to rent out the house to obtain income. In the case that the expropriated person and the lessee (the current user of the house) have not agreed on the resettlement compensation fee and still cannot reach an agreement at the time of house expropriation, how to allocate the above fees will have an important impact on the rights and interests of both parties. The Regulations on Expropriation and Compensation of Houses on State-owned Land do not have more detailed provisions on this, while the Regulations on Expropriation and Compensation of Houses on State-owned Land do 《<济南市国有土地上房屋征收与补偿办法>Item (II) of Article 31 of the Detailed Rules for Implementation stipulates that "if there is a dispute between the expropriated person and the current user of the expropriated house over the receipt of the relocation fee, temporary resettlement fee, compensation for losses caused by suspension of production or business, and relocation incentive fee, the parties concerned shall settle the dispute through consultation. If the negotiation fails and the current user of the house moves on schedule within the signing period, the house collection department may distribute the relocation fee to the current user, other payments will be temporarily kept by the housing collection department and will be handled according to the agreement after an agreement is reached." In judicial practice, how to judge the above-mentioned disputed fees? This paper intends to analyze the scope of compensation that the current user of the expropriated house can claim based on the lease contract through relevant cases. 2. Related Cases and Referee Views (I) removal fees, equipment removal fees shall be obtained by the actual payer or owner. Case 1: Re-trial of Disputes over Housing Lease Contracts in Chen Ping An and Chen Youxiang (Hubei Higher People's Court [2017] E Min Zai No. 217) Referee's view: on moving compensation. When the government expropriated the house involved in this case, the house was still within the lease term stipulated in the Lease Contract, and the government's expropriation caused the lessee Du Fang to transfer the relevant products and facilities used for the sale and operation of the front room, and thus incur moving expenses. Therefore, the government compensation of the moving compensation fee of 1000 yuan should be owned by Du Fang, the actual payer of the moving expenses. Since the above expenses have been received by Chen Pingan and Chen Youxiang, Chen Pingan and Chen Youxiang should return the moving compensation fee of 1000 yuan to Du Fang. About broadband migration fee, air conditioning migration fee. As a result of the government's expropriation of the housing involved in this case, the broadband and air conditioning in the house need to be relocated to other places and the relocation costs incurred, and the relevant relocation fees compensated by the government should be obtained by the owner of the broadband and air conditioning. According to Article 76 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", Du Fang's claim that he should obtain broadband transfer fees and air conditioning transfer fees cannot be established according to law because Du Fang did not submit relevant certificates for the installation of broadband and the purchase of air conditioners in the first, second and retrial. Broadband and air conditioner, as movable property and attachments in the house, shall be recognized as owned by Chen Pingan and Chen Youxiang, the owners of the house according to law. The broadband transfer fee of 360 yuan and the air conditioner transfer fee of 200 yuan compensated by the government shall be obtained by Chen Pingan and Chen Youxiang. The object of compensation for (II) temporary placement fee exists on the part of the expropriated or lessee and on the part of both parties to share three views of the decision. Case 2 (to the expropriated person): Zhang Fuyi, Yan Chengfang and other housing lease contract disputes (Xuzhou Intermediate People's Court of Jiangsu Province [2018] Su 03 Min Zhong No. 2234) Referee's point of view: with regard to the compensation fee of 43236 yuan for temporary resettlement advocated by Zhang Fuyi, Article 22 of the regulations on Housing expropriation and compensation on State-owned Land stipulates: "if the relocation is caused by the expropriation of houses, the housing expropriation department shall pay the relocation fee to the expropriated person; if the property right exchange is chosen, the housing expropriation department shall pay the expropriated person a temporary resettlement fee or provide a revolving house." Accordingly, the temporary resettlement compensation fee is a fee paid by the housing expropriation department to the expropriated person who chooses to exchange the property rights of the house. The fee has nothing to do with the lease behavior, and the lessee is not entitled to compensation for the fee. Therefore, the court does not support Zhang Fuyi's request. In the second instance of this case, the court held that the temporary resettlement compensation fee was the resettlement fee that should be obtained because the expropriated person chose to exchange property rights. Zhang Fuyi has applied for Yan Chengfang and Jiang Qing to refund the rent. Yan Chengfang and Jiang Qing no longer have the obligation to provide resettlement places. Zhang Fuyi's claim has no contractual and legal basis. Case 3 (owned by the lessee): Guangdong Yuchen Paint Co., Ltd. and Liang Lihua Housing Lease Contract Dispute (Guangdong Foshan Intermediate People's Court [2021] Yue 06 Min Zhong No. 7793) Referee's view: On the temporary placement fee. As Liang Lihua has obtained compensation for the right to use the land, his loss has been compensated to some extent. In this case, the compensation for the temporary resettlement fee given by the government demolition department is based on the fact that Yuchen Company is still operating on the demolished land at the time of the assessment on September 1, 2019, and the loss caused by the demolition can not continue to operate. The object of the compensation is the actual business entity, namely Yuchen Company, not Liang Lihua. Therefore, even if the lease term of Yuchen Company has expired when it actually moved out, Yuchen Company still has the right to request a temporary resettlement fee of 249495.48 yuan, which is supported by our hospital. Case 4 (shared by both parties): Ding Mingjun, Meng Xiangfeng and other housing lease contract disputes (Jinan Intermediate People's Court of Shandong Province [2022] Lu 01 Min Zhong No. 5473) Referee's view: On the temporary placement fee. According to the statement of the collection center, "the temporary resettlement fee is to make up for the cost of temporary transitional resettlement required by the housing owner for demolition". In this case, after the demolition of the house involved, the owner of the house and the actual user have the need for turnover resettlement during the transition period, resulting in the corresponding temporary resettlement expenses, so the owner of the house and the actual user should be compensated for the temporary resettlement fee. The court of first instance determined that the temporary resettlement fee was only compensated to Jiang Yakun, the actual user of the house, and did not fully consider the loss of resettlement expenses incurred by the house owner due to demolition, and the court corrected it. Considering the above situation in this case, the court supports Jiang Yakun, the actual user of the house, Ding Mingjun and Meng Xiangfeng, the owners of the house, to enjoy 50% of the temporary resettlement fee for the house involved. If the (III) parties do not agree or the agreement is unclear on the loss of production and suspension of business, it shall be determined on the basis of the term of the lease and the actual loss. Case 5: Dispute over Housing Lease Contracts between Dongying Wantai Petroleum Equipment Co., Ltd. and Xia Wei (Shandong Dongying Intermediate People's Court (2022) Lu 05 Min Zhong No. 1285) Referee's view: On the issue of loss of production and closure. The Court believes that because the lease term of the house involved has not yet expired, the demolition of the house will not allow Xia Wei to continue to operate, but also cause Wantai Company to be unable to collect the rent for the remaining lease term of the house involved, so Wantai Company also has a loss of suspension of production and business. The first-instance judgment decided that it was not improper for Xia Wei and Wantai to enjoy 50% of the compensation for this part of the loss. The premise of obtaining compensation for (IV) decoration expenses is that the behavior is approved by the lessor and the compensation amount shall not exceed the decoration compensation range determined in the relocation compensation. Case 6: Case of Retrial Review and Trial Supervision of Lease Contract Dispute between Guo Mou and Shanxi Guangjuyuan Coal Washing Co., Ltd. (Shanxi Higher People's Court [2020] Jin Minshen No. 450) Referee's point of view: on the decoration of the plant involved in the case. Guo signed a plant lease agreement with Guangjuyuan Company. The two parties did not agree on the decoration of the leased plant in the plant lease agreement, and the two parties did not reach an agreement afterwards. Therefore, how to deal with the renovation and loss of the plant involved should be handled in accordance with the provisions of the law and relevant judicial interpretations. In the counter-complaint, Guo admitted that Guangjuyuan Company hindered its renovation, and Guo did not submit evidence to prove that Guangjuyuan Company agreed to renovate the plant involved. According to the second paragraph of Article 223 of the the People's Republic of China Contract Law and Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban Housing Lease Contracts, the lessee shall bear the expenses incurred in the decoration of the leased property without the consent of the lessor. Guo Mou did not obtain the consent of Guangjuyuan Company for the decoration of the plant involved, it shall be at its own expense. Case 7: Qingdao xingda automobile sales co., ltd., Qingdao dahong special vehicle manufacturing co., ltd. and other housing lease contract disputes (Qingdao intermediate people's court of Shandong province [2022] Lu 02 min zong no 6004) Referee's point of view: Xingda Company sued Dahong Company to compensate for its decoration losses, but the loss was not caused by Dahong Company. The reason why Xingda Company could not continue to occupy and use the house involved was that the house was recovered by the government and was not subject to the subjective will of Dahong Company. Both parties clearly agreed not to bear any liability for breach of contract under such circumstances. Xingda Company can only obtain the corresponding compensation for the decoration part. Therefore, if Dahong Company is ordered to compensate for the decoration of Xingda Company beyond the scope of decoration compensation determined in the relocation compensation, it is against the principle of fairness and has no contract basis. Therefore, the court believes that it is not improper to determine the decoration loss claimed by xingda company in the first instance based on the (2020) green and yellow real estate appraisal report No. 2XXX property appraisal report made by Qingdao best land real estate appraisal consulting co., ltd. 3. Summary 1, on the collection of housing value, relocation fees and equipment relocation fees compensation subject is relatively clear. In practice, the value of the expropriated house mainly refers to the demolition compensation of the expropriated house and its appendages, which is obtained by the expropriated person, I .e. the owner of the house, and the lessee has no objection. The payment object of the relocation fee and the equipment relocation fee should be the actual payer of the relocation fee and the owner of the relocation equipment, respectively. 2. Regarding the temporary resettlement fee, the referee has different opinions in practice. The author prefers that the fee should be shared by both parties without clear agreement. There are two reasons: first, the second paragraph of Article 31 of the regulations on the Administration of Urban Housing demolition issued by the State Council stipulates: "during the transitional period, if the person to be demolished or the lessee arranges his own accommodation, the demolisher shall pay the temporary resettlement subsidy; if the demolished person or the house lessee uses the revolving house provided by the demolition person, the demolition person shall not pay the temporary resettlement subsidy." Although the regulation has been abolished, it clearly stipulates that the housing lessee is also the subsidy object of the temporary resettlement fee, which has certain guiding significance. Secondly, although Article 22 of the regulations on Housing expropriation and compensation on State-owned Land stipulates that if the house property right exchange is chosen, the housing expropriation department shall pay the expropriated person a temporary resettlement fee or provide a revolving house before the house is delivered. This is mainly because the compensation agreement is signed between the housing expropriation department and the expropriated person, and the fee should be paid to the expropriated person according to the relativity of the contract. However, it does not mean that there is no need for temporary resettlement after relocation due to demolition during the normal production and operation of the lessee (current user of the house) during the lease period. If the lessee has no right to claim the full compensation to the expropriated person, the time cost and additional expenses incurred by the lessee in finding a separate place for resettlement shall be borne by the lessee, which is detrimental to its legitimate rights and interests. 3. With regard to the loss of suspension of production and business, in the absence of an agreement between the two parties, it should not be limited to the compensation object stipulated in the demolition policy, but should be based on the actual losses caused by the demolition to both parties to the lease contract, combined with the remaining lease term, The actual business investment situation, the subject of business license and license rights and other factors shall be reasonably distributed. 4. With regard to the decoration expenses, the lessee claims to be compensated for the decoration expenses on the premise that the decoration and decoration behavior has been approved by the lessor in advance, and the amount of compensation shall not exceed the scope of decoration compensation determined in the relocation compensation. In addition, it should be noted that if the lessee's decoration is necessary for the production and operation of the industry, the above expenses can be appropriately compensated even without the consent of the lessor. 4. Risk Alert When leasing houses on state-owned land, the lessee shall clearly stipulate in the lease contract the rights and obligations of both parties after the expropriation, and try to avoid disputes over the distribution of compensation due to lack of agreement or unclear agreement. Secondly, during the lease period, the lessee should pay attention to the retention of raw materials, facilities and equipment purchase documents and production and operation related data, which is an important basis for claiming the loss of shutdown and relocation costs. Finally, at the time of expropriation, the lessee should actively communicate with the lessor and the housing expropriation department to understand the expropriation compensation policy and the progress of expropriation, and if the lessor deliberately fails to inform the resettlement compensation situation or is unable to obtain compensation fees from the lessor through negotiation, it can take litigation to safeguard its legitimate rights and interests.</济南市国有土地上房屋征收与补偿办法>
2022-12-05
05
2022-12
In order to establish and improve the guarantee mechanism for the planning, construction, management and use of supporting kindergartens in urban and rural residential areas, expand preschool education resources, and increase the popularization rate of preschool education, the State Council issued the ''Notice of the General Office of the State Council on Carrying out the Governance of Supporting Kindergartens in Urban Communities'' in 2019. Under the premise of strictly following the "the People's Republic of China Urban and Rural Planning Law" and "Urban Residential Area Planning and Design Standards, for the transformation of old urban areas (shantytowns), the development of new cities and the construction of residential areas, and the relocation of poverty alleviation and relocation, the supporting construction of kindergartens should be included in the public management and public service facilities construction planning. In the process of policy promotion, the property rights dispute of supporting kindergartens in urban and rural residential areas is a big problem. Therefore, in judicial practice, there are many disputes among the government, owners and developers on the ownership of the property rights of supporting kindergartens, which will be discussed one by one in this paper. 1. Status of Property Rights Transfer of Supporting Kindergartens in Urban and Rural Residential Areas in China According to Article 3, Item 2 of the "Notice of the General Office of the State Council on Carrying out the Management of Supporting Kindergartens in Urban Communities", rectification should be carried out one by one in accordance with the requirements of "one matter, one discussion" and "one garden, one case", and recycling, replacement, Purchase and other methods. After inquiring about the relevant regulations issued by various provinces and cities, this paper finds that the transfer of supporting kindergartens in residential areas is roughly divided into the following three situations: (I) transfer without compensation 1. The land transfer contract stipulates the transfer obligation of the construction subject and the ownership of property rights to the education administrative department, the government will offset the construction cost of the supporting kindergarten in the land transfer fee, and the construction subject will be transferred to the government after the completion of the supporting kindergarten. 2. If there is no relevant agreement in the land transfer contract, the construction subject is encouraged to hand over free of charge, and the construction area of the supporting kindergarten in the community is not included in the plot ratio accounting of the land to be supplied. 3. Although the land transfer contract does not stipulate that it must be transferred free of charge, the supporting kindergartens that belong to the construction of state-owned enterprises must be transferred free of charge. 4. Supporting kindergartens built on the allocated land shall be handed over free of charge after completion. (II) Paid Repurchase 1. There is no relevant agreement in the land transfer contract, and the supporting kindergartens built by the construction subject shall be repurchased by the government with compensation. For repurchase criteria, some provinces provide for reference to the results of land acquisition costs and construction costs audits. two.. The measures for the recovery and compensation of supporting kindergartens in urban and rural residential areas where the property rights belong to development and construction units and individuals shall be determined by the governments of various cities and counties (districts) in accordance with the local actual situation in accordance with the law and regulations. (III) determine whether handover is necessary after considering the actual situation Some provinces and municipalities make exceptions in view of special circumstances and do not necessarily require transfer (including the above-mentioned paid or free transfer). Shenyang City stipulated in the "Opinions on Strengthening the Construction and Management of Supporting Kindergartens in Urban Residential Communities in Our City": "For supporting kindergartens that have been used, if the land is supplied according to the allocation method, it shall be cleaned up in accordance with relevant policies, and the property rights unit, organizer or individual The supporting kindergartens in use are transferred to the local education department for management and use; the supporting kindergartens whose property rights have been privately owned shall not be used for other purposes." Nanchang City stipulates in the "Administrative Measures for the Planning, Construction and Use of Supporting Kindergartens in Urban Residential Districts in Nanchang City": "Before the implementation of these Measures, it was not agreed in the land transfer contract that the supporting kindergartens will be handed over to the government free of charge. Based on the principle of active, stable and differentiated treatment, the county (district) government adopts various methods to gradually clean up and recover within 2 years from the implementation of these Measures. Supporting kindergartens in residential communities whose property rights have been privately owned shall not be converted to other uses, and those that have been converted to other uses shall be rectified within a time limit within 6 months." The above-mentioned provisions, combined with the actual situation of supporting kindergartens in urban and rural residential areas, objectively confirm that the property rights of supporting kindergartens are not always transferred to government departments, but should be determined in combination with the land acquisition method, investment subject, construction cost allocation and other comprehensive factors of supporting kindergartens. If the property right has been privately owned, it is only required not to be used for other purposes. Cases 2. the Ownership of the Property Rights of Supporting Kindergartens in Urban and Rural Residential Areas and the Main Principles of the Referee The previous article describes the relevant policies of some provinces and cities in China on the transfer of property rights of supporting kindergartens in urban and rural residential areas. If the situation that needs to be transferred to the government free of charge is excluded, whether the property rights of supporting kindergartens are owned by developers or by all owners is currently not clearly stipulated in relevant laws and regulations in China. Therefore, there are different debates in judicial practice, and the judgments of the courts on the ownership of kindergartens in urban and rural residential areas are also different. (I) supports the case that the property right of the supporting kindergarten is owned by the developer. 1.(2016) Wan 01 Min Zhong No. 2278 Civil Judgment Summary of the decision: The court held that the kindergarten planned in the community involved in the case was independent in construction, could be used exclusively, and could be registered as the object of ownership of a particular subject. Therefore, the above-mentioned kindergarten belongs to the exclusive part of the "the People's Republic of China Property Law", and because the developer has agreed in the housing sales contract signed with the buyer that the above-mentioned housing construction not included in the allocation belongs to the seller, so the above-mentioned supporting kindergarten belongs to the developer. 2.(2017) Su 03 Min Zhong No. 1026 Civil Judgment The main point of the judgment: The court held that the kindergarten house involved in the case is not shared by all the owners of the community. The reasons are as follows: First, the kindergarten involved in the case does not belong to the legal common part. Article 73 of the the People's Republic of China Property Law stipulates: "The roads in the building area, It belongs to the owners, except for those that belong to urban public roads. The green space within the building division belongs to the owners, except for those that belong to the urban public green space or that expressly belong to individuals. Other public places, public facilities and property service houses within the building area belong to the owners." The planned use of the kindergarten involved in the case is a kindergarten. The kindergarten is a single building in the community. It has structural independence and utilization independence. It conforms to the characteristics of the exclusive part and is a legal exclusive part. Second, both parties agree that the kindergarten involved in the case is a public kindergarten, and it is not a public kindergarten that should be transferred to the education department according to national or local regulations. Third, the kindergarten involved in the case is not a common part of the agreement; fourth, the community industry committee involved in the case recognized the kindergarten housing department developer investment and construction, but did not provide sufficient evidence to prove that the cost of the kindergarten involved in the case was eventually spread into the development and construction costs of commercial housing, and constitute a component of the external sales price of commercial housing. And although the sales price of commercial housing is related to the development cost, it is not the decisive factor. The price of commercial housing is related to many factors such as the real estate market environment, the district location, and the developer's business model. Whether the construction cost of the kindergarten is amortized into the development cost of the community does not necessarily lead to changes in the sales price of commercial housing. To sum up, the court rejected the claims of the community industry committee. 3.(2017) Wan 05 Line Final 94 Administrative Judgment Summary of the judgment: the court held that according to the "the People's Republic of China Construction Project Planning permit" issued by the developer and the local county construction bureau, the certificate of unshared area, the description of the cost of separate accounting for kindergarten costs and other evidence materials, it is proved that the kindergarten involved in the case is a commercial house that is independently planned, independently constructed and exclusively usable, and should be recognized as the exclusive part stipulated in the the People's Republic of China property Law. In addition, the local county construction bureau required in the "Planning and Design Conditions" that "the community should consider setting up kindergartens, residents' fitness activity spaces or places, property management and security facilities, etc.", and did not specify that supporting kindergartens are public facilities or public places. Therefore, the appellant's appeal reason that the kindergarten should belong to the public facilities or public places in the community is not supported. Through the above cases, it can be seen that the court tends to have the property right of supporting kindergartens in urban and rural residential areas owned by developers. The argument mainly includes the following three aspects: first, supporting kindergartens in urban and rural residential areas are independent in construction, can be used exclusively, and can be registered as the object of ownership of specific owners, and it has been agreed in the housing sales contract that the housing buildings not included in the kindergarten shall be owned by developers. Second, whether the construction cost of the supporting kindergarten is amortized into the overall construction cost of the community; Third, the developer provides evidence such as proof that the kindergarten area is not apportioned and the cost is accounted for separately, proving that the supporting kindergarten is a commercial house that is independently planned, independently constructed and can be used exclusively. The (II) supports the case that the property right of the supporting kindergarten is shared by all the owners. 1.(2020) Wan 0102 Min Chu No. 7456 Civil Judgment Summary of the judgment: The court held that the community involved in the case was developed and constructed by Zhongxiang Company. According to Article 73 of the the People's Republic of China Property Law, other public places, public facilities and property service houses within the building area belong to the owners. The kindergarten in the community involved in the case belongs to the community supporting facilities, and its ownership shall be owned by all owners. 2.(2016) Lu 16 min zong No. 220 civil judgment Summary of the judgment: the court held that the developer and the owner signed a house purchase contract, but there was no agreement on the ownership of the supporting kindergarten. According to the planning and design drawings and functions of the community involved in the case, it can be determined that the supporting kindergarten is a single building independent of other buildings, and there is no separate "Land Use Certificate", "Construction Land Permit", "Construction Permit" and other related procedures. After completion, it has not been accepted by relevant departments. The developer cannot provide sufficient evidence to prove that it has separately accounted for the "investment" of the supporting kindergarten when developing the community, and should bear the legal consequences of the inability to provide evidence. 3.(2016) Lu 17 Min Zhong No. 1735 Civil Judgment Summary of the judgment: The court held that the reasons why the ownership of the kindergarten house involved in the case belongs to the owner are as follows: First, the commercial housing sales contract signed between the developer and the owner of the community involved in the case did not stipulate the ownership of the house occupied by the supporting kindergarten, and the above-mentioned house has not yet For the property right certificate, the developer cannot provide evidence that the property right of the house belongs to it; second, the planning drawing of the planning department of the Development Business Daily shows that the district planning includes kindergartens. Third, the developer cannot provide evidence to prove that it will separately account for the "contribution" of the houses occupied by the kindergarten when developing and constructing the residential area involved. Fourth, the developer claimed that the supporting facilities include kindergartens in the development case and in the publicity, so that the owner can obtain reasonable trust in the corresponding supporting facilities by purchasing the proprietary parts. To sum up, the supporting kindergartens involved in the case should be shared by all owners. Through the above cases, it can be seen that the court tends to share the property rights of supporting kindergartens in urban and rural residential areas. The argument mainly includes the following four aspects: first, whether the ownership of kindergartens in urban and rural residential areas is agreed in the commercial housing sales contract, and whether the planning drawings show that the district planning includes kindergartens; Second, whether the area of supporting kindergartens has been shared and borne by the owners when purchasing houses; Third, whether the construction cost of supporting kindergartens is included in the development cost of commercial housing and constitutes an integral part of the housing price; fourth, whether the developer advertises the kindergarten as a public supporting facility in the community in the sales publicity materials, resulting in reasonable trust of buyers. Legal Analysis on the Ownership of the Property Rights of Supporting Kindergartens in Urban and Rural Residential Areas in 3. Whether it is the previous "the People's Republic of China Property Law" or the current "the People's Republic of China Civil Code", there are no clear regulations on the property rights of supporting kindergartens in urban and rural residential areas. However, through the previous case analysis, it can be seen that the court's judgment of the ownership of the property rights of supporting kindergartens in urban and rural residential areas can be roughly divided into the following two views. Supporting kindergartens in urban and rural residential areas of (I) are structurally independent In judicial practice, if it is considered that the supporting kindergarten in urban and rural residential areas is structurally independent, the supporting kindergarten conforms to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Distinguishing Ownership of Buildings" Secondary specialized school has some characteristics. Based on the principle of autonomy between the parties to the contract, the court will give priority to respecting the agreement between the two parties to the contract when judging the ownership of the kindergarten property. When the two parties to the contract have no agreement or the agreement is unclear, the developer is required to show relevant evidence in the planning, construction process and subsequent sales process, such as district planning drawings, kindergarten area unallocated certificate, cost separate cost accounting cost description and sales publicity materials, etc, it is used to prove that it has a property right to the kindergarten, otherwise it shall bear the adverse consequences. The supporting kindergartens in urban and rural residential areas in (II) are not structurally independent. If it is considered that the supporting kindergartens in urban and rural residential areas are not structurally independent, they are regarded as public places or public facilities in the community. According to Article 274 of the the People's Republic of China Civil Code: "... other public places within the building area, public facilities and property service houses belong to the owners." The kindergarten should be shared by all owners. The court should focus on the non-independence of the supporting kindergarten to balance the interests of both parties. 4. epilogue It can be seen that after the "Notice of the General Office of the State Council on Carrying out the Governance of Supporting Kindergartens in Urban Communities" was issued, in response to the document, "The completed supporting kindergartens in the community should be handed over to the local education administrative department in a timely manner in accordance with the regulations, and those that have not been handed over to the local education administrative department should be completed within a time limit, and effective measures should be taken to recover those that have been diverted for other purposes." Many local governments have successively issued management measures to provide for the transfer of property rights of supporting kindergartens in urban and rural residential areas. However, the scope of property rights transfer does not cover all supporting kindergartens in urban and rural residential areas. Some local governments still allow supporting kindergartens to be privately owned, provided that they are not used for other purposes. In judicial practice, there are also great differences in the judgments of local courts on the ownership of property rights of kindergartens in urban and rural residential areas. It can be seen that the current legal provisions on the ownership of supporting kindergartens in China are not perfect. In order to better establish and improve the urban and rural residential areas supporting kindergarten planning and construction and management of the use of security mechanisms, the expansion of pre-school education resources, improve pre-school
2022-12-05
05
2022-12
Viewpoint... The digital age is the end of property ownership?!
Thirty years ago, Vice President Al Gore and Secretary of Commerce Brown formally announced the implementation of the "National Information Infrastructure" plan in the United States, which is known as the "Information Highway" plan. At that time, the U.S. Department of Commerce released the emerging digital economy. This report put forward a point of view: the core resources that play a decisive role in the economy will change from "currency" to "data". This is the beginning of the digital era. The United States has successively laid out cloud computing, big data, advanced manufacturing, 5g, quantum communication and other frontier fields, And put forward the "digital government" strategy. At that time, personal PC was still an expensive luxury in China, and university computers were also taken care of in special computer rooms. 286, 386, win95 and win98 represented that era, and even DOS games of "Legend of Sword and Fairy" could dominate the market. Thirty years later, China has also stood on the runway of the digital economy. At the Global Supercomputing Conference in Frankfurt, Germany, the "Shenwei · Light of Taihu Lake" from China topped the list of the "Top 500 Global Supercomputers. This is the first computer in China that does not use American chip technology and runs at the world's first speed. It has three "world first" indicators: peak system performance 1.25 billion billion times per second, continuous performance 0.93 billion billion times per second, and performance per watt 6.05 billion times per watt. Its 1-minute computing power is equivalent to 7.2 billion people around the world using a calculator to calculate continuously for 32 years. What can this computing power do? It can achieve a million-core-scale global 10-kilometer high-resolution numerical simulation of the Earth system, which will comprehensively improve China's ability to mitigate and prevent extreme weather and natural disasters; the National Computational Fluid Dynamics Laboratory's return path for Tiangong-1 will provide accurate predictions for its smooth return home; and the digital age is already before us. The China Academy of Information and Communications Technology believes that the core of the digital age is the two successive processes of industrial digitization and digital industrialization, turning the existing industry, life, culture, and management into a digital drive to realize industrial digitization, and the huge value of the data itself can Stimulate industrial upgrading and the birth of new industries, and realize digital industrialization. Thus forming a spiral upward cycle, increasing the internal drive for economic development, the digital age has unfolded a magnificent picture. Big data, Internet of Things, artificial intelligence, 5G industry and block chain "digital industry" are surging like waves and evolving into various industrial forms-unmanned driving, intelligent logistics, black light factory....... However, when the property is digitized, where is our property? How to protect the property ownership? Has the property ownership come to an end?! The Dilemma of 1. Digital Property Property ownership is a concept given by law, and law has a lag. But in the digital age, this lag is even more pronounced, even putting our property ownership in a bind. Ownership is the right of the right holder to possess, use, gain and dispose of his property (movable or immovable) according to law, also known as "right to the world", which is a classic right of free control rooted in civil law. The Civil Code also recognizes the value of virtual property, but how to deal with the creation, use, management and protection of digital property? In the digital age, all this will be broken. When we register users of the network platform, we habitually skip the user agreement, usually ignore the various management tips and privacy policies of the platform operators, and click the "agree" button to confirm. And behind this, the ownership we think we should get is being severed by a strong platform agreement. On November 17, 2022, the game company Blizzard suddenly announced that it would end its license agreement with Netease until January 23, 2023: from 0:00 on January 24, all national service games such as World of Warcraft and StarCraft series will cease operation. Netease "is very sorry that Activision Blizzard announced the suspension of cooperation first, we will have to accept this decision", the property formed by countless players is unknown. But according to the platform agreement you ignored, although the property has value, you are not allowed to make any transactions. The ownership you believe may be limited to your own use and only for the duration of the platform operator's license. The rights of possession, use, income and disposition at our disposal are limited to "a time-limited right to use". You can't actually control him, you can't transfer him, you can't generate any income, and you'll be arbitrarily revoked all rights at any time. Is this the tragic end of digital property ownership? Some people say that this is virtual property, not enough. So, let's look at the books again. We can buy and own a book in the real world, we can choose to read or decorate our room, we can lend, donate, transfer old books online, this book is our property. And what about books in electronic form? E-books and physical books not only change in form, but directly deny the current ownership system. In the case of a physical book, you can transfer or mail the book to the next user for a fee or free of charge. But if it is an e-book, where is the data? If your e-book is stored on the platform and you only read it in real time, for example, if your book is read through Amazon e-reader, you can hand over your e-book reader to the other party, which means handing over your entire library and valuable electronic equipment, just as it is absurd that you must hand over the physical book to the other party together with the bookshelf or even the study. Another way to consider is to keep your equipment, only send the file to your friends, but the problem is that this process actually creates one or more new copies, which is precisely the "copying" behavior prohibited by copyright law, and enters the category of infringement consideration. So where are your rights to possess, use, gain and dispose of digital products? How do you exercise your ownership? The dilemma arises...... 2. who deconstructed our ownership In the face of cheap data-based products, such as e-books, the price is often only the 1/2 of physical books, or even lower. For readers who pay attention to the content, it has a natural price attraction. Even you can exchange for free reading by watching advertisements for a certain period of time. This is the premise and basis for us to accept him, so more people choose to "subscribe" every day. Digital products instead of buying. However, this kind of subscription is obviously not the subscription to physical books and periodicals that we understand every day. No matter whether we continue to subscribe or not, these physical newspapers and periodicals are controlled by you and no one can take them away. However, if you stop subscribing to the platform, your account may be emptied and nothing will remain. Even if the platform compromises, you need to rely on the platform to exist forever, otherwise it will still be gone. The platform uses cheap data replication, or even just network "access", without having to spend huge amounts of replication, transportation, and warehousing costs. Of course, it is happy to see it. Moreover, it has directly cut off the resale of the second-hand market. All those who want to obtain services must pay directly to the platform. All people will become the same customers again. For the platform, the blowout demand has brought the market to life. Will creators receive more as a result? This is just a good assumption. If digital books have only one export platform. When the creator asks for a license fee to be added to the huge sales revenue, the platform may directly take the work off the shelf on the grounds that it involves an infringement dispute, breaking its transmission chain. The corresponding consumers must also accept the result that the books they subscribe to disappear without their consent and cannot get the corresponding compensation. If this situation continues to be deduced and developed, you will find that our knowledge, thoughts, hobbies and trends will be mastered by the platform. He only provides what he thinks he wants to provide, and then by guessing what you like, you will continuously weaken your ability to obtain information and think. Finally, everyone's thoughts and insights will be "cloud" to the platform, not only losing ownership, but even people as the main body of thinking will slowly lose. Technology really is a revolution, it deconstructs everything, doesn't it? 3. what else can we do in the face of the impending loss of digital ownership? All this is happening quietly, whether conscious or indifferent. The Institute of Electrical and Electronics Engineers (IEEE), an association of engineers, scientists, and other technologists, is one of the most influential organizations in the world that has developed a large number of standards and specifications for our society, as well as the establishment of a working group to develop a "consumer-owned personal digital property" (DPP) standard as early as ten years ago, but it has not yet been released. The law must face change: (I) platforms should be denied misleading ownership and false promises. Let the consumer know clearly whether his payment is "all" or "license", not just "buy immediately". If the consumer really only wants to temporarily own, such as leasing, but the platform cannot provide only temporary license in the name of ownership. This kind of non-committal misleading or intentional false promise makes consumers lose the right to free choice. In this regard, of course, supervision should be strengthened. We are not only concerned about network security, but also whether our property is safe after paying the consideration. Abuse of (II) Restriction (EULA) End User License Agreement (EULA) The end-user license agreement is drawn up unilaterally by the platform, often at length. There are some standardized platforms, license agreements and even hundreds of pages. Reading this obscure agreement takes longer than reading the book I want to buy. Moreover, you simply don't know where to hide the trap in the manuscripts drawn up by these professionals. So we often choose to tick the OK after consent, but this (EULA) end user license agreement. The Civil Code makes a transformative provision for format clauses, "If the party providing the format clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." But the rejection of some of the standard terms of the contract means that we must have acquired ownership? This is not a black or white question. It is still within the scope of the contract between the two parties, and it still needs to be confirmed by both parties. It is still necessary to regulate the legal relationship that is constantly breaking the balance and being destroyed. (III) digital protections will remain the armour of platforms to resist ownership Even if we break through the (EULA) end-user license agreement, the machine code limitations of digital protection measures (e. g., self-destruction, remote deletion) remain an obstacle for owners to control their property. Digital protection measures themselves are major measures that are transferred to the platform in the development of the digital industry, which can independently determine how you access, use and recover your digital assets. For example, the original Microsoft software genuine verification lock hardware or interfere with the normal use of users, how to balance digital protection measures and user ownership, will face great challenges. These let a person feel the power of technology, the pressure of these protective measures, let a person like a throat. Of course, there are still a number of issues that need to be considered and resolved. Besides, there are e-commerce, digital currencies, digital collections, financial data, software, personal information data, and all kinds of digital assets of enterprises, how do we face the surging digital economy, digital society, digital government and digital ecology......
2022-12-05
02
2022-12
Presentation of 1. issues At the entity level, the main contract and the guarantee contract are mainly subordinate to the contractual relationship, and at the procedural level, in practice, most of the main-subordinate contract agreement supervisor jurisdiction is different, at this time still follow the principle of contract subordination? This paper takes "whether the validity of the arbitration agreement of the main contract can be expanded to apply to the contract, and whether the judicial organ should accept and how to deal with the guarantee contract" as the focus, combined with examples, with a view to clarifying the main contract at the procedural level on the jurisdiction of the agreement of the judicial disposal of the problem. The cited example Company A applies to Bank B for financing. Both parties sign a Financing Contract with a financing amount of RMB 0.2 billion. The main contract stipulates that the jurisdiction is N Arbitration Commission. In order to guarantee the performance of Company A's obligations to Bank B, C entered into a Guarantee Contract with Bank B and undertook to assume an irrevocable joint and several liability guarantee for the obligations under the above-mentioned main contract, with the jurisdiction of the M court from the contractual agreement. After Bank B paid the financing amount to Company A, as Company A experienced significant operational difficulties and began to owe interest on the financing, which constituted a breach of contract, Bank B then filed an arbitration with the N Arbitration Committee on the main contract dispute, requiring Company A, the principal debtor, to assume responsibility for the return of the financing amount and the corresponding losses. (as shown in the figure) As can be seen from the above figure, there is a master-slave relationship between the two contracts in this case, when the principal debtor A company overdue payment of the due debt constitutes a default, creditor B Bank chose to first to the N arbitration committee on the main debt of the arbitration. At this point, the following questions arise: 1. Can the creditor B Bank file an arbitration with the N Arbitration Commission on the guarantee claim against C? (Is the arbitration agreement agreed in the main contract effective as the guarantee contract?) 2. Can the creditor B bank bring a lawsuit to the M court together with the principal creditor's right and the guaranteed creditor's right? (How to determine the competent authority when the principal-subordinate contract stipulates that the competent jurisdiction is inconsistent?) 3. After the creditor B initiates arbitration, can the creditor B separately file a separate lawsuit for the guarantee contract dispute with the M court? (Does the creditor have a separate right of action against the joint and several liability guarantor?) 4. If the creditor B brings the lawsuit of guarantee contract to the M court, should the M court accept the case? If the case is accepted, how should the subsequent judgment be made? (The acceptance and judgment of the lawsuit of joint guarantee contract in the arbitration of the main contract?) 2. association law (I) Article 21 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Code on the Guarantee System: If an arbitration clause is agreed upon in the main contract or the guarantee contract, the people's court shall have no jurisdiction over the dispute between the parties to the contract in which the arbitration clause is agreed. If the creditor sues the debtor and the guarantor together, the competent court shall be determined in accordance with the main contract. Where the creditor may sue the guarantor alone and only the guarantor in accordance with the law, the competent court shall be determined in accordance with the guarantee contract. (II) (abolished) Article 126 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Guarantee Law (abolished and now replaced by Article 21 of the above-mentioned Judicial Interpretation of the Guarantee System): If the debtor of joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period stipulated in the main contract, the creditor may directly require the guarantor to bear the guarantee responsibility within the scope of its guarantee. Article 5 of the (III) the People's Republic of China Arbitration Law: If the parties reach an arbitration agreement and one party sues the people's court, the people's court shall not accept it. (Arbitration clause has the compulsory effect of excluding the jurisdiction of the court) Article 21 of the (IV) the People's Republic of China Arbitration Law stipulates: "The parties applying for arbitration shall meet the following conditions: (1) there is an arbitration agreement; the (II) has specific arbitration claims and facts and reasons; and the (III) shall fall within the scope of acceptance of the Arbitration Commission." (The judgment of the principal-subordinate relationship of the contract is not a statutory consideration for the arbitration institution to decide whether to accept the case) Article 24 of the (V) the People's Republic of China Arbitration Law (Revised) (Draft for Comment) stipulates: "If a dispute involves a master-slave contract, and the arbitration agreement between the master contract and the slave contract is inconsistent, the agreement of the master contract shall prevail. If there is no arbitration agreement in the slave contract, the arbitration agreement of the master contract shall be valid for the parties to the slave contract." 3. Practice Review (I) the validity of the arbitration agreement of the main contract shall not be extended to the subordinate contract. There are three reasons for this: First, from the perspective of laws and regulations, Article 21 of the Judicial Interpretation of the Guarantee System expressly states: "If the main contract or the guarantee contract stipulates an arbitration clause, the people's court shall have no jurisdiction over the dispute between the parties to the contract that stipulates the arbitration clause." The jurisdiction of the court can be forcibly excluded for the main contract or guarantee contract that has agreed on the arbitration clause in advance. However, in the second paragraph of the above judicial interpretation: "If the creditor sues the debtor and the guarantor together, the competent court shall be determined according to the main contract", it is stated that the principal-subordinate contract and the application of the principal contract to determine the competent court are not stipulated in the principal-subordinate contract, that is, there is no statutory situation that excludes the jurisdiction of the court from the contract. In addition, according to article 5 of the Arbitration Act, the arbitration clause has the mandatory effect of excluding the jurisdiction of the court. Second, from the point of view of the independence of the arbitration agreement and the relativity of the contract, according to article 19 of the Arbitration Law: "The arbitration agreement exists independently, and the modification, termination, termination or invalidity of the contract does not affect the validity of the arbitration agreement". And Article 21 of the Arbitration Law, from the point of view of weightlifting, since the change, termination, termination and invalidity of the contract will not affect the validity of the arbitration agreement, only by the subordinate nature of the main contract, can not cause the expansion of the validity of the arbitration agreement. Third, the classic case view of the Supreme Court is mainstream: Judicial precedent 1: Chengdu Youbang Stationery Co., Ltd. and Wang Guojian applied for revocation of Shenzhen Arbitration Commission (2011) Shen Arbitration Zi No. 601 Arbitration Award [(2013) Min Si He Zi No. 9]] Views of the Supreme Court: (Refer to the following reply) The case-related security contract did not agree on an arbitration clause, and the arbitral tribunal's opinion that the main contract had an arbitration clause and that the security contract as a subordinate contract should be bound by the arbitration clause in the main contract lacked a legal basis. The arbitral tribunal heard and made an award on a security contract that did not agree on an arbitration clause, and the guarantor Wang Guojian applied to set aside the grounds for the arbitration award involving his part as a guarantor. In view of the fact that Wang Guojian and Qi Xiang and Chen Jianjun are co-guarantors, the three have a common legal status, and the ruling on the liability of the three persons is expressed in item (IV) of the award, the people's court should set aside the award as an indivisible award. Thus, the Supreme People's Court held that the guarantee contract was not bound by the arbitration clause of the main contract. At the same time, the guarantee contract dispute case of Xi 'an Maike Metal International Group Co., Ltd. and Jinchuan Group Co., Ltd. [(2017) No. 47 of the Supreme People's Court] also involves the dispute over the jurisdiction of the principal-subordinate contract supervisor. The Supreme People's Court once again quoted the reply letter and stressed once again that the validity of the arbitration agreement of the principal contract cannot be extended to the subordinate contract. Judicial precedent 2: dispute over performance guarantee between Huizhou weitong real estate co., ltd. and Huizhou municipal people's government [(2001) min er zong zi no 177]] The Supreme Court's view: The case creditor Weft Company and the guarantor Huizhou City Government in the "performance confirmation" signed by both parties did not agree on the arbitration clause. This case is a performance guarantee dispute filed by Weitong Company against Huizhou Municipal Government, and the contract dispute between Weitong Company and Jiacheng Company is two different civil relations. The performance guarantee civil relationship formed between Weitong Company and Huizhou Municipal Government is not bound by the arbitration clause agreed in the contract between Weitong Company and Jiacheng Company. The parties did not choose arbitration to resolve the dispute in the performance confirmation signed. The lawsuit of Weitong Company complies with the provisions of Article 108 of the the People's Republic of China Civil Procedure Law, and the Guangdong Higher People's Court shall accept it. The Higher People's Court of Guangdong Province ruled that the arbitration clause in the contract was clear, thus excluding the jurisdiction of the people's court over the performance guarantee dispute, and ruled that the lawsuit of Tongweitong Company should be corrected according to law. Contrary view: According to Article 24 of the the People's Republic of China Arbitration Law (Revised) (Draft for Comment), "If a dispute involves a master-slave contract, and the arbitration agreement between the master contract and the slave contract is inconsistent, the agreement of the master contract shall prevail. If the slave contract does not agree on an arbitration agreement, the arbitration agreement of the master contract shall be valid for the parties to the slave contract." This provision actually expands the validity of the arbitration agreement of the main contract, showing that the legislator has expanded the scope of the validity of the arbitration agreement to apply the subordinate attribute of the main contract in order to improve the legislative purpose of judicial efficiency. However, the author believes that the arbitration clause generally only strictly restricts the parties to voluntary arbitration, and not only considers the subordinate nature of the guarantee contract, and applies the law of substantive law to the level of procedural law. This provision not only conflicts with other provisions of the Arbitration Law, but also leads to some problems in judicial practice. Therefore, it is suggested that this provision should be adopted carefully. In summary, the arbitration clause in the main contract does not necessarily bind the parties to the security contract, nor should its effect be extended to the contract. Therefore, in the cited example, Bank B may not apply to the N Arbitration Commission together with the guarantee contract (the arbitration agreement may not be extended to a subordinate contract), nor may it bring the main claim against Company A together with the guarantee claim against C to the M court (the arbitration agreement excludes the jurisdiction of the court). After the (II) creditor has initiated arbitration on the main claim (or has not initiated arbitration), the judicial treatment of a separate lawsuit for the guarantee contract dispute. According to Article 21, paragraph 3, of the Judicial Interpretation of the Security System: If the creditor may sue the guarantor alone and only the guarantor in accordance with the law, the competent court shall be determined in accordance with the security contract. According to Article 18 of the the People's Republic of China Guarantee Law and Article 126 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Guarantee Law (abolished and now replaced by Article 21 of the Judicial Interpretation of the Guarantee System), if the debtor of joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period stipulated in the main contract, the creditor may directly require the guarantor to bear the guarantee responsibility within the scope of its guarantee. From the above, in terms of procedure, creditors have the legal right of action against the guarantor of joint and several liability. Through searching cases and consulting relevant professional articles and materials, the author found that in judicial practice, the court under the jurisdiction of the guarantee contract dispute will have the following disposal methods (refer to the following figure). According to the relevant classic cases of the Supreme Court, the mainstream view is that creditors directly claim the guarantee responsibility to the guarantor and the people's court should accept it, however, the scope of liability for security cannot be determined because the principal obligation has not yet been determined, and in principle, the scope of the principal obligation should be confirmed by consensus of the parties or by arbitration before proceeding with the proceedings. Specific as shown in the following figure: Representative jurisprudence 1. Case of Dispute over Guarantee Contract between AVIC Huide Wind Power Engineering Co., Ltd. and Liaoning Gaoke Energy Group Co., Ltd. [(2015) Min Er Zhong Zi No. 125]] Interpreting the views of the Supreme Court: 1. The focus of the dispute in this case: the main contract agreed on the jurisdiction of arbitration, the guarantee contract did not agree on the jurisdiction of arbitration, the creditor directly to the guarantor to claim the responsibility of the guarantee, whether it can be supported by the people's court. 2. Interpretation (1) Creditors sue guarantors in the law-creditors have the legal right to sue, the court should file a case, emphasizing the irrationality of the court's decision not to accept and reject the prosecution. According to Article 18 of the the People's Republic of China Guarantee Law and Article 126 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Guarantee Law (abolished and now replaced by Article 21 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the the People's Republic of China Civil Code), the debtor of joint and several liability guarantee fails to perform its debts at the expiration of the debt performance period stipulated in the main contract, the creditor may directly require the guarantor to assume the guarantee liability within the scope of its guarantee. In this case, AVIC, in accordance with the "Guarantee Letter", sued Gaoke to assume the responsibility of the guarantee, in accordance with the law. (2) Because the principal obligation has not been determined, the scope of security liability has not been determined, triggering the guarantor to exercise the right of defense-the court is unable to conduct a substantive hearing of the principal creditor's debt relationship. The lawsuit request of the creditor AVIC Company is to claim that the guarantor Gaoke Company shall bear the guarantee responsibility and perform the obligation of unpaid payment on behalf of the debtor Ruixiang Company. The entity right of AVIC Company comes from the Supply Contract and Supplementary Agreement signed with Ruixiang Company. As the guarantor, Gaoke Company can also exercise the debtor's defense right in accordance with the provisions of the Supply Contract and Supplementary Agreement and the performance of the contract, including whether AVIC has fulfilled its supply obligations in accordance with the quantity and quality agreed in the contract, whether Ruixiang has fulfilled its payment obligations, whether it should continue to pay for the goods and the amount owed, etc., to carry out a physical defense. According to the "Supply Contract" and "Supplementary Agreement" of AVIC and Ruixiang, the above issues are disputes arising from the performance of the "Supply Contract" and "Supplementary Agreement" and fall within the scope of arbitration jurisdiction. If the People's Court conducts a substantive hearing of the above-mentioned dispute, it will inevitably infringe the right of AVIC and Ruixiang to choose arbitration to resolve disputes based on the agreement of the arbitration clause, and violate the principle of party autonomy. Therefore, when the arbitration jurisdiction is stipulated in the main contract, but the arbitration jurisdiction is not stipulated in the guarantee contract, the scope of the main debt should be confirmed through consensus between the parties or arbitration in principle. If the creditor only brings a lawsuit against the guarantor, the guarantor will defend the agreement and performance of the main contract, which will inevitably involve the issue of whether the court can hear and judge the disputes that have been agreed to the arbitration award, this involves both the right of choice of arbitration proceedings for the parties to the agreed arbitration jurisdiction and the scope of the exercise of the people's court's judicial power. In this case, Ruixiang, the third party in the original trial, did not waive its arbitration jurisdiction agreement with AVIC and held that the principal debt should be determined through arbitration. Therefore, for the high-tech company on the scope of the main debt can not be determined, the scope of the guarantee liability can not be determined, in the main debt has not been determined by the arbitration award, the air company directly requires it to bear the responsibility of the guarantee, belongs to the claim of insufficient evidence, according to law should be supported. 5. related recommendations To sum up, returning to the four problems mentioned in the cited example, the author believes that in order to avoid the complicated judicial disposal relationship similar to that under the jurisdiction of the supervisor and maintain the security and stability of creditor's rights, attention should be paid to the consistency of the dispute resolution methods of the master-slave contract, so as to avoid the subsequent separate guarantor claiming rights, the adjudication authority thinks that the dispute over the master contract should be resolved first and the scope of the master debt can be determined guarantee liability, this provides an opportunity for debtors and guarantors to evade their responsibilities and transfer property, ultimately affecting the realization of debt.
2022-12-02
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2022-12
Case Import Zhang and Li got married on May 11, 2012 and gave birth to a daughter Zhang Xiaomou in November 2013. In 2018, both parties were divorced by court decision. The legitimate daughter Zhang Xiaomou was sentenced to be raised by Li. Zhang paid alimony and visited the children before the 10th of each month. Later, Li took the child to remarry abroad and changed the child's surname to the current husband's surname without permission. Zhang was very angry with his ex-wife for changing her surname for her children and wanted to fight against his ex-wife's change of surname by refusing to pay child support. Lawyer's opinion 1, according to the provisions of the law and judicial interpretation, Zhang has no right to refuse to pay alimony. Article 1085 of the the People's Republic of China Civil Code stipulates that if, after divorce, a child is directly raised by one party, the other party shall bear part or all of the alimony. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. The payment of maintenance is a legal maintenance obligation that should be fulfilled by the parent who does not directly raise the child. Article 59 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support because of their daughter's change of surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname. It can be seen that in this case, Zhang has no right to refuse to pay alimony based on his ex-wife changing his child's surname. However, because Li's act of changing the child's surname violated the provisions of Article 59 of the (I) of the Supreme People's Court on the application of the Marriage and Family Code of the the People's Republic of China Civil Code, Zhang can request Li to restore his child's surname in accordance with the law. 2, the traditional concept that the surname can not be changed, but in real life often have a variety of changes in the performance. A surname is a sign and symbol that indicates a person's family kinship and continuity. As for the son with the father's surname, it is accompanied by the emergence of private ownership, is the inevitable product of matriarchal society to patriarchal society. Through thousands of years of reproduction, this traditional concept has been deeply rooted in people's minds, forming a universal folk custom. In general, even if children cannot live with their parents due to their parents' divorce, their surnames do not need to be changed based on the recognition of blood relationship and respect for folk customs. In real life, the specific manifestations of a parent changing the surname of a minor child include the following situations: The first is that one parent changes the child's surname to his own surname after divorce; the second is that one parent changes the child's surname to the surname of the stepfather or stepmother; the third is that one parent changes the child's surname to the surname of the third person after divorce; the fourth is marriage During the existence of the relationship, one parent changes the child's surname to the other parent or another person. The first of these situations is most common in practice. Judging from the past situation, parents who unilaterally change their children's surnames are generally handled by the public security organs, and there are also appeals to the court for determination. In practice, the public security organs generally deal with whether they agree to change their children's surnames in accordance with their industry normative documents. 3. How to solve the problem of one parent changing his surname. Because minor children or adult children who cannot live independently lack the corresponding capacity for civil conduct, the change of their surname is mostly proposed by one parent, which often causes strong dissatisfaction from the other parent, and often refuses to pay child support as a means of protest. In order to solve this problem, Article 18 of the "Household Registration Regulations" of the Ministry of Public Security stipulates that the household registration authority may change the names of minor children based on the application of the father or mother and in accordance with legal procedures." The legislative consideration should be that, in general, the meaning of one of the spouses can represent the agreement of both parties. However, after the divorce, if one of the parties requests to change the name of the child without consultation or consultation without reaching an agreement, the public security organ may refuse to accept it; if one party obtains the change of the name of the child because of concealing the facts of the divorce from the public security organ, if the other party requests to restore the original name of the child and the divorce parties fail to reach an agreement, the public security organ shall restore it. To sum up, the change of children's surnames should, in principle, be subject to the unanimous consent of parents. However, in the case of a unilateral change in the surname of a child by one of the parents, the person who does not directly raise the child may not refuse to pay child support on this basis. Links to legal provisions 1. Article 101 of the the People's Republic of China Civil Code A natural person shall enjoy the right of name and shall have the right to decide, use, change or permit others to use his own name in accordance with the law, but shall not violate public order and good customs. 2. Article 1015 of the the People's Republic of China Civil Code A natural person shall take his father's surname or his mother's surname, but in any of the following circumstances, he may choose a surname other than his father's surname and his mother's surname: (I) select the surnames of other lineal elders; the surname chosen by the (II) for being supported by a person other than the legal dependant; (III) there are other legitimate reasons that do not violate public order and good customs. The surnames of natural persons of ethnic minorities may follow the cultural traditions and customs of their own ethnic groups. 3. Article 1084, paragraph 2, of the the People's Republic of China Civil Code also stipulates that after divorce, parents still have the rights and obligations to raise, educate and protect their children. 4. Article 1085 of the the People's Republic of China Civil Code stipulates that after divorce, if the children are directly raised by one party, the other party shall bear part or all of the maintenance. The amount of the expenses to be borne and the length of the period shall be agreed upon by both parties; if the agreement fails, the people's court shall make a judgment. 5. Article 59 of the Interpretation (I) of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that parents shall not refuse to pay child support due to their daughter changing her surname. If the father or mother changes the surname of the child to the surname of the stepmother or stepfather without authorization and causes a dispute, it shall be ordered to restore the original surname. 6. Article 18 of the Regulations on the People's Republic of China Household Registration: Article 18 A citizen who changes his name shall be handled in accordance with the following provisions: When a (I) or a person under the age of 18 needs to change his or her name, he or her parents or adopters shall apply to the household registration authority for registration of the change; When a person (II) 18 years of age or older needs to change his or her name, he or she shall apply to the household registration authority for registration of the change.
2022-12-01
01
2022-12
In practice, due to the diversification of the demands of all parties involved in private equity funds, the dual-GP model or even the multi-GP model is often used in the establishment of partnership private equity funds. This paper analyzes the relationship and division of authority and responsibility between the general partner, the executive partner and the fund manager in the dual GP model as follows: Definition of 1. General Partner (I) related regulations General Partner (GP) is a legal term under the Partnership Law, and according to Article 2 and other provisions of the Partnership Law, a general partner refers to a partner who bears unlimited joint and several liability for the debts of the partnership. (II) Concerns Laws and regulations or the self-discipline rules of the China Securities Investment Fund Association (hereinafter referred to as the China Foundation Association) have less provisions on the rights and obligations of GP, but GP often serves as the executive partner (hereinafter referred to as the executive partner) or the private equity fund manager (hereinafter referred to as the manager), and the relevant laws and regulations or the self-discipline rules of the China Foundation Association have more requirements for the executive partner or the manager. Definition of 2. executive partner (I) related regulations Executive partner (hereinafter referred to as executive partner) is also a legal term stipulated in the partnership enterprise law. According to the provisions of articles 2, 26 and 67 of the partnership enterprise law, the executive partner refers to the general partner who represents the partnership enterprise and executes the partnership affairs in accordance with the agreement of the partnership agreement or the entrustment of all the partners. (II) Concerns 1. The executive partner must be a general partner, but the general partner may not be an executive partner, so GP is divided into executive GP and non-executive GP; 2. The authority to execute the affairs of the executive partner is derived from the entrustment authorization of all partners, and a legal relationship of entrustment is established between the executive partner and other partners; 3. In the case of more than one GP, all partners can theoretically entrust one of them as the executive partner, or more than two or more GPs as the executive partner. Definition of 3. private equity fund manager (I) related regulations The Securities Investment Fund Law, the Interim Measures for the Supervision and Administration of Private Investment Funds and other existing laws and regulations have not clearly defined fund managers. However, according to the relevant self-discipline rules and practice of the China Foundation Association: private equity fund managers should be the fundraisers and managers of private equity fund products, and their main responsibility is to be responsible for the investment and operation of fund assets in accordance with the agreement of the fund contract. On the basis of risk control, strive for the maximum investment income for fund investors. The manager of a partnership private equity fund may be a GP or a related party of the GP as the manager. (II) Concerns In accordance with the above provisions and filing practices: 1. The general partner, the executive partner and the fund manager are inconsistent in some cases, and the "trinity" is the state of the three in certain circumstances. 2, according to the filing requirements of the China Foundation Association, with the unanimous consent of all partners, the fund management rights can be entrusted to GP or GP's related parties, so theoretically the fund manager may be the partner, non-partner GP, or GP's related parties. There is also a legal relationship of entrustment between the fund manager and the executive partner and other partners. 3, because the "Private Investment Fund Filing Notice" clearly stipulates that the manager of a private investment fund shall not be more than one, therefore, even if multiple GPs in the partnership have the qualification of a private fund manager, there can only be one manager. 4. Dual GP Mode The dual-GP mode is commonly used in the following ways: (I) single partner and manager non-partner GP 1, this model is the more common "double GP" model, by the private equity fund manager qualification GP1 as the executive partner, GP2 does not serve as the executive partner, may not have the private equity fund manager qualification. 2. In this model, GP1 has greater rights and the partnership is executed and managed by GP1. GP2, on the other hand, has neither the status of a partner nor the status of a manager, has a lower participation in the fund and can exert less influence on the operation of the fund. (II) double-partner single manager. 1, this model is also more common, GP1 as the manager and at the same time as the executive partner; GP2 as the executive partner but not the fund manager. 2. Under this model, both GP1 and GP2 have the authority to execute partnership affairs, but according to the requirements of the CFA, there can only be one fund manager, so matters involving fund management should be primarily exercised by GP1. The permissions of GP2 are subject to certain restrictions, as detailed in Part V of this article. (III) non-partner GP and manager single partner 1. In this model, one GP acts as the manager but not the partner, while the other GP acts as the partner. 2. As mentioned above, the executive partner and the administrator form a legal relationship with the other partners. Among them, the entrustment authority of the executive partner comes from the legal provisions such as the Partnership Law and the agreement of the partnership agreement, while the entrustment authority of the manager comes from the agreement of the partnership agreement and the agreement of the entrustment management agreement. Under this model, the administrator's authority is relatively weakened, and because he does not have the status of a partner, the administrator cannot directly enjoy the rights of the partner as stipulated in the partnership law and agreed in the partnership agreement. It can only carry out fund management work in accordance with the authorization of the partner and other partners in the partnership agreement and the entrustment management agreement. For some fund management work, it may require the cooperation of the executive partner to complete. To some extent, there is a certain restraint between the executive and the administrator. 3. In practice, the adoption of this method requires attention to how the manager performs the fund management work completely without acting as a partner, and ultimately protects the rights and interests of the fund and all partners. It is suggested that consideration may be given to agreeing in advance, for example, through an agreement, on the partner's obligation to cooperate and the administrator's exemption clause. In addition, in accordance with the regulatory requirements of the China Foundation Association, for the above-mentioned first (II) and (III) models, the parties should not use this to carry out channelization business, there is a channel behavior of the fund will not be filed. Therefore, it is important to avoid a broader agreement on the rights of non-administrators, especially if the partner is not registered as a fund manager, in order to avoid being identified as a channel-borrowing act. (IV) Single Executive Partner and Manager Financial/Investment Adviser As mentioned earlier, GPs who do not serve as managers and partners have a low degree of participation in the fund, and in order to appropriately address some of the demands of such GPs, this model has emerged in practice. Under this model, the GP does not act as an administrator or executive partner, but provides advisory services as a financial/investment adviser, thereby collecting the associated fees. In addition, GP2 may not even act as a general partner of the fund, but only as a financial/investment adviser entrusted by the fund, as an adviser to participate in the operation of the fund and obtain income, from the operational level is more flexible. Judging from the current regulatory regulations of the China Foundation Association, there is currently no prohibition on subjects that have not been registered as managers as financial advisors for equity private equity funds, but only qualification requirements for investment advisors for securities private equity funds. However, from the overall trend, the requirements for financial advisers of equity private equity funds may also be more stringent in the future. (V) GP and administrator separation 1. In the single GP mode or the dual GP mode, the manager can also be separated from the GP. 2, "Private Investment Fund Contract Guidelines No. 3 (Guidelines on the Essential Terms of Partnership Agreements)" stipulates that "the manager of a partnership fund may be an executive partner of the partnership, or it may be entrusted to other private equity fund management institutions". According to the above provisions, the fund manager may not be a partner or even a GP. However, the China Foundation Association requires that an association relationship must be formed between the GP and the fund manager, where the association relationship must be confirmed in accordance with accounting standards or formed through management appointments. 3. This model is similar to the problems faced by the (III) dual GP model. The manager does not have the status of a partner and only obtains the management authority through the agreement. The adoption of this model requires attention to two types of issues: (1) How does the manager perform the fund management work completely without serving as the executive partner, and ultimately protect the rights and interests of the fund and all partners. If the manager is related to the partner GP, the problem can be solved to a certain extent. However, if the manager is not related to the partner GP and only has a relationship with the non-partner GP, the partner's cooperation obligation shall be agreed through agreement and other means. (2) Since the manager is not a partner and does not sign a partnership agreement, the LP is not a counterparty to the contract, and the manager is isolated from the LP. In the event of a breach of contract or failure to exercise due diligence by the administrator, it is more difficult for LPs to defend their rights. For LP, it is suggested to reduce the above risks by LP participating in the signing of the entrustment management agreement and GP issuing unilateral commitment. 5. the division of rights and responsibilities in the dual GP model. (I) principle of division of powers and responsibilities 1. Key points of concern The dual GP mode has always been the focus of the China-based association when filing. The essence of the core issue is how to reasonably divide the responsibilities and authorities of the dual GP, whether there is a disguised occupation of the channel and disguised engagement in the dual manager structure. 2, the main business of different partnerships, its partnership affairs are also different. For a partnership fund, its partnership affairs are mainly the foreign investment and management of the fund and the day-to-day administrative affairs, and the foreign investment and management of the fund is the natural responsibility of the manager. Therefore, in theory, the execution of partnership affairs can include fund management affairs. 3, in the single GP model, the executive partner and the manager overlap, all external representative partnership, internal management and other rights and obligations should belong to the executive partner. However, in the double GP mode, especially when the executive partner does not act as the manager, due to the unanimous agreement of all partners to entrust some rights to the manager, the rights of the executive partner are bound to be limited. Even if they have the qualification of private equity fund manager, they can only participate in the operation of the fund and assist the manager in the management work in a compliant manner, but they cannot be agreed to be directly responsible for the fund management affairs. At the same time, for non-executive managers, or managers whose non-GP is only a GP affiliate, the exercise of some of their rights requires the cooperation of the executive partner. (II) specific division of powers and responsibilities 1. Powers and responsibilities of the fund manager According to the self-discipline rules of the China Foundation Association and the requirements of filing practice, and in combination with the above-mentioned principles of division of powers and responsibilities, regardless of whether the fund manager is an executive partner, a non-executive partner GP, or a non-partner associated with GP, matters related to fund raising, investment, post-investment management, and withdrawal shall be the responsibility of the fund manager, which may include: (1) Raising funds in accordance with the law and preserving information related to fund raising; (2) To co-organize the fund filing procedures in the China-based Fund; (3) Responsible for fund investment (including pre-investment due diligence, investment decision-making, post-investment management, investment exit, etc.); (4) Disclosure of information to investors; (5) After the liquidation of the fund, the liquidation procedures shall be handled by the Fund; (6) Other duties stipulated in laws and regulations, the self-discipline rules of the China Foundation Association and the fund contract. 2, non-manager of the duties of the partner. A partnership agreement may agree on the rights of a non-administrator to hold a partnership in addition to the duties of the administrator as expressly stipulated in the laws and regulations and the self-discipline rules of the China Foundation Association. It is not in line with the market-oriented law of fund operation to completely prohibit non-managers from participating in fund operation. However, non-managers should participate in fund operation under the requirements of supervision. They can assist managers to complete and appropriately participate in fund investment, management and withdrawal other than fund raising, and can be responsible for daily administrative affairs, including: (1) Take actions necessary to maintain the legal existence of the partnership, safeguard or obtain the legitimate rights and interests of the partnership and carry out business activities as a partnership, such as finding office space for the partnership, signing lease contracts, recruiting administrative and cleaning personnel, etc; (2) Appoint members of the voting board, but cannot actually control the fund's investment decision-making power through agreement arrangements, and cannot occupy a majority of seats; (3) Engage professional intermediaries and consultants to provide services to the partnership; (4) Assist in the search for, development of potential investment projects with investment value and provide them to the Fund and the Manager; (5) Providing advice to the partnership on matters such as investment structuring arrangements and assisting the manager in negotiating the terms of the investment and completing the investment; (6) Provide advice to the Fund and the Manager on the exit of investments and the disposal of assets. (7) Responsible for the approval and registration of the partnership in the administrative department and tax-related matters.
2022-12-01
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2022-11
J. T. Capital Watch. Can creditors who pay for their debts exclude court enforcement?
1. Introduction In the case of A v. Company B's loan contract dispute, according to A's application, the People's Court made a civil ruling in October 2017 and seized Company B's house. After the effective judgment supports A's claim, A applies to the people's court for compulsory execution. C is based on the non-fault buyer stipulated in Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts (hereinafter referred to as the "Provisions on Enforcement Objection and Reconsideration"). The main basis is: Company B owes C 2 million yuan and uses the house involved in the case to offset the debt, the two parties signed a house-to-house debt settlement agreement dated August 2017; the property company issued a detailed list of entry charges on the same day. So, can C, as a creditor of a house-to-house debt, exclude court enforcement based on the provisions of Article 28 of the "Enforcement Objection and Reconsideration Provisions")? Regarding the issue of whether creditors outside the case can exclude the enforcement of general monetary claims, the current legal norms are not clearly stipulated, and there are large differences in the practice of this issue, this paper attempts to sort out the judicial point of view, with a view to providing a reference perspective. 2. Supreme Court View After searching the judicial views and cases of the Supreme Court, the Supreme Court has different views on the issue of "whether the creditor of the debt with the house can exclude the enforcement of the court", and one group holds that the creditor of the debt with the house is sufficient to exclude the enforcement of the general (I. e. unsecured) monetary claim (hereinafter referred to as "definitely excluding the enforcement"); the second category holds that creditors who set off their debts cannot exclude the enforcement of general (I. e. unsecured) monetary claims (hereinafter referred to as "negative exclusion of enforcement"). (I) positive exclusion of execution 1. Representative judicial perspective In the minutes of the 12th meeting of judges of the Supreme Court in 2019, the Second Circuit Court of the Supreme Court pointed out that if the debt-for-property agreement is actually performed, the ownership of the debt has changed, and the recipient's claim to exclude the enforcement of the debt should be supported. 2. Typical cases of the Supreme Court (1)(2020) Supreme Law Min Shen No. 4743, the opinion of the judge: when the Provisions on Objection and Reconsideration of Execution were formulated, "debt in rem" was originally intended to be included in the scope of protection of the right of expectation of real right. In view of the fact that the outsider and the person subject to execution may collude with each other in bad faith to reverse the signing time to exclude the execution power of other creditors, in the absence of the technical means to identify the exact time of the signing of the contract, it is not sufficient to exclude the possible moral hazard, so the "debt in rem" is not included in the scope of the right of expectation. However, the Court believes that if there is evidence to prove that the "debt in kind" agreement was signed at a specific time and conforms to the provisions of Article 28, its right to exclude enforcement should still be protected. "Debt to debt" is actually a kind of value exchange, that is, the value of the creditor's rights in exchange for "things" of goods, "debt to debt" in line with the external characteristics of the general real estate sale, on the basis of the right to expect, enjoy the civil rights and interests of excluding enforcement. (2)(2019) Supreme Law Civil Final No. 1894, the referee's view: the creditor of the house to pay the debt does have evidence to prove that the parties have formed a separate real estate sale relationship, and the payment of the purchase price is to the seller's debt to offset the top, can exclude the debtor's other creditors of the enforcement. (3)(2017) Supreme Law Minshen No. 785, the referee's point of view: before the property involved was preserved and sealed up, the person subject to execution signed an agreement with an outsider to repay debts in kind. The outsider actually invested in the construction and occupied the house involved in the case, and has fulfilled the obligations stipulated in the legal and valid contract. Although he has not gone through the transfer procedures, the reason why he has not handled the transfer is that the project has not been completed as a whole and cannot be handled objectively. With reference to the provisions of Article 28 of the Provisions on Objection and Reconsideration of Execution, it shall be determined that a company's request for exclusion of execution of the property involved in the case is justified. Summary: To sum up, the affirmative point of view is that it is generally believed that the creditor who pays the debt with the house does have the true intention to purchase the debt-paying house, there is no situation of evading execution or evading the debt, and has actually occupied the house before the people's court takes enforcement measures., There is no fault for not transferring the ownership of the house, that is, the creditor who pays the debt with the house conforms to Article 28 of the "Implementation Objection and Reconsideration Regulations. (II) negative exclusion execution 1. Representative judicial perspective (1) The second paragraph on page 304 of the "Understanding and Application of the Minutes of the National Court's Civil and Commercial Trial Work Conference" (edited by the Second Civil Trial Division of the Supreme People's Court, published by the People's Court Publishing House, 2019 Edition) holds that non-case creditors cannot fight against the execution of money debts based on debt-in-kind agreements, mainly based on two considerations: one is to prevent outsiders from colluding maliciously with the executed to reverse the time to damage the rights of the debt-case, under the circumstances that it is difficult to accurately determine the time when the contract was signed and it is difficult to determine the malicious collusion of the parties, only a more cautious attitude can be taken towards debt repayment with property. The second is to violate the equality of debts, that is, the purpose of setting up debt repayment with property is to eliminate the old money debt, and the debt repayment with property is still the debt of money in essence, which should not take precedence over another money debt. (2) The minutes of the 15th judges' meeting of the Second Circuit Court of the Supreme People's Court in 2021 held that Article 28 of the Provisions on Objection and Reconsideration of Execution stipulates four conditions under which buyers of non-fault real estate can exclude the enforcement of monetary creditors. As long as one element is not met, the enforcement of monetary claims cannot be excluded. A debt-for-property agreement is different from a contract of sale and purchase in that it is either a new debt settlement or a debt renewal. In the case of new debt settlement, there are both old and new debt, which is quite different from the contract of sale of a single debt nature, and in the case of debt renewal, the creditor only has the right without the obligation to pay, and is not the same as the contract of sale that requires the payment of consideration. Thus, relying solely on a debt-for-rem agreement is not sufficient to preclude the enforcement of another monetary claim. 2. Typical cases of the Supreme Court (1)(2022) Supreme Law Minshen No. 104, Referee's View: The right to expect housing obtained through "debt in kind" generally cannot prevent execution. The key substantive problem of the execution objection is to compare the effectiveness of the different types of rights existing in the subject matter of the execution. Although the right of expectation of the ordinary buyer is given the name of "real right", it is not a vested right after all, and is still essentially a claim for creditor's rights. For the housing sales contract signed by "debt in kind", we should not only consider whether the debt has the priority attribute, but also consider the true meaning of the civil legal act. Generally speaking, the real intention of both parties lies in the transfer of the subject matter of the house as the way of paying off the old debt, which is different from the real sense of the house sale. Before the transfer of the house, the new debt arising from the contract of sale has not been eliminated, resulting in the coexistence of new debts and old debts, so the buyer's right to oppose the executor outside the contract of sale should not exceed the validity of the old debt. (2)(2021) Supreme Law Civil Final No. 1245, the judgment view: the buyer obtains the right of expectation of the property right by way of debt relief, but its inferior position is inferior to the security right, can not exclude the mortgagee's enforcement of the house. (3)(2020) Supreme Law Minshen No. 6858, the judgment point of view: if the debt relief creditor can exclude the other money creditors of the seller from the enforcement of the debt relief, it is tantamount to the "buyer" obtaining the legal status of taking precedence over other ordinary money creditors through the new debt settlement or the property settlement agreement of the nature of the property settlement appointment, the ordinary claims, which should have been in an equal position of payment, will thus have a difference between priority and inferiority, violating the principle of equality of debt and harming the legitimate rights and interests of other ordinary monetary creditors. (4)(2017) Supreme Law Civil Final No. 354, judgment view: the debt-for-property agreement between the parties in this case, can not reflect the true intention of the two sides to buy and sell houses, but the debtor's alternative way of performing the debt, does not necessarily cause the change of housing ownership. And the house in dispute has not completed the change of ownership registration procedures, creditors only have the right to claim, not the property right. In this case, the delivery of the property agreed upon in the property settlement agreement is the performance of the debt for the purpose of eliminating the pecuniary debt, and before the registration of the change of the house is completed, the property settlement agreement does not form an interest superior to other claims, and undermines the principle of equal payment of the claims. Summary: To sum up, it is generally believed that the debt repayment with house is based on the behavior of borrowing to offset the account, and its purpose is to eliminate the creditor's rights, rather than the simple behavior of buying and selling houses, which cannot reflect the true intention of transforming the relationship between creditor's rights and debts into the relationship between buying and selling houses. Therefore, before the registration of ownership of houses is completed, the obligee only enjoys the right to claim as a creditor, based on the principle of equality of debt, the general claims they enjoy do not have a priority value benefit over the enforcement claims. 3. local judicial documents The author's search found that, although the current norms at the national level do not clearly on the housing debt can exclude enforcement, but some local higher people's courts combined with local trial practice, issued the corresponding judgment guidelines, see the table below: Summary: From the above-mentioned judicial documents of the local higher people's court, it can be seen that whether the obligee of the house-to-house debt can be excluded from the court's enforcement, generally from the authenticity of the house-to-house debt agreement, the absence of circumstances such as evasion of execution or evasion of debt, the signing time of the house-to-house debt agreement, the fact that the assignee of the debt occupies the property, the value of the property, the debt amount and the property, the value of the property, the equivalent, and the fault of, it is believed that court enforcement can be excluded if the conditions are met. 4. summary and suggestions (I) Summary After searching the cases, the author believes that in recent years, in the practice of adjudication, it is often believed that the parties' opinions on the disposal of the house should be respected. Under the circumstances that there is no evasion of execution or evasion of debts or malicious collusion to damage the legitimate rights and interests of third parties, at the same time, it meets the provisions of Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court (I. e., the court has signed a house-to-debt agreement, has legally occupied the house, the debt-to-debt exists objectively and meets the requirements of debt-to-debt, and the failure to register the transfer is not caused by the outsider's own reasons), and can exclude the court from the enforcement. (II) recommendations 1. From the buyer's point of view, it is suggested that when obtaining a house by means of debt repayment, the true intention of purchasing the house should be clearly expressed, and the signed housing agreement should state the housing ownership registration certificate, the location, area, price and other matters, and it is suggested that the housing transfer registration procedures should be handled in a timely manner. 2. From the creditor's point of view, it is suggested that if the buyer excludes the creditor's enforcement by claiming in rem, the creditor should clarify the nature of its own claim, that is, whether it belongs to the general claim or the security right. If it is a creditor of a general claim, it is recommended to examine in strict accordance with the law whether the buyer has a civil interest and whether it can meet the conditions for excluding enforcement. If it belongs to the creditor of the security right, it is suggested that the right to live in accordance with the right of the purchase consumer takes precedence over the security right to the right of expectation, and then formulate a litigation strategy to fully safeguard their legitimate rights and interests.
2022-11-30
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2022-11
Viewpoints... Legal analysis of issues related to the shareholder roster system.
Foreword The Company Law clearly stipulates the shareholder register system of limited liability companies, and the shareholder register is an important basis for the company's statutory preparation documents and shareholder certificates. However, in practice, the importance of the register of shareholders is often ignored, many enterprises only know the industrial and commercial (registration authority) registration, but not the register of shareholders, once the two registration is inconsistent or can not be both, or the registration and relevant legal documents (such as equity transfer contract, capital increase contract, internal resolution, etc.) agreement is inconsistent, it often leads to a series of equity disputes or legal risks, such as disputes over the qualification of shareholders, disputes over the record of shareholders, and disputes over the registration of shareholders. This paper explores the legal analysis, common problems and cases of the shareholder register system. 1. relevant legal provisions Relevant provisions of the the People's Republic of China Companies Act of (I) (the "Company Act") [Chapter II Establishment and Organizational Structure of a Limited Liability Company] [Article 26 Paragraph 1]: The registered capital of a limited liability company shall be the amount of capital contribution subscribed by all shareholders registered with the company registration authority. [Chapter II Establishment and Organization of a Limited Liability Company] [Article 32]: A limited liability company shall keep a register of shareholders, which shall record the following matters: (1) the names and domiciles of the shareholders; the amount of capital contribution of the (II) shareholders; (III) the number of the certificate of capital contribution. Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders. The company shall register the names of the shareholders with the company registration authority; if the registration items are changed, the change registration shall be carried out. If the registration is not registered or the registration is changed, it shall not be used against a third party. [Chapter V Special Provisions on the Organization of Listed Companies] [Article 130]: Where a company issues registered shares, it shall keep a register of shareholders, which shall record the following items: (1) the name and domicile of the shareholders; the number of shares held by each shareholder of the (II); the number of shares held by each shareholder of the (III); the date on which each shareholder of the (IV) acquired the shares. Where bearer shares are issued, the company shall record the number, serial number and date of issue of the shares. [Chapter IX Company Merger, Division, Capital Increase, and Capital Reduction] [Article 179, Paragraph 2]: When a company increases or decreases its registered capital, it shall register the change with the company registration authority in accordance with the law. [Chapter 12 Legal Liability] [Article 211 Paragraph 2]: When a company's registered items are changed, if the relevant change registration is not handled in accordance with the provisions of this Law, the company registration authority shall order it to register within a time limit; If it fails to register within the time limit, a fine of not less than 10,000 yuan but not more than 100,000 yuan shall be imposed. (II) the Supreme People's Court on the application of<中华人民共和国公司>(III) of Provisions on Certain Issues (hereinafter referred to as "the (III) for Judicial Interpretation of the Company Law") Article 23: After the parties have fulfilled their capital contribution obligations or acquired equity in accordance with the law, the company has not issued a capital contribution certificate in accordance with the provisions of Articles 31 and 32 of the Company Law, recorded in the register of shareholders and registered with the company registration authority. If the parties request the company to perform the above obligations, the people's court shall support it. (III) Regulations on the Administration of the People's Republic of China Company Registration (as amended in 2016) (hereinafter referred to as the "Regulations on the Administration of Company Registration" Article 2: The establishment, alteration and termination of a limited liability company and a joint stock limited company (hereinafter referred to as the company) shall be registered in accordance with these Regulations. Article 31 Where a company increases its registered capital, it shall apply for registration of change within 30 days from the date of making the resolution or decision on change. Where a company reduces its registered capital, it shall apply for registration of change after 45 days from the date of the announcement, and shall submit the relevant certificate of the company's announcement of the reduction of registered capital published in the newspaper and the explanation of the company's debt settlement or debt guarantee. Paragraph 1 of Article 34: Where a limited liability company changes shareholders, it shall apply for registration of change within 30 days from the date of change, and shall submit the main qualification certificate of the new shareholders or the identity certificate of natural persons. (IV) Company Law (Revised Draft) (draft for comments, not yet in force) Article 50 A limited liability company shall keep a register of shareholders, which shall record the following matters: (1) the name or names and domicile of the shareholders; the amount and time of capital contribution of the (II) shareholders; the number of the certificate of capital contribution of the (III); and the time when the (IV) acquired and lost the qualifications of shareholders. Shareholders recorded in the register of shareholders may claim to exercise their rights in accordance with the register of shareholders. Article 87 Where a shareholder transfers his equity, he shall notify the company in writing, request to change the register of shareholders and register the change with the company registration authority, and the company shall not refuse without justifiable reasons. If the company refuses or fails to reply within a reasonable period of time, the transferor or transferee may bring a lawsuit to the people's court in accordance with the law. Article 88 After the transfer of equity in accordance with this Law, the company shall promptly cancel the certificate of capital contribution of the original shareholders, issue a certificate of capital contribution to the new shareholders, and amend the records of the relevant shareholders and their capital contributions in the articles of association and the register of shareholders accordingly. The amendment to the articles of association does not need to be voted on by the shareholders' meeting. Article 104 A company limited by shares shall prepare a register of shareholders and keep it in the company, except for the registration of shares in a securities registration and settlement institution established in accordance with the law. The register of shareholders shall record the following matters: (1) the name or name and domicile of the shareholders; the type and number of shares subscribed for by each shareholder of the (II); the number of the shares issued by the (III) in paper form; (IV) the date on which each shareholder acquired the shares. Article 111 A company limited by shares shall keep its articles of association, register of shareholders, corporate bond stubs, minutes of shareholders' meetings, minutes of meetings of the board of directors, minutes of meetings of the board of supervisors and financial and accounting reports on file with the Company. Article 170 The transfer of shares shall be carried out by the shareholders by endorsement or by other means prescribed by laws or administrative regulations; after the transfer, the company shall record the name or names and domicile of the transferee in the register of shareholders. The register of shareholders shall not be changed within 20 days prior to the convening of the shareholders' meeting or within 5 days prior to the base date on which the company decides to distribute dividends. Where the law provides otherwise for the registration of changes in the register of shareholders of listed companies, such provisions shall prevail. Summary of relevant (V) laws 1. The record of the register of shareholders and the registration of the registration authority are the two main forms of registration of the rights of shareholders of a company. The former belongs to the internal registration of the company, which is the basic basis for determining the identity of the shareholders of the company, while the latter can protect the rights of shareholders through the confrontation of external publicity. In judicial practice, according to the different functions of registration, commercial registration is divided into right registration and declaration registration. Right registration has the effect of creating right subjects or legal relations. If it is not registered, it cannot produce corresponding rights or legal relations. Declaration registration means that registration does not serve as the basis for changing the gain or loss of rights, but only has the effect of declaring rights. The consequence of non-registration is that it cannot fight against bona fide third party. Under the premise that the basic legal documents (equity transfer contract, capital increase contract, internal resolution, etc.) are available in accordance with the law, the record of the register of shareholders is closer to the registration of rights, while the registration of the registration authority is clearly a declaration registration. Therefore, the author believes that when investors obtain the status of shareholders of the company through new establishment, capital increase, transfer, etc., they should pay attention to the relevant agreements and internal resolutions to clarify the company's obligation to amend the register of shareholders and issue a certificate of capital contribution, and confirm that the company has fulfilled the above obligations in a timely manner after the basic legal documents take effect. 2. The "Company Law" has relevant provisions on equity changes caused by equity transfer (the company's registered capital remains unchanged), [Article 32] of the "Company Law" [Chapter II Establishment and Organizational Structure of Limited Liability Companies] and [Chapter V Special Provisions on the Organizational Structure of Listed Companies] [Article 130], but there are no clear provisions for unlisted company limited by shares. It is worth noting that the "Company Law (Revised Draft)" has paid attention to this point and has made useful supplements in Article 104. 3. According to [Article 2] of [Chapter 1 General Provisions] of the "Company Law", "The company referred to in this Law refers to a limited liability company and a joint stock limited company established within the territory of China in accordance with this Law", it can be seen that [Chapter 9 Company Merger, Division, Capital Increase, Capital Reduction] [Article 179 Paragraph 2] "A company increases or decreases its registered capital, the scope of the restriction includes limited liability companies and joint stock limited companies. It can be seen that according to the current law, for non-listed joint stock limited companies, although the change of equity caused by share transfer is not explicitly required to go through industrial and commercial registration (the author thinks that the regulation is based on the comprehensive consideration of the large number of shareholders of joint stock limited companies and the default need not to obtain the consent of other shareholders), however, when the registered capital changes (capital increase, capital reduction), it is still required to register with the registration authority. 2. common legal issues related to the register of shareholders Whether the statute of limitations applies to the right to request records in the register of (I) shareholders. According to Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases (2020 Amendment), the parties may raise a limitation of action defense against claims. It can be seen that the object of the statute of limitations is the right of claim, and the question of whether the right of claim recorded in the register of shareholders applies to the statute of limitations depends on whether the right of claim recorded in the register of shareholders belongs to the right of claim. The mainstream view of the judiciary is that the premise of the right of claim recorded in the register of shareholders is the confirmation of the qualification of shareholders, which belongs to the confirmation of the claim, belongs to the right of procedural claim, not the right of claim (entity claim), and does not apply the statute of limitations. Relevant jurisprudence: 1.(2022) Yue 01 Min Zhong No. 12426: Civil Judgment of Second Instance on Dispute over Shareholder Qualification Confirmation by Huang Xiuhua and Guangzhou Wofu Mould Co., Ltd. The court held that: equity includes property rights, creditor's rights, personal rights and other content, and property rights and personal rights have the world and exclusive, do not apply the statute of limitations. This case is a dispute over the confirmation of shareholder qualification, and Huang Xiuhua only requests confirmation that he has the shareholder qualification of Wofford, which does not involve the content of the claim and is not subject to the limitation of the statute of limitations. 2.(2022) Liao 01 Min Zhong No. 11271: Second Instance Judgment on Dispute over Shareholder Qualification Confirmation between Danan Non-staple Food Joint Store and Li Xueni, Shenhe District, Shenyang City The court held that, according to the provisions of Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases, "The parties raise the defense of the limitation of action against the right of claim", the object of the limitation of action is the right of claim, which is mainly applicable to the claim for payment. This case is the confirmation of the action, and the confirmation of the action belongs to the procedural claim right is not the entity claim right, more non-claims claim, since there is no room for the application of the statute of limitations. The qualification of shareholders when the record of the register of shareholders of the (II) is inconsistent with the registration of the registration authority. As mentioned earlier, both the record of the register of shareholders and the registration of the registration authority are the two main forms of registration of the rights of shareholders of a company. The former belongs to the internal registration of the company, which is the basic basis for determining the identity of the shareholders of the company, and the legal nature is closer to the registration of rights, while the latter can protect the rights of shareholders through the confrontation of external publicity, and the legal nature belongs to the declaration registration. The inconsistency between the record in the register of shareholders and the registration authority is mostly found in the failure to register the industrial and commercial change or update the register of shareholders in time after the company's equity change (equity transfer, capital increase, etc.). At this time, the real reason for the inconsistency between the record in the register of shareholders and the registration authority shall be judged according to the basic legal facts, and whether the "new shareholder" has been approved by the company or actually exercised the shareholder rights shall be judged. However, it should be noted that the register of shareholders is not an authorized registration in the full sense, that is, the qualification of shareholders cannot be determined solely by the register of shareholders, and investors who are not recorded in the register of shareholders may also claim their qualification and rights of shareholders by proving that they have been recognized by the company or have actually exercised their rights as shareholders. Relevant jurisprudence: 1.(2021) Yun 0102 Min Chu No. 15859: Zeng Delong and Gao Yunquan's Civil Judgment of First Instance on Disputes over Donation Contracts The court held that the plaintiff and the defendant, as persons with full civil capacity, signed the three resolutions of the shareholders' meeting to confirm that the resolutions of the shareholders' meeting were the true intentions of the original and the defendant, which did not violate the mandatory provisions of laws and administrative regulations and were legal and effective. Therefore, the court confirmed the free transfer of the contractual relationship between the plaintiff and the defendant... And it can be seen from the amendments to the articles of association of Kunzhou Company and the two minutes of shareholders submitted by the defendant, all shareholders of Kunzhou Company recognize that the shares held by the plaintiff in Kunzhou Company have been transferred to the defendant free of charge, and the three resolutions of the shareholders' meeting are binding on the rights and obligations of the shareholders. The register of shareholders recorded in the articles of association of the company is the basis for shareholders to obtain their identity as shareholders and exercise their rights as shareholders, while the plaintiff is no longer a shareholder in the register of shareholders of Kunzhou Company. According to Article 32 of the the People's Republic of China Company Law, failure to register the change of shares does not lead to the legal consequences of invalidity of the change of shares, and failure to register the change of shares can only have the effect of not opposing a third party. According to the provisions of Article 176 and Article 509 of the the People's Republic of China Civil Code, both the plaintiff and the defendant shall perform their obligations in accordance with the agreement, and the plaintiff's failure to cooperate with the registration procedures for equity change as agreed constitutes a breach of contract. 2.(2018) Yun 23 Min Zhong No. 615: xiao Yingguang and Yuanmou County Department Store Trade Wholesale Co., Ltd., Gong Cuihua, Luo Shaohua, Wen Zhimei, Zhou Junhong, Chen Yongxiang, Liao Shuangquan, Yang Haiguang, Chen Yuli, Zhang Guangyan, Wang Ruyuan, Liu Hongmei, Chen Xiuhong, Jiang Rongju, Duan Yan, Pan Yinghong, Yang Zie Hongliang, Yang Lijia, Yang Jinyan, and Examine Civil Dispute on Shareholder Qualification Confirmation The court held that Xiao Yingguang submitted his resignation to Yuanmou County Department Store Trade Wholesale Co., Ltd., voluntarily transferred his shares and received the share payment paid by the company. Although Yuanmou County Department Store Trade Wholesale Co., Ltd. did not change its industrial and commercial registration for some reason, the company amended its articles of association through a resolution of the shareholders' meeting and issued a certificate of capital contribution to the shareholders of the company, xiao Yingguang is no longer a shareholder of the company. In the event that the list of shareholders in the industrial and commercial registration is inconsistent with the register of shareholders retained by the company, the internal confirmation of the identity and share of the shareholders shall be based on the register of shareholders retained by the company. Therefore, Xiao Yingguang has actually lost the shareholder qualification of yuanmou county Department Store Trade Wholesale Co., Ltd. and his request to confirm himself as a shareholder of yuanmou county Department Store Trade Wholesale Co., Ltd., to enjoy 4% equity (50000 yuan) of the company, to issue equity certificates or capital contribution certificates, and to reissue dividends of 300000 yuan from 2007 to 2016 is inconsistent with the facts and legal provisions, and the court will not support it. 3.(2016) Supreme Farmin Shen No. 238: Yin Jiqing, Rizhao Juntai Real Estate (Group) Co., Ltd., Wang Xiaoyi and other shareholders' registers record dispute complaints and apply for civil rulings The court held that: to determine the establishment of the status of shareholders of a limited liability company, should be in accordance with the provisions of the Company Law and the relevant judicial interpretation, from the capital contribution, public.</中华人民共和国公司>
2022-11-30
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2022-11
Viewpoint | Don't Know the "Capital Provident Fund"
Introduction Capital provident fund refers to the portion of shareholders' capital contribution in excess of registered capital (capital premium or equity premium), as well as gains and losses directly included in the owner's equity. The capital provident fund is not converted from the company's profits, it is essentially input capital. ① As China adopts the statutory registered capital system, the capital provident fund cannot be directly reflected as registered capital or as a separate industrial and commercial registration item, and there are few laws and regulations. The relevant provisions on the use of capital provident fund are mainly reflected in the accounting system standards, but in practice, the use of capital provident fund is special. This paper intends to sort out and analyze the relevant provisions of the capital provident fund, aiming to provide reference for relevant practical issues. Sources of formation of 1. capital provident fund Because the capital reserve fund is an integral part of the owner's equity, and it usually directly leads to the increase of the net assets of the enterprise, therefore, the capital reserve information is very important for the decision-making of investors, creditors and other accounting information users. In order to avoid inflating net assets and misleading decisions, it is necessary to identify the main sources of capital surplus formation. According to the Enterprise Accounting System, the sources of capital provident fund formation mainly include two types according to their purposes: One category is the capital provident fund that cannot be directly used to increase capital, which includes the preparation of donations to accept non-cash assets, the re-evaluation and appreciation of statutory property, and the preparation of equity investment. Among them, the preparation for accepting non-cash assets donation refers to the capital accumulation fund increased by the enterprise due to accepting the donation of non-cash assets; the legal property re-evaluation and appreciation refers to the difference between the confirmed value of the asset evaluation or the value agreed by both parties and the original net book value when the enterprise transfers out various assets due to foreign investment or when the enterprise needs to revalue the property due to merger and reorganization; the preparation for equity investment, when an enterprise adopts the equity method of accounting for its long-term equity investment in an investee, it increases its capital provident fund due to the acceptance of donations by the investee, resulting in an increase in the capital provident fund calculated by the investing enterprise in proportion to its shareholding or investment. One category is capital reserves that can be used directly to increase capital, which includes capital (or equity) premiums, cash donations received, transfer of appropriations, foreign currency capital translation differences and other capital reserves. Among them, the capital (or equity) premium refers to the part of the capital invested by corporate investors that exceeds their share of the registered capital, which is called equity premium in joint stock limited companies; accepting cash donations refers to the company's acceptance of cash donations The increased capital reserve; appropriation transfer refers to the completion of the appropriation projects allocated by the state for technological transformation and technological research, the part transferred to the capital provident fund according to regulations shall be recorded according to the transferred amount; the foreign currency capital conversion difference refers to the capital conversion difference caused by the different exchange rates adopted by the enterprise for foreign currency investment; other capital provident fund refers to the capital provident fund formed in addition to the above-mentioned capital provident fund and the amount transferred from various reserve items of the capital provident fund, including the debts exempted by creditors. Use of 2. Capital Provident Fund According to the provisions of Article 168 of the Company Law that "the company's provident fund shall be used to make up for the company's losses, expand the company's production and operation or to increase the company's capital. However, the capital provident fund shall not be used to make up for the company's losses", the capital provident fund has the following purposes: (I) to expand the company's production and operation The capital provident fund increases the asset base required for the company's operations, so the company can use the capital provident fund to expand the company's production and operation scale according to its own business needs without increasing capital, in order to enhance the company's operating strength. (II) to increase company capital Under normal circumstances, part of the company's capital reserve can be converted to increase the company's registered capital, but the conversion of the company's share capital needs to pay attention to the following important matters: 1. According to the provisions of the Enterprise Accounting System, the preparation items under the capital provident fund cannot, in principle, be transferred to capital (or equity). The preparation items include three items: preparation for accepting non-cash asset donations, revaluation and appreciation of statutory property, and preparation for equity investments. However, for companies that implement the Enterprise Accounting Standards, the capitalization of capital surplus includes the capital (equity) premium and the capital surplus of the realized portion of the capital surplus in addition to the capital surplus. 2. The transfer of the registered capital (or share capital) of the company from the capital accumulation fund shall be decided by the shareholders' meeting (general meeting of shareholders) or other similar authority. 3. If the capital accumulation fund is converted into share capital, income tax shall be paid in accordance with the provisions of the law and the relevant provisions of the Ministry of Finance and the State Administration of Taxation. Matters of concern in 3. practice (I) procedures for increasing registered capital Although article 168 of the Companies Act provides that the capital provident fund may be used to increase the capital of the company, the conditions that must be met for the conversion of capital from the provident fund and whether the capital must be increased to all shareholders in accordance with the original shareholding ratio are not stipulated by law. ② Article 43 of the "Company Law" stipulates that the method of discussion and voting procedures of the shareholders meeting shall be prescribed by the articles of association of the company, except as provided for in this law. Resolutions made at the shareholders' meeting to amend the articles of association of the company, increase or decrease the registered capital, as well as resolutions on the merger, division, dissolution or change of corporate form of the company must be passed by shareholders representing 2/3 or more voting rights. According to the above provisions, the shareholders of the company may, when convening a shareholders' meeting, determine whether the conditions for capital increase from provident fund have been met and whether to increase capital to all shareholders in accordance with the original shareholding ratio. If the articles of association do not provide for this, it shall be discussed and determined by the shareholders' meeting and implemented after being adopted by shareholders representing more than 2/3 voting rights. It is important to note that when only some shareholders are targeted to increase capital from the capital reserve, the resolution must be unanimously approved by all shareholders. The current company law does not prohibit the company from making targeted increases to some shareholders. However, since all shareholders enjoy the final rights and interests of the capital accumulation fund according to the proportion of equity, after the targeted increase, all the capital accumulation fund will be converted to the capital contribution of some shareholders, which may lead to the reduction of the interests of other shareholders. Therefore, the shareholders' meeting resolution of the company's targeted increase of registered capital can only be made with the unanimous consent of all shareholders. The (II) shall pay income tax on the acquisition of equity (shares) due to the transfer of capital reserves to increase capital (share capital). When capital surplus is transferred to capital (share capital), a corresponding change in legal form occurs, and the equity that originally belonged to the company is transformed into the share capital of the shareholders, and from the point of view of the change in legal form and control, it can be considered that the company has paid to the shareholders. Specifically, prior to the conversion, the capital provident fund represents the assets and interests of the company, while after the conversion, it is formally expressed as each shareholder's respective rights to the company, thus giving rise to the basis for taxation. However, it should be noted that, unlike other capital reserves, the capital reserves generated by the capital (equity) premium are not the income generated in the process of production and operation of the enterprise, in which the capital (equity) premium comes from the input of shareholders and should not be regarded as the income of the nature of "dividends and bonuses" obtained by shareholders, there is no need to pay corporate income tax (the standard rate is 25%) or personal income tax (the rate is 20%). At present, the income tax treatment of shareholders when an enterprise transfers capital from capital reserve is as follows: 1. Corporate shareholders The second paragraph of Article 4 of the notice of the State Administration of Taxation on the implementation of the enterprise income tax law (Guo Shui Han [2010] No. 79) stipulates that if the invested enterprise converts the capital reserve formed by the equity (ticket) premium into equity, it shall not be regarded as the dividend and dividend income of the investor enterprise, and the investor enterprise shall not increase the tax basis of the long-term investment. Therefore, for the shareholders of the enterprise, the capital accumulation formed by the equity premium or the stock premium of the invested enterprise will not lead to the tax liability of the shareholders. And at this time, do not distinguish between the nature of the invested enterprise, the invested enterprise with equity or stock premium formed by the capital accumulation to increase capital, are not subject to corporate income tax on its shareholders. 2. Individual shareholders Article 1 of the notice of the State Administration of Taxation on the exemption of individual income tax on the conversion of capital stock and the distribution of bonus shares by joint-stock enterprises (Guo Shui Fa [1997] No. 198) stipulates that the conversion of capital stock by joint-stock enterprises with capital accumulation fund does not belong to the distribution of dividends and dividends, and the amount of capital increase obtained by individuals is not regarded as personal income and individual income tax is not levied. The "Approval of the Original Urban Credit Cooperatives in the Process of Transforming into Urban Cooperative Banks to Pay Individual Income Tax on Income from Individual Share Appreciation" (Guo Shui Han [1998] No. 289) states that the "capital provident fund" described in Document No. 198 refers to the capital provident fund formed by the income from the premium issuance of shares of joint-stock enterprises. The second paragraph of Article 2 of the Circular of the State Administration of Taxation on Further Strengthening the Collection and Administration of individual income tax for High-income earners (Guo Shui Fa [2010] No. 54) stipulates that if capital reserves other than stock premium are transferred to increase registered capital and share capital, individual income tax shall be levied in accordance with the items of "income from interest, dividends and dividends" and in accordance with the current policies. That is to say, only the capital reserve formed by the stock premium issuance of joint-stock enterprises is not regarded as the personal income of shareholders when it is converted into share capital, and no personal income tax is levied; for the capital reserve formed by joint-stock enterprises that are not part of the stock issuance premium, and non-joint-stock enterprises that convert capital reserve into share capital (capital), there is no clear stipulation that individual shareholders' personal income tax is not levied. In practice, some local tax authorities will levy a 20% personal income tax on "interest, dividends and dividend income" on individual shareholders when limited liability companies and non-listed joint-stock enterprises increase their capital (share capital) at a capital (share capital) premium. Of course, there is still much controversy over the appropriateness of this provision, with opponents arguing that the nature of the enterprise should not affect the determination of the nature of capital, and that Document No. 79, which applies to the enterprise, likewise does not distinguish whether the shareholders of the enterprise are subject to corporate income tax by the nature of the enterprise. The (III) shall not arbitrarily withdraw the capital provident fund without legal procedures. Although the legal provisions are not clear, the relevant judicial cases are negative about the arbitrary direct or disguised withdrawal of capital reserves by shareholders. For example, in (2017) Shan 01 Minchu No. 1079 case, the court held that the withdrawal of capital contribution is not limited to the withdrawal of capital contribution that has been paid in the registered capital. In the case of capital increase of the company, the withdrawal of capital contribution (I .e. capital reserve) by shareholders that has not been registered by the industrial and commercial department but has become the legal person property of the company also belongs to the category of withdrawal of capital contribution and is prohibited by the company law. ③After the case was retried by the Shaanxi Provincial High Court and the Supreme People's Court, both supported the judgment of the court of first instance. In addition, the same view is held in (2013) Minti Zi No. 226 and (2013) Minshen Zi No. 326 cases. Moreover, the agreements between shareholders and between shareholders and the company on the retrieval of capital reserves are invalid. In the case of (2019) Su Minzong No. 1446, the court held that the content of the undertaking involved in the case was that Banghao Company returned the part of investment funds larger than the registered capital to Zhongnan Company, which violated the capital maintenance principle of the Company Law and damaged the legitimate rights and interests of Banghao Company and its creditors, and should be invalid, therefore, Zhongnan Company shall not be supported in requesting Banghao Company and other shareholders to return funds to it in accordance with the undertaking. ④ Not only that, the shareholders who withdraw their capital contributions usually make false financial accounting statements to increase profits for distribution, transfer the capital contribution through fictitious creditor's rights and debts, and transfer the capital contribution out by using related transactions. ⑤ Such acts are prohibited by the relevant jurisprudence. For example, in the Supreme Court (2013) Minti No. 226 case, the court found that the actual capital contribution of the shareholders is greater than the capital premium formed by the capital contribution payable, which belongs to the company's capital provident fund in nature and does not constitute a shareholder's loan to the company, and the shareholders use this as a loan claim and the company to repay the debt, constitute a disguised withdrawal of capital contribution. The court held that the board of directors of Jinhua Investment Company decided to use the real estate in this case to offset the principal and interest of Lin Jinpei's capital contribution, which was essentially to convert Lin Jinpei's capital contribution belonging to the capital accumulation fund into the company's loan to Lin Jinpei, and to return it in the form of debt repayment, resulting in Lin Jinpei's disguised withdrawal of capital contribution, violating the principle of capital enrichment of the company and the provisions of the above notice of the Company Law and the State Council, therefore, the resolution of the Board of Directors on the confirmation of Lin Jinpei's loan claims and the decision to offset the debt in kind should be deemed invalid. ⑥ Although the Company Law does not explicitly include capital surplus as a statutory contribution. However, allowing shareholders to withdraw their capital surplus at will would also materially undermine the principle of corporate capital maintenance. The path to the recovery of (IV) capital reserves-after the liquidation of the company. The company's capital provident fund belongs to the category of the company's capital, and the shareholders enjoy the shareholders' equity, not the ownership. According to Article 26 of the Accounting Standards for Enterprises, the owner's equity of an enterprise, also known as shareholders' equity, refers to the residual equity enjoyed by the owner after deducting liabilities from the assets of the enterprise. It is the economic interest of the company's shareholders in the remainder of the company's total assets after deducting liabilities (I. e., the company's net assets), as opposed to ownership. Therefore, for investments that have been included in the company's capital reserve, shareholders can claim owner's equity from the company in proportion to their capital contributions after the liquidation of the company. The reasons for the liquidation of a company generally include the dissolution of a shareholder resolution, the dissolution of an administrative order and the liquidation of bankruptcy. Among them, the reason for bankruptcy liquidation is that the company's assets are not enough to pay off all the debts or the obvious lack of solvency, at this time, the liabilities are greater than the assets, the owner's equity is negative, does not involve the distribution of capital reserves. Thus, the treatment of capital reserves may only be involved in the dissolution of a shareholder resolution or an executive order. According to the second paragraph of Article 186 of the Company Law, the remaining property after the company's property is paid for liquidation expenses, employees' wages, social insurance premiums and statutory compensation, the taxes owed, and the company's debts are paid off. The company is distributed in proportion to the capital contribution of shareholders, and the company limited by shares is distributed in proportion to the shares held by shareholders. The capital surplus on the company's books is distributed together with surplus and paid-in capital in proportion to the shareholders' capital contribution or shareholding. Also, income tax is still payable on the proceeds of liquidation. Conclusion As an important asset of the company, the fund provident fund can bring real benefits to the company and shareholders by recognizing it and making good use of it.
2022-11-30
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
