Civil and commercial perspectives | How to crack the visitation rights puzzle

Recently, the author received two consultations on the exercise of visitation rights. The content of the consultation was: the party who did not raise children after divorce wanted to exercise visitation rights, but the party who raised children refused to cooperate. Although they are all related to the exercise of visitation rights, their handling methods also vary due to the different agreements or judgments on the time and manner of exercising visitation rights at the time of divorce. Legal basis for 1. visitation rights Article 10286 of the the People's Republic of China Civil Code stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist." 2. cases In combination with the relevant laws and regulations, this paper makes a simple analysis of two cases concerning the exercise of visitation rights, hoping to inspire readers to solve the problem of visitation rights. Case 1: Both Zhang and Sun were divorced by the court in March 2022. The judgment also ordered the legitimate child Zhang to be raised by his mother Sun. Zhang paid 1800 yuan at the end of each month and enjoyed the right of visitation. After the verdict came into effect, Zhang lived with Sun and his family. During this period, Zhang went to visit his married son Zhang many times but failed. In order to realize the right to visit, Zhang applied to the court for enforcement based on the effective judgment, but because the judgment did not make a judgment on the specific time and method of exercising the right to visit, the court rejected his application for enforcement. In order to realize his visitation rights, Zhang had to file a visitation rights dispute lawsuit to the court, and the court filed a case. What makes Zhang puzzled is: Why can't he directly apply for enforcement, but need to file a visit right lawsuit? Case 2: Ning and Wang registered for marriage in December 2018 and gave birth to a daughter, Ning, in October 2019. In September 2022, the two divorced through mediation by the people's court. The mediation statement stated: "The legitimate daughter Ning Moumou is raised by Wang Mou. Ning Mou bears the maintenance fee of 2000 yuan every month until the child is 18 years old. Ning Mou has the right to visit the legitimate daughter and can visit once a month (pick up at 9:00 on Saturday at the end of the month and return at 17:00 p.m.)". However, after the two parties dissolved their marriage, Wang refused to cooperate with Ning to exercise visitation rights. In order to realize the right of visitation, Ning applied to the court for enforcement according to the effective mediation. Because the mediation clearly recorded the specific time and method of exercising the right of visitation, the court accepted Ning's application for execution. Brief Analysis of 3. First of all, at the time of divorce, the specific time and manner of exercising visitation rights should be clarified. From the previous two cases, it can be seen that if the driving time and method of the visitation right are not clear during the divorce, and the party who does not raise the children is blocked from exercising the visitation right to apply for enforcement, the court will not accept it, and the parties have to file a separate visitation right dispute lawsuit. Therefore, in order to avoid the exercise of visitation rights after divorce is blocked, the specific time and manner of the exercise of visitation rights should be clarified at the time of divorce. Secondly, the visitation right is not only the legal right of the party who does not raise the children, but also the protection measure for the minor children whose parents divorce. The provisions of the the People's Republic of China Civil Code on visitation rights not only protect the basic rights of parents, but also protect the rights of minor children through legislation, and minimize the harm caused by parents' divorce to minor children. The divorce of the parents cannot block the relationship between the father or mother who does not raise the child and the child. Finally, the enforcement measures taken by judges in the enforcement of such cases. For the executor who has the obligation to pay after divorce but fails to fulfill the obligation to pay, the enforcement judge will first clearly inform him that the enjoyment of rights and the performance of obligations are equal, and that if there is a need to bear child support, it must be paid in accordance with the contract. For the parties who refuse to cooperate with the visit, the executive judge will usually have an in-depth understanding of the actual situation of the contradiction between the two parties, patiently and meticulously do the ideological work of the parties, and resolve the parties' grievances about marriage, the other party and the other party's family. At the same time, it will also explain to the party who refuses to cooperate with the other party in exercising the right of visitation. Although both parents choose to divorce for various reasons, they cannot artificially interfere with the other party's comfort and care for the child, and should be allowed to bridge the relationship with the child through visitation. "Family affection" reduces the contradiction of children's visitation rights from the perspective of being conducive to the growth of children. For parties who have no justifiable reasons and have exhausted their ideological work, but still clearly oppose law enforcement and refuse to allow applicants to visit their children, the enforcement judge will punish them in accordance with the law and impose penalties such as fines and detention in due course. Article Link 1. Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code Article 61 The people's court may take compulsory measures in accordance with the provisions of Article 111 of the Civil Procedure Law for parties or other persons who refuse to perform or hinder others from performing their child support obligations in effective judgments, rulings, or mediation documents. Article 65 If the right of visitation is not involved in the effective divorce judgment made by the people's court, and the party concerned brings a separate lawsuit on the issue of the right of visitation, the people's court shall accept it. 2. Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law Article 5103: "If the person subjected to execution fails to perform the act specified in the legal document, and the act can only be completed by the person subjected to execution, the people's court may deal with it in accordance with the provisions of paragraph 6 of paragraph 1 of Article 114 of the Civil procedure Law." (3) the People's Republic of China Civil Code Article 10286 stipulates: "After divorce, the father or mother who does not directly raise the children has the right to visit the children, and the other party has the obligation to assist."

2022-11-09

Viewpoint... The legal effect of an unregistered mortgage on the intended real estate.

The legal effect of 1. real estate mortgage contract. People's Court Press, December 2018, 1st edition, "Minutes of the Judges Meeting of the Second Civil Trial Division of the Supreme People's Court", page 241: "The establishment of a real estate mortgage is necessary for registration. If a mortgage contract is signed but the mortgage is not registered, the mortgage The right has not been established, and creditors who claim to enjoy the mortgage right shall not be supported. However, whether or not it is registered does not affect the validity of the mortgage contract, which, when validly established, is binding on both parties........." Article 60 of the Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254): "If a real estate mortgage contract is established in accordance with the law, but the mortgage registration procedures have not been completed, and the creditor requests the mortgagor to go through the mortgage registration procedures, the people's court shall support it in accordance with the law........." Article 46, paragraph 1, of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code (Law Interpretation No. 2020): "If the mortgage registration procedures have not been completed after the entry into force of the real estate mortgage contract, and the creditor requests the mortgagor to go through the mortgage registration procedures, the people's court shall support it." The conclusion of a real estate mortgage contract is a civil legal act of the parties to the contract, which is legally binding as long as it meets the conditions set out in Article 134 of the Civil Code. The Supreme People's Court has repeatedly stated in the above-mentioned judicial policy documents and judicial interpretations that the conclusion of a real estate mortgage contract and the registration of mortgage rights are two relatively independent civil legal acts. The former is an act of creditor's rights and the latter is an act of property rights. The act of creditor's rights is the cause of the act of real right, and the act of real right is the result of the actual performance of the act of creditor's rights. If the real estate mortgage contract is established in accordance with the law and is actually performed (mortgage registration), the real estate mortgage is established, and if the mortgage is not actually performed, the mortgage is not established but does not affect the legal effect of the mortgage contract. Whether the 2. fails to perform its registration obligations under the mortgage contract and is liable for breach of contract People's Court Press, December 2018, 1st edition, "Supreme People's Court Civil Trial Second Division Judges Meeting Minutes", page 241: "...... If the mortgagor is obliged to register the mortgage according to the contract, but cannot register the mortgage due to the loss or transfer of the mortgage, the mortgagor shall bear the corresponding liability for breach of contract and compensate the creditor for the loss of the performance of the interests to the extent of the value of the mortgage........." Article 60 of the Minutes of the National Court Conference on Civil and Commercial Trial (Law [2019] No. 254): "...... If the mortgage registration cannot be handled due to the loss of the mortgaged property and the transfer of the mortgaged property to another person, and the creditor requests the mortgagor to assume the liability within the limit of the value of the mortgaged property, the people's court shall support it in accordance with the law, but the scope shall not exceed the liability that the mortgagor" Article 46, paragraphs 2 and 3 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code (Fa Shi [2020] No. 28): "If the mortgaged property is lost or expropriated due to reasons not attributable to the mortgagor itself, and the creditor requests the mortgagor to assume responsibility within the agreed scope of the guarantee, the people's court shall not support it; however, if the mortgagor has received insurance money, compensation or compensation, etc., and the creditor requests the mortgagor to bear the liability for compensation within the amount received, the people's court shall support it in accordance with the law. If the mortgage registration cannot be processed due to the mortgagor's transfer of the mortgaged property or other reasons attributable to the mortgagor itself, the creditor requests the mortgagor to assume responsibility within the agreed scope of the security, the people's court shall support it in accordance with the law, but shall not exceed the scope of responsibility that the mortgagor should bear when the mortgage can be established." Due to the failure to fulfill the registration obligations stipulated in the mortgage contract, the real estate mortgage cannot be established, but the real estate mortgage contract is still valid. Can creditors hold the mortgagor liable for default? The minutes of the meeting of the judges of the Second Civil Division of the Supreme People's Court and the minutes of the National Court's Civil and Commercial Trial Work Conference held that: due to the loss of the mortgage and the transfer of the mortgage to another person, the creditor has the right to require the mortgagor to bear the liability for breach of contract to the extent of the value of the mortgage. The contents of paragraphs 2 and 3 of Article 46 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System in the the People's Republic of China Civil Code (Fa Shi [2020] No. 28) respectively stipulate whether the mortgagor is at fault for failing to perform the registration obligation stipulated in the mortgage contract, and whether to bear the liability for breach of contract: if the mortgagor is not at fault for failing to register, the mortgagor shall bear the liability for breach of contract to the limit, if there is no substitute, the mortgagor shall not be liable; if the mortgagor is at fault for failure to register, the mortgagor shall be liable for breach of contract, and the scope of liability for breach of contract shall be the scope of the security agreed upon in the mortgage contract, but shall not exceed the scope of liability that the mortgagor shall bear when the mortgage can be established. The mortgagor's liability for breach of contract is limited by factors such as the value of the collateral, the agreed scope of security, and the expected benefits of the contract. The mortgagor's liability for default is reflected in the part that the principal debtor cannot pay off, I .e. the creditor has the right to require the mortgagor to be liable for the debts that the principal debtor cannot pay off, up to the value of the collateral. The mortgagor's liability for breach of contract is filled, predictable and restrictive. This liability for breach of contract can be understood as a general guarantee to the extent of the guarantee and the value of the collateral. (2019) The main points of the Supreme Court Civil Judgment No. 2025 and the 2017 Supreme Court Civil Judgment No. 2340 also hold this view.

2022-11-09

Real Estate Perspective... Does the property company need to bear the responsibility for the loss of decoration downstairs caused by the blockage of the pipeline and the return of water?

1. Introduction The disputes caused by pipeline blockage are increasing day by day, and the phenomenon of the owner's public sewer pipeline blockage is particularly prominent. Blocking the return water will not only cause the blockage of the house to soak, but also leak to the adjacent residents, causing the loss of decoration downstairs. In view of this kind of water leakage incident, the owner sued the court and asked the upstairs residents and the property company to bear the liability for damages. The property company believes that the pipeline blockage is located in the exclusive part of the owner's house, which does not belong to its service scope and has no management and maintenance obligations. In that case, does the property company need to bear the responsibility for the decoration loss of the owner downstairs? 2. Cases and Referee's Point of View The (I) property company has the obligation to maintain and maintain the sewage pipeline. If it fails to prove that it has fulfilled the obligation of maintenance and maintenance, and is at fault for the occurrence of the damage consequences, it shall be liable according to the degree of fault. Case 1: Dispute over Compensation for Property Damage by Han Yanzhong and Chen Zenghuai (Weihai Intermediate People's Court of Shandong Province [2022] Lu 10 Min Zhong No. 1550) Referee's point of view: Yintan Property Company, as the property management company of the residential area where Chen Zenghuai lives, maintains, repairs, serves and manages the public facilities and equipment of the community. Although the sewage pipe is located in the owner's home, it cannot be used by one owner alone, so it cannot belong to the owner's exclusive part and should be a common part. In this case, the vertical main road located in the owner's home is the main drainage pipe used by the residents of the building involved in the lawsuit, which should belong to the public facilities maintained and managed by Yintan Property Company. Yintan Property Company's defense claim that the pipeline involved in the case belongs to the owner's exclusive part is unfounded in law and will not be supported. Silver Beach Property Company has the obligation to maintain and maintain the common drainage pipes involved in the above case. At present, Yintan Property Company has not submitted relevant evidence to prove that it has fulfilled the above-mentioned maintenance and maintenance obligations and is at fault, and should be liable for compensation for Chen Zenghuai's property losses. The court of second instance upheld that the blocked sewage pipeline was a common part. As the property service provider, Yintan Property Company has the maintenance obligation and shall be responsible for improper maintenance for the damage consequences involved in the case. In this case, the cause of the pipeline blockage could not be found out. The accident occurred in winter. The existing evidence showed that the property company did not take thermal insulation measures for the sewage pipeline. There was no other evidence to prove that it had fulfilled its maintenance and maintenance obligations and was at fault for the loss. The court considered that it should bear 50% of the responsibility for the accident based on the evidence in the case and life experience. Case 2: Dispute over Property Damage Compensation between Zhang Xiaoyan, Fan Kai and Inner Mongolia Nailun Property Service Co., Ltd. (Inner Mongolia Autonomous Region Higher People's Court [2020] Neimin No. 90) Referee's point of view: Nailun Property Company, as a property service enterprise in the residential area where Zhang Xiaoyan and Fan Kai live, has the obligation to maintain and repair the water supply and discharge pipelines to ensure the smooth flow of public water supply and discharge pipelines. Drainage through pipelines is the right of all residents. The normal discharge of sewage by residents through public sewer pipelines does not necessarily lead to pipeline blockage. As a property service enterprise hired by the owner, Nailun Property Company, if it can actively perform its daily dredging and inspection obligations, the damage in this case will not necessarily occur. In the previous trials in this case, Nailun Property Company did not submit evidence to prove that it performed this duty. Nailun Property Company did not fully perform its daily maintenance and management duties, resulting in the loss of 103 room due to the overflow of sewage from the 203 room kitchen. Nailun Property Company proposed that the upstairs residents should be responsible, but did not provide evidence to prove it. Although Nailun Property Company carried out some investigation work after finding the water leak and also notified Zhang Xiaoyan to go home for inspection, it did not take further appropriate measures such as notifying the residents upstairs to stop using the water pipes and dredging the water pipes in time to reduce the damage consequences when there was a great possibility of blockage of the water pipes after the investigation. Nairun Property Company is at fault for failing to properly perform its legal and contractual obligations, and there is a causal relationship between the behavior and the result of the damage. As the person responsible for the management of public facilities in the community, it should be mainly liable for the damage. In this case, Zhang Xiaoyan's 203 room and Fan Kai's 103 room were uninhabited for a long time, and the water supply and discharge were not blocked in the self-use part of Zhang Xiaoyan's house. The reason for the story was that the public water supply and discharge pipes were not blocked. As the manager of public facilities, Nailun Property Company did not submit evidence to prove that it fulfilled its obligation to dredge the pipes and assumed the main responsibility for the accident. (II), if the evidence provided by the property company is not sufficient to prove that the management obligation has been reached before the incident, or there are other faults that cause the damage, it shall also be liable for damages. Case 1: Zhao Jinsheng, Rushan Haojie Property Service Co., Ltd. and other civil judgments of second instance on property damage compensation disputes (Weihai Intermediate People's Court of Shandong Province [2022] Lu 10 Min Zhong No. 17) Judging from the agreement of the "Property Management Service Contract for Daqing Yiyuan Community and Jingyuan Community in Rushan City", Haojie Property, as the property management company of the community involved in the case, shall perform the maintenance of the building and its ancillary facilities, The statutory and contractual obligations of property services such as environmental sanitation and related order management and maintenance. In the first instance, Haojie Property recognized the company's obligation to maintain the pipeline involved, and the pipeline involved could not be determined by identification and other means because it had been unblocked. Therefore, Haojie Property claimed that it had no obligation to maintain and manage the pipeline involved, and the court did not support it. Evidence provided by Haojie Property can also confirm that the pipelines involved have been corroded for a long time and have been blocked many times since 2019. Although Haojie Property claimed that it had already maintained and overhauled the pipelines involved, it provided an on-site maintenance video, but the video was used to dredge the pipelines involved after the incident, and other evidence provided by Haojie Property was not sufficient to prove that it had fulfilled its obligations of prompting, maintenance and management before the incident. Therefore, the court of first instance found that Haojie Property did not timely maintain and repair the pipelines involved and fundamentally eliminate the faults, and did not timely find out the soaking conditions in the homes of Suo Yongxiang and Li Hong. It was at fault for the occurrence of damage consequences and should appropriately bear the liability for damages. There was nothing wrong with it, and the court maintained it. During the first instance of this case, the court found that the sewer involved in the case had been blocked, but the property company did not completely eliminate the fault, and the maintenance records provided by the property company after the incident were not enough to confirm that it had fulfilled its prompt, maintenance, and maintenance before the incident. Management obligations. During the second instance, although the property company provided the water supply and drainage inspection and maintenance records of the residential area involved in the case, it did not provide it in the first instance, which is not new evidence, and the property company did not give a reasonable explanation, so the court of second instance did not accept it. Case 2: Civil Judgment of First Instance on Property Damage Compensation Dispute between Zhang Jianxin, Wei Rongfang and Shanghai Wanya Property Management Co., Ltd., Gu Nanhong (Shanghai Pudong New Area People's Court [2020] Shanghai 0115 No. 31086 Minchu) The referee's point of view: the leakage area is the lowest exit of the drainage riser of the whole building. although the defendant wan ya property provided its regular inspection records of dredging the sewer pipe, it could not prove that it kept the main sewer pipe unblocked all the time, especially failed to find out the hidden danger of leakage caused by the residents' conversion of laundry into cloakroom in time. therefore, the hospital believed that wan ya property company failed to fulfill the relevant maintenance and maintenance agreements of the property service contract, the plaintiff shall also be liable for the losses. In this case, the plaintiff, defendant Gu Nanhong and Qiu Tianhao all converted the laundry area of the north room into a cloakroom. Although the property company provided regular inspection records for dredging the sewer pipes, it did not earnestly fulfill the relevant maintenance and maintenance agreements of the property service contract, and promptly discovered the hidden risks of household decoration and reconstruction, and was at fault for the occurrence of this water leakage accident. Bear the corresponding responsibility. (III) the property company proves that it has fulfilled the obligation of proper maintenance and communication and coordination, and that there is no fault in the occurrence of the damage consequences, it shall not be liable. Case 1: Dispute over Compensation for Property Damage by Li Gang and Zheng Pengcheng (Shouguang Municipal People's Court of Shandong Province [2022] Lu 0783 Minchu No. 2910) Referee's point of view: For the plaintiff's claim of fault liability based on the negligence of the maintenance and repair duties of Zhongnan Property Company. After examination, the court held that if the perpetrator infringes upon the civil rights and interests of others by fault and causes damage, he shall bear tort liability. The proof of the property company is sufficient to prove that it has fulfilled its obligations of proper maintenance and communication and coordination, and there is no fault in the occurrence of the consequences of the damage, so the plaintiff claims that it is liable for compensation, and the rationale is insufficient, and the court does not support it. In this case, after the property company found water seepage, it contacted the owner in time, dredged the pipeline, and cleaned up the blockage as leftovers and oil stains. During the trial, the property company provided a copy of the house purchase contract, the owner's management manual, WeChat chat records, photos, and regular dredging records to prove that it has fulfilled its obligations of proper maintenance and communication and coordination, and is not at fault for the damage results and is not responsible. Case 2: dispute over compensation for property damage between Bei Di and Beijing Purui Property Management Co., Ltd. (Beijing Higher People's Court (2021) Jingmin Shen No. 3670) Referee's point of view: on the question of whether Preh Property Company should be liable for the loss of water leakage in the house involved. According to the facts found out, house 304 has been reported for repair many times due to water leakage. after receiving the water leakage report, preh property company carried out various work such as inspection, coordination with the maintenance personnel of the heating company for investigation, water absorption treatment, etc. to alleviate and solve the water leakage situation of the house involved. It can be seen that Preh Property Company has taken active measures in a timely manner on the leakage of the houses involved, fulfilled the corresponding management, maintenance, inspection and other property service obligations, and achieved certain results. Combined with the application form for decoration of No. 404 and No. 504 houses and the evidence such as decoration acceptance and settlement form, it can be concluded that Preh Property Company has informed the matters needing attention in the relevant decoration behavior, and there is no case of neglecting to perform the property service obligations, and there is no need to be responsible for the leakage losses of the houses involved. In this case, the property company promptly took positive measures on the leakage of the house involved in the case, informed the matters needing attention in the decoration behavior, and fulfilled the corresponding property service obligations such as management, maintenance and inspection, so it did not need to bear the responsibility. 3. Summary Article 56 of the property management regulations of Shandong Province stipulates that "the contents of property services mainly include the following matters: (1) the use, management and maintenance of common parts of the property and common facilities and equipment; the maintenance of (II) public greening; the maintenance of environmental sanitation in (III) public areas; the assistance and management services for the maintenance of order and safety precautions in (IV) public areas; (V) the obligations of stopping and reporting prohibited acts in the use of property; (VI) the accounting management of property maintenance, renewal and renovation costs; (VII) property service files and the custody of property files; (VIII) other property service matters". It can be seen that the property company has legal obligations to manage and maintain the shared facilities and equipment in the community. The main drainage and sewage pipes used by the residents in the community belong to public facilities. The property company should manage and maintain them and ensure smooth flow. The "Standard for Property Management Service Level of Ordinary Residential Quarters" (for Trial Implementation) issued by the China Property Management Association stipulates that shared rain and sewage pipes shall be dredged once a year, and rain and sewage wells shall be inspected once a month/quarter/half a year according to different grade standards, and shall be cleared in time according to the inspection situation. Property companies should also refer to industry standards and be responsible for cleaning and dredging pipelines in the community. The "Property Service Contract" and "Preliminary Property Service Agreement" clearly stipulate the property service quality standards with reference to the property service level standards issued by various cities. For example, the property service agreement in Jinan City stipulates that the property service standards provided reach the five-star standard stipulated in the "Jinan City Ordinary Residential Property Service Grade Standard" (Jijiafei Zi [2012] No. 76), which specifies that the property company should check the rainwater pipes, septic tanks and other parts once a quarter and clean them twice a year to ensure smooth drainage and no blockage. Therefore, based on the contract, the property company should also assume the management and maintenance obligations of the public sewer. Article 35 of the "Property Management Regulations" stipulates that "property service companies shall provide corresponding services in accordance with the provisions of the property service contract. If the property service enterprise fails to fulfill the agreement of the property service contract, resulting in damage to the personal and property safety of the owner, it shall bear the corresponding legal liability in accordance with the law." therefore, if the property company fails to perform its obligations in accordance with the contract, it shall be liable for the property loss of the owner downstairs if it is at fault. 4. Risk Alert With the increasing number of similar disputes, property companies should pay attention to strictly in accordance with legal provisions, contractual agreements and industry standards to perform maintenance and management obligations, regularly dredge pipelines, clear them as appropriate, and keep regular maintenance records. At the same time, the property company should strengthen regular inspections and check the risk of water leakage, notify the relevant owners in time after finding abnormalities, and assist in dredging the pipeline to avoid further expansion of losses. In case of similar disputes, the property company shall do a good job in retaining relevant evidence, and effectively record and preserve the on-site cleaning process and the items cleaned up. If the lawsuit is involved in the later period, the property company can submit to the court regular pipeline dredging records, on-site photos, communication and coordination records, photos, videos and other evidence to prove that it has fulfilled its obligations to manage and maintain the pipelines involved before the incident, avoided its own risks, and also helped the court to better find out the facts of the case and the cause of the blockage, and clearly define the responsibilities of all parties.

2022-11-04

Viewpoint... An analysis of the subject qualification of the parties in the derivative litigation of limited partners.

Introduction Article 68 of the the People's Republic of China Partnership Act provides for a system of derivative litigation for limited partners, which gives limited partners the right to sue in their own name on the basis of the interests of the partnership if the executive partner neglects to exercise his rights. In the limited partner derivative litigation, the litigation participants generally include the plaintiff, the defendant and the partnership itself, but there are no clear legal provisions on how to determine the subject of the plaintiff, the scope of the defendant and the litigation status of the partnership itself, and there are also some disputes in the theoretical and judicial practice. The plaintiff's subject qualification of the derivative action of the 1. limited partner. According to section 68 of the the People's Republic of China Partnership Act, the subject of a limited partner derivative action is the limited partner. It is not controversial for a limited partner to bring a lawsuit as a plaintiff in his or her own name, but certain conditions must be met in order to be considered a qualified plaintiff. 1. Have direct limited partner status A limited partner derivative action is a lawsuit brought by a limited partner in his own name and for the benefit of the partnership. As the name implies, the limited partner who brings the lawsuit must be the limited partner whose interest belongs to the partnership, that is, the plaintiff shall be the property share holder of the partnership, and the holding shall be directly held. The party who indirectly holds the property share of the partnership is not a qualified plaintiff in the derivative action of the limited partner. In (2021) Yue 01 Min Zhong No. 26437 case, the Guangzhou Intermediate People's Court held that the case was a partnership contract dispute. According to the relevant provisions of the the People's Republic of China Partnership Law, when the rights and interests of the Shengzhan enterprise were infringed, the limited partners of the Shengzhan enterprise All partners can claim rights or file a lawsuit against the responsible partner; if Wu Xinfeng, the executive partner of the Shengzhan Enterprise, is lazy in exercising rights, the limited partner may urge him to exercise his rights or bring an action in the limited partner's own name for the benefit of the enterprise. According to the facts ascertained in the original trial, the five appellants in this case are limited partners of Wuhu Kangsheng Center, not limited partners of Shengzhan Enterprise, nor executive partners of Wuhu Kangsheng Center, and the five appellants are not qualified plaintiffs in this case. 2. The litigation process should continue to have limited partner status. As far as the subject of litigation is concerned, a limited partner who brings a limited partner derivative action should always have the status of a limited partner of the partnership until the end of the proceedings, and if he withuses from the partnership in the course of litigation, he will no longer have the basis of rights for the benefit of the partnership, that is, he will lose the qualification of the corresponding derivative subject. In addition, in practice, it is questioned whether the limited partner has not become a limited partner at the time of the infringement of the partnership, and then the new partner has become a limited partner of the partnership, whether this situation has an impact on the subject qualification of the limited partner to bring a derivative action. It is generally held that a limited partner who continues to have the status of a limited partner from the time of filing a lawsuit to the end of the procedure is a qualified plaintiff in a derivative action of a limited partner, so whether he or she has the status of a partner at the point of damage to the interests of the partnership does not affect the qualification of the limited partner as a subject of litigation. 3. Generally should be a "named" limited partner. As for whether the dormant limited partner can bring a derivative action, there is no clear stipulation in the current laws and regulations. However, referring to the shareholder representative action, there may be some obstacles for the dormant limited partner to bring a derivative action (only different identification of internal and external disputes of the partnership enterprise without registration, identification of non-qualified plaintiff subject in the case of dormant holding). Therefore, in the derivative action of the limited partner, the subject of a suitable plaintiff to bring a lawsuit shall generally be a limited partner who has been registered in industry and commerce. In the case of (2016) Beijing 0107 Minchu No. 14917, the Beijing Shijingshan District People's Court held that Article 66 of the Partnership Law stipulates: "The registration of a limited partnership shall contain the name or name of the limited partner. And the amount of capital contribution subscribed". This clause provides that when a limited partnership is registered, the limited partner's contribution must be registered. The registration of an enterprise has statutory external effect and is the criterion for determining whether it has the status of a limited partner of an enterprise. In this case, Song Qifeng invested in Hongxin Management Center and signed a Partnership Agreement, but Hongxin Management Center did not register Song Qifeng as a limited partner. Therefore, Song Qifeng is not a qualified plaintiff in a limited partner derivative action. In summary, in the absence of other special considerations, it is generally believed that as long as the limited partner status (directly holding a share of the partnership property and registered with the industry and commerce) continues from the time of the litigation to the end of the proceedings, the limited partner should be considered a qualified plaintiff to bring a derivative action. As to the proportion of the limited partner's share of the partnership property and whether the other limited partners of the partnership unanimously agree to file a derivative action, it does not affect the qualification of the limited partner as the subject of litigation, which is in line with the legislative intent of the the People's Republic of China Partnership Law and is recognized and followed in judicial practice. In the case of (2016) Supreme People's Court No. 756, the Supreme People's Court held that the relationship between Jiao and Li and Hexin Investment Center is not the relationship between creditors and debtors, but the relationship between limited partners and partnerships. The provisions of Article 73 of the the People's Republic of China Contract Law cannot be applied. The Beijing Hexinhengxuan Investment Center (Limited Partnership) Partnership Agreement stipulates that a limited partner has the right to urge him to exercise his rights or to file a lawsuit in his own name for the benefit of the enterprise when the executive partner is negligent in exercising his rights, and does not require the unanimous consent of all limited partners to file a lawsuit. Article 68, paragraph 2, paragraph 7, of the the People's Republic of China Partnership Law stipulates that when an executive partner neglects to exercise his rights, the limited partner urges him to exercise his rights or to bring a lawsuit in his own name for the benefit of the enterprise, which shall not be regarded as the execution of partnership affairs. This provision gives the limited partner of the partnership the right to sue on behalf of the partnership in his own name and does not limit his or her claim to the extent of his or her personal contribution, as long as the requirement is met for the benefit of the partnership. Jiao and Li filed a lawsuit on behalf of Hexin Investment Center, which not only complied with the agreement of the "Beijing Hexin Hengxuan Investment Center (Limited Partnership) Partnership Agreement", but also did not violate the provisions of the "the People's Republic of China Partnership Law", so they rejected Anhui Ruizhi Real Estate Development Co., Ltd.'s appeal that Jiao Jian and other limited partners were not qualified as the subject of litigation. The scope of the defendant's subject in the derivative action of the 2. limited partner. With regard to the subject of the defendant in a derivative action of a limited partner, the the People's Republic of China Partnership Law does not specifically provide for this, but under article 68 of the the People's Republic of China Partnership Law, the defendant in a derivative action of a limited partner shall be a party to the detriment of the interests of the partnership. It is generally believed that the defendants of limited partner derivative litigation should include two types, one is the third party outside the partnership, that is, the third party that has a creditor's rights and debts relationship with the partnership or infringes on the rights and interests of the partnership, and the other is the interested party within the partnership, that is, the partner who has a creditor's rights and debts relationship with the partnership or damages the interests of the partnership through improper behavior. In addition, it has been argued that the premise of a derivative action by a limited partner is that "the executive partner is negligent in exercising his rights", so the scope of the defendant in a derivative action does not include the executive partner, I .e. the general partner. The author believes that this view misinterpret the normative connotation of Article 68 of the the People's Republic of China Partnership Law. Limited partner derivative litigation is the right granted by law to limited partners to file litigation in their own name when the interests of the partnership are damaged due to the negligence of the executive partner. The executive partner is also a party potentially damaging the rights and interests of the partnership. If it is excluded from the scope of the defendant in derivative litigation, it would not be conducive to the protection of the rights and interests of the partnership and other partners, nor would it be consistent with the legislative intent of the limited partner derivative action. Litigation status of 3. partnerships In view of the fact that the partnership is the subject of the interest of the limited partner derivative action, and in order to find out the facts of the case, in judicial practice, the partnership is generally listed as the third party of the limited partner derivative action. However, the partnership participates in the derivative litigation of the limited partner as a third party, and there are still disputes and practical dilemmas in the theoretical circle: if the partnership is a third party with an independent claim, there is a conflict with the plaintiff, I .e. the limited partner, in the derivative litigation; if the partnership is a third party without an independent claim, it is contrary to the ownership of the derivative litigation interests. In addition, there are also views that the partnership should participate in the derivative proceedings as a witness, only to ascertain the facts of the case. Litigation status of 4. other partners Regarding the legal status of other partners of the partnership in the derivative litigation of limited partners, as far as judicial practice is concerned, there are mainly the following treatment methods: for other limited partners of the partnership, they have the right to participate in the litigation as the plaintiff together with the limited partner who filed the derivative litigation, or as a third party without independent claim; for the general partner of the partnership, because he does not have the status of limited partner, therefore, it can only participate in derivative actions as a third person without an independent claim, except where the limited partner brings a derivative action against the general partner as a defendant.

2022-11-04

The Power of Public Welfare | Zhou Jiakui, Deputy Director of Zhongcheng Qingtai Jinan Institute, was invited to give a special lecture on Xi Jinping's rule of law thought to the "Cadre School" of Jinan Administrative Examination and Approval Service Bureau.

In order to deepen the study and education of Xi Jinping's rule of law thought, and enhance the political consciousness, ideological consciousness and action consciousness of cadres and workers in administration according to law. On November 2, lawyer Zhou Jiakui, deputy director of the Civil Committee of the Shandong Lawyers Association and deputy director of Zhongcheng Qingtai (Jinan) Law Firm, was invited to give a special lecture on Xi Jinping's rule of law to the "Cadre School" of the Jinan Administrative Examination and Approval Service Bureau. Shi Lihua, member of the Party group and deputy director of Jinan Administrative Examination and Approval Service Bureau, presided over the lecture. Members of the leading party group of the bureau and other municipal leading cadres, first-level investigators, heads of various departments of the bureau, and members of the municipal enterprise service center attended the lecture. Other cadres and workers of the bureau and the municipal enterprise service center attended the lecture online. In this lecture, lawyer Zhou jiakui gave a comprehensive and detailed explanation of the essence of Xi Jinping's thought on the rule of law from the aspects of the formation process of Xi Jinping's thought on the rule of law, the key requirements of promoting the comprehensive rule of law, the in-depth implementation of Xi Jinping's thought on the rule of law, and the "voice of the rule of law" of the 20th CPC National Congress; this paper summarizes the methodology of implementing Xi Jinping's thought of the rule of law from the aspects of politics, people, systematicness and practicality, and explains in simple terms what is meant by people-centered and how to prevent administrative legal risks through the combination of theory and practice. This lecture provides strong scientific guidance for practicing the core concept and spiritual essence of Xi Jinping's thought of the rule of law, guiding the practice of the rule of law and administration according to law. After the meeting, the host, Director Shi, fully affirmed and hoped that Lawyer Zhou would continue to provide legal support for their school.

2022-11-03

Point of view... The necessity of standardized management of enterprise intellectual property assets is (II).

2. Patent Asset Management For a long time, patents have been more about how to obtain patent rights in the concept of Chinese people, and it is already a higher understanding of how to use patents to occupy a larger market share and obtain higher profits. At present, there is not enough understanding. Patents are not only a tool to ensure the operation of the real economy, but also a means of production. The basic application of patents should be to integrate patents as means of production with other means of production and to realize economic value through innovation and market operation. The attribute of (I) means of production determines that patent assets should be managed in a standardized manner. Because patent information is a kind of digital information, patents have higher requirements for the controllability of the production process than physical production materials. Relatively speaking, digital information depends more on standardized management, but also because of its own digitization, once patented assets are standardized management, the risks it faces as a means of production in the production process are easier to control, in other words, The return on management is relatively high. As a kind of digital information, the process data such as patent information delivery needs strict process management to ensure that the process data are obtained, sorted and stored without omission, so as to determine what happened in the process of patent and its information generation, examination, authorization and implementation, which is helpful to find the node of the problem, so as to solve the related problems pertinently. There is such a fact that no matter what the subject of patents is, most of them are industrialized and create output value, and universities are the main subjects of patents, but the technical solutions required by universities to generate patents are mostly laboratory products. And most of them are inventions and creations of students without any engineering practice experience, and the probability of direct industrialization is relatively low. However, students who are not bound by various practical experience and knowledge of engineering are more likely to come up with some novel solutions, which may represent the future development direction of a certain technology. In the process of implementing university patents to enterprises, it is often necessary to make substantial changes to the corresponding patented technology to meet the needs of the project, and the resulting new technological achievements are often more easily accepted by the market. Some of these technological achievements have a certain probability of becoming new patents. Compared with university patents, these new patents often have a higher restriction on the market operation of related products. The university patent is far from the engineering program, and even changes in principle, which does not have any impact on the market operation of related products. School-enterprise cooperation is a good thing, but when there is income, especially when the income is relatively high, it is likely to cause disputes. The key is that the market operation has a dominant role in the patent, the patent right of these patents and the integrity of the patent right to the promotion and application of related products often have a great impact. It should be known that even if the school-enterprise cooperation is bound by the relevant technology contract, the performance of the contract will often produce various situations due to the realization of technology, which may lead to the ownership of new technological achievements in an uncertain state. The integrity of patent rights has a great impact on enterprises, even if the rights are shared, such as universities and colleges that share the rights, there is still room for others to implement the common patent rights, which may result in the unfavorable market structure of enterprises. The complexity of (II) patent factors determines that patent assets should be managed in a standardized manner. There are three main factors to be considered in the management of patent assets, namely, legal, technical and industrial factors, and the following is an example of the areas of concern corresponding to legal factors: Legal factors include, but are not limited to, the integrity of ownership, the degree of legal protection, the stability of rights, dependence, the judgment of patent infringement, and the remaining useful life. The integrity of the ownership has been covered in the previous article. This alone is enough to have a great impact on the market structure of related products, and the integrity of the ownership is only one of the patent legal factors that should be paid attention to. Therefore, only the standardized management of patent assets can reduce the risks caused by management problems. For example, the degree of legal protection depends on the quality of the patent text, the degree of coverage of the claims and the legal status. As for the quality of writing, enough attention has been paid in recent years, but there is still a lot of room for the improvement of the overall quality of writing. There are many discussions in the industry, so I will not repeat them here. As for the legal status, in short, that is, the current stage of the patent or patent application and the corresponding technological achievement, it is necessary to know that the plasticity of different stages is different and the degree of accumulation is different. In addition, the degree of coverage of the claims is also related to the quality of writing, in other words, an extension of the quality of writing, which is discussed more in the industry and will not be repeated here. Regarding the stability of rights, there is an inappropriate case for reference. Affected by the social awareness of patents, many market entities are accustomed to market layout before applying for patents, or even not applying for patents, which may lead to Loss of rights or direct acquisition by others. According to the law alone, sales constitute disclosure in the sense of patent law, resulting in the disclosure of technical achievements as a carrier, and the patent converted from the technical achievements may not meet the provisions of novelty and be invalid (the examination stage does not examine the disclosure of facts including sales). However, many facts will be diluted due to the advancement of time, resulting in objective facts that cannot be reproduced by available means. Therefore, public actions such as prior sales do not necessarily cause the relevant patents to be invalidated because they do not meet the novelty requirements., Making the relevant rights gradually stabilize with the advancement of time. If an enterprise ignores the various factors that affect the stability of rights, on the one hand, it may lead to an unstable base of patent rights held, and on the other hand, it may lead to competitors acquiring relevant patents, and after a certain point in time has passed, the unstable patents may tend to be stable and difficult to invalidate. Limited by space, this paper only describes the complexity of the patent factors, and the various factors will not be described. From the above description of the limited content, it can be seen that if the patent assets are not standardized, it is difficult to cover all aspects of the patent factor, and may put their own market layout at risk. The diversity of (III) patents determines the standardized management of patent assets. In terms of broad distinctions, patents are acquired in the form of original acquisition and subsequent acquisition. Among them, the original acquisition of the dispute stems from the expected authorized technology is independent development, commissioned development, cooperative development, or other forms of research and development behavior and other basic forms of technological achievements, the basic form of development behavior there are many controllable or uncontrollable factors, resulting in unclear ownership of technological achievements, and affect the resulting determination of patent rights. Similarly, for example, foundry, commissioned processing, supporting, etc. are likely to produce new enough to affect the market layout of the technology. For example, contract manufacturing, typically, many domestic enterprises were contract manufacturing enterprises of some foreign enterprises in the early years, and later developed into enterprises that competed with the contract manufacturing enterprises, and the main problem lies in the lack of control over technological achievements; on the contrary, there is another phenomenon in China, that is, some enterprises gradually become contract manufacturing enterprises of other enterprises, lack of innovation ability or improper control of technological achievements is one of the main reasons. There are similar problems in commissioned processing and matching, which will not be elaborated here. In addition, the enterprise's own technological iteration in the industrialization process is the basis for the generation of valuable patents, obviously, the implementation of existing patents is the basis for testing its market adaptability, and the identification and adaptive adjustment of obstacles in the industrialization process of existing patented technology is the premise of the generation of valuable patents. There are relatively many ways to follow the acquisition, which can be the active behavior of the transferee or passive acceptance. The dilemma of subsequent patents is mostly due to the fact that the transferee's technology acquired based on the transfer constitutes a fragmented system, and the subsequent patents are, in more cases, technologies eliminated by others, and have little effect on market operations. In addition, the subsequent patents are also affected by the research and development background, because the party that transfers the patent is often the party that has a certain accumulation in related fields, and it is the party that is more likely to produce alternative technologies. One of the basic indicators of patent value is replaceability. It should be known that when the replaceability of a certain patent is relatively enhanced, its own value will weaken. Generally speaking, the transferee of patents is a relatively weak party, but the behavior of a company shows that the hash distribution of patents in related fields may be directly related to the company's market layout, in order to improve their own control, the acquisition of target patents has become one of the ways for such enterprises to improve the enterprise's patent layout. Patent transfer has become a controversial game in the behavior of some entities, known as non-patent enforcement entities, commonly known as patent trolls. The famous iPEL in the industry was founded by Brian Yates, a former California lawyer. There are more than 40 technology companies under the name of IPELT, and these technology companies are basically non-patent implementation entities. Among them, the American Global Innovation Aggregation Co., Ltd. has acquired some patents held by domestic patentees including Huawei and ZTE, and hold these patents in the country against Asus, Sony, Extreme Network, NetEase, Blizzard and other patent infringement proceedings. The non-patented implementing entity is a unilateral attack with no defense, because it does not implement the patent itself, and the accused infringer has no industrial goal to counter it. For most enterprises, such as the patent war between Huawei and Qualcomm, there are attacks and defenses, which requires the first attacked party to hold some patents that can counter the other party, that is, the attacked party is required to have a certain amount of patents, which will inevitably arouse attention to the next article. When the number of (IV) patents held is large, there will be higher requirements for the standardized management of patent assets. An investigation agency in the United States once conducted a survey, and the result of the survey was that about 5-10% of the patents held by an innovative company will never be used again in the future. These patents are not assets, but burdens for companies. Therefore, it is very necessary to take stock of the patents held, especially when the proportion of patents that can be implemented by Chinese enterprises is relatively low. It will be very easy to take stock of patents under the condition of standardized management of patent assets. For patentees with a certain amount of patents, there are relatively few or even no patents in isolation, and regular patent asset management should include grouping management, so as to maximize the value of patent assets through patent integration, and at the same time, it is easy to check and fill gaps according to the integrated patent layout. Patents held by a company are often not distributed in the field of technology, even if they are not in the same field of technology, they will be related to the field of technology. For diversified companies, the same applies in a particular industry direction. But even if the same company holds a large number of patents, the relationship between patents will become very complicated. The relationship between patents includes, but is not limited to, obstacles, substitutions, and complementarities, mainly due to the accumulation, iteration, and change of technological achievements. Strictly speaking, a patent right is an exclusive right, and the ability to exclude others from use does not mean that the right holder is free to use it himself, but lies in the aforementioned obstacle relationship. For example, the implementation of a subordinate patent in the sense of patent law depends on the implementation of the subordinate underlying patent, so the implementation of the subordinate patent is subject to the underlying patent, and if the holder of the underlying patent is someone else, it is an obstacle to the holder of the subordinate patent. The barrier relationship is also manifested in a two-way barrier relationship, which is manifested in the fact that the party holding the basic patent may be the originator of the abstract technical solution, for example, it may be a pioneer in a certain technical direction. Pioneering means nothing, and from scratch means immaturity. The patent held by the party holding the subordinate patent may be the result of technological iteration, and the party holding the basic patent may seek to implement the subordinate patent, thus forming a two-way barrier relationship between the basic patent and the subordinate patent. Substitution and complementarity relationships are only used in this paper to further show that there are relatively many factors to consider when the number of patents held is large, and the necessity of standardized management of patent assets is particularly important, which is detailed in this paper. Conclusion This paper takes trade secrets and patents as an example to illustrate the necessity of standardized management of intellectual property assets of enterprises, and the standardized management of intellectual property assets is a necessary condition for the production of intellectual property materials, the underlying logic to enhance the awareness of intellectual property rights of enterprise management and employees, and the basis for promoting independent innovation and sustainable and healthy development of enterprises. The standardized management of intellectual property assets is conducive to the establishment of links with physical assets, the protection of the value-added of physical assets, but also the basis for dealing with all kinds of intellectual property risks in the market, so as to improve the market control ability of enterprises, maintain and consolidate the competitive advantage of enterprises.

2022-11-02

Viewpoint | Practical analysis of the way shareholders exercise their right to know

1. Introduction The shareholders' right to know is a basic right of shareholders, but the exercise of this right may also have a certain impact on the normal operation and management of the company, this paper will combine the current law, the provisions of judicial interpretation and the judicial case of shareholders' right to know to analyze the exercise of shareholders' right to know. 2. Main Legal Provisions the People's Republic of China Companies Act (I) (as amended in 2018) Article 33 Shareholders shall have the right to consult and copy the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request access to the accounting books of the company. If a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose and may damage the legitimate interests of the company, it may refuse to provide access, and shall reply to the shareholders in writing within 15 days from the date of the written request of the shareholders and explain the reasons. If the company refuses to provide inspection, the shareholder may request the people's court to require the company to provide inspection. Article 97 Shareholders shall have the right to consult the articles of association, the register of shareholders, the stubs of corporate bonds, the minutes of the general meeting of shareholders, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports, and to make suggestions or inquiries about the operation of the company. (II) the Supreme People's Court on the application of<中华人民共和国公司法>(IV) of Provisions on Certain Issues (2020 Amendment) Article 10 If the people's court hears a case in which a shareholder requests to consult or copy the company's specific documents and materials, and supports the plaintiff's claim, it shall clearly specify in its judgment the time and place of consulting or copying the company's specific documents and materials and the directory of the specific documents and materials. If a shareholder consults the company's documents and materials in accordance with the effective judgment of the people's court, in the presence of the shareholder, it may be assisted by accountants, lawyers and other intermediary practitioners who have the obligation of confidentiality in accordance with the law or in accordance with the code of practice. (III) of the Guiding Opinions of the Higher People's Court of Beijing Municipality on Several Issues concerning the Trial of Company Dispute Cases Article 17 The shareholders of a limited liability company may entrust lawyers and certified public accountants to exercise the right of access to the company's accounting books on their behalf. Sorting out 3. referee rules General principles for the exercise of (I) shareholders' right to information According to Articles 33 and 97 of the Company Law, there are two main ways to exercise shareholders' right to know, one is "inspection and copy" and the other is "inspection only". The way for the shareholders of a limited liability company to exercise the right to know about the articles of association, the minutes of the shareholders' meeting, the resolutions of the board of directors, the resolutions of the meeting of the board of supervisors, and the financial and accounting reports is "inspection and copying"; the way for the shareholders of a limited liability company to exercise the right to know about the "accounting books of the company" is "inspection only", and they have no right to copy, and should submit a written request to the company, the right to know can be exercised through litigation only when the company refuses to consult or overdue reply; shareholders of a joint stock limited company exercise the right to know about "articles of association, register of shareholders, corporate bond stubs, minutes of shareholders' meeting, resolutions of board of directors, resolutions of board of supervisors, financial and accounting reports" in a way "only for inspection" and have no right to copy. [Case 1] Li Shujun, Wu Xiang, Sun Jie, Wang Guoxing and Jiangsu Jiade Real Estate Development Co., Ltd. Shareholder's Right to Know Dispute (in Supreme People's Court Bulletin, No. 8, 2011, Case No.:(2009) Suzhong Min Er Zhong Zi No. 319, Trial Court: Suqian Intermediate People's Court, Jiangsu Province) The court held that the company law gives shareholders the right to be informed of the company's operating conditions and business information, but it also stipulates the scope of the shareholders' right to exercise the right to know. The first paragraph of Article 34 of the Company Law limits the documents that shareholders have the right to copy to the articles of association, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. The second paragraph only stipulates that shareholders can request to consult the company's financial and accounting books, but it does not stipulate that they can be copied, and there are no relevant provisions in the articles of association of Jiade. Therefore, the fourth appellant's claim for copying Jiade's accounting books and other company information is neither legally required nor beyond the agreement of the articles of association, so it is not supported. [Case 2] Dispute over Sichuan Tianjian Optoelectronic Technology Co., Ltd. and He Jin Shareholders' Right to Know (Case No.:(2021) Sichuan 01 Minzong No. 23387, Trial Court: Chengdu Intermediate People's Court of Sichuan Province) The court held that Article 97 of the the People's Republic of China Company Law clearly stipulates that shareholders of a joint stock limited company only have the right to access relevant information, not the right to copy. Therefore, the court of first instance did not support He Jin's request to copy the articles of association, the register of shareholders, the minutes of the shareholders' meeting, the resolutions of the board of directors, the resolutions of the board of supervisors, and the financial accounting report. (II) "look up" whether the accounting books contain "excerpts" In judicial practice, it is generally accepted that shareholders of a limited liability company have no right to copy the company's accounting books, and there are two main different judicial views as to whether the contents of the accounting books can be extracted: Viewpoint 1: Article 33 of the Company Law only provides for the exercise of the right to information of "inspection" and "copying", and excerpts are more similar to copying and should not support requests for excerpts from shareholders of limited liability companies. [Case 1] Dispute between Shandong Zhongting Network Technology Co., Ltd. and Liu Chunping over shareholders' right to know (Case No.:(2021) Lu 03 Minzong No. 4328, Trial Court: Zibo Intermediate People's Court of Shandong Province) The court held that shareholders only have the right to consult the company's accounting books, not the right to copy or extract accounting books, nor the right to consult, copy or extract accounting vouchers. Liu Chunping also did not provide evidence to prove that the company's articles of association or the company's shareholders have other agreements on extracting the company's accounting books and consulting, copying and extracting accounting vouchers. Therefore, Liu Chunping's claims on copying and extracting accounting books and consulting, copying and extracting accounting vouchers, the law is unfounded and will not be supported. Viewpoint 2: For the "access" to the accounting books expressed in the main text of the civil judgment, the civil enforcement should allow the right holder to implement it to include "viewing and excerpting". The main reasons are as follows: 1. Excerpts are an auxiliary means for shareholders to access accounting books. The company's accounting books generally include a large number of professional data information, in the case of shareholders can not fully understand the professional data information, can not be considered that only shareholders to consult the accounting books to achieve the right to know, excerpts are also to assist shareholders to consult the company's documents and materials, understand the company's information methods. 2. Excerpts are not equivalent to copying. Excerpts and copies have different legal meanings. "Excerpts" can be understood as "selecting a part of the content to be copied", "copy" can be understood as "making the same according to the original", excerpts do not belong to copying in essence. 3. If the shareholders divulge the company's trade secrets in the process of exercising the right to know by extracting the accounting books, resulting in damage to the legitimate interests of the company, they can be remedied in accordance with the law. [Case 2] Dispute over Shareholders' Right to Know between Beijing Beiaikang Biotechnology Co., Ltd. and Dongfeng Enterprise Co., Ltd. (Case No.:(2020) Supreme Law Enforcement Supervision No. 97, Trial Court: Supreme People's Court) The court held that the focus of the case was whether the shareholders' access to the company's accounting books contained extracts in the exercise of their right to information. First, excerpts are an auxiliary means for shareholders to exercise their right to know and access accounting books. The shareholders' right to know is the right of the shareholders of the company to know the information of the company and the affairs of the company, and it is the legal right and inherent right of the shareholders. Access to accounting books is the way to realize the shareholders' right to know. Article 33 of the Company Law stipulates that "shareholders shall have the right to consult and copy the articles of association of the company, the minutes of the shareholders' meeting, the resolutions of the meetings of the board of directors, the resolutions of the meetings of the board of supervisors and the financial and accounting reports. Shareholders may request to consult the accounting books of the company". The company's accounting books generally include a large number of professional data information, in the case of shareholders can not fully understand the professional data information, can not be considered that only shareholders to consult the accounting books on their own to achieve the right to know. In this regard, Article 10 of the (IV) for interpretation of the Company Law stipulates that if a shareholder consults the company's documents and materials in accordance with the effective judgment of the people's court, in the presence of the shareholder, it may be assisted by accountants, lawyers and other intermediary practitioners who have the obligation of confidentiality in accordance with the law or in accordance with the code of practice. The provision makes it clear that the exercise of shareholders' right to information can be assisted by professionally competent personnel, the purpose of which is to help shareholders understand the company's information. Similarly, excerpts are also a way to assist shareholders in accessing company documents and materials and understanding company information. Whether it is to hire professionals, or excerpts, is to assist shareholders to realize their right to know the means. Second, in general, excerpts are not equivalent to copying. Article 70 of the "the People's Republic of China Civil Procedure Law" stipulates that the original shall be submitted for documentary evidence, and the original shall be submitted for material evidence. If it is really difficult to submit the original or the original, copies, photos, copies, or excerpts may be submitted. Article 44 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates that when extracting documents and materials related to the facts of the case produced by the relevant unit, the source shall be indicated and the seal of the production unit or the custody unit shall be affixed. With reference to the spirit of the relevant provisions of the law and judicial interpretation on evidence, excerpts and copies have different legal meanings. From the meaning of the word, "extract" and "extract" have similar meanings, which can be understood as "select a part of the content to transcribe it", and "copy" can be understood as "make the same according to the original". It can be seen that excerpts, excerpts and copies have different meanings and cannot produce the effect of "making the same", and it cannot be considered that excerpts are essentially copies. The shareholders' excerpts from the accounting books do not violate the provisions of the Company Law, and Beiaikang's claim that "excerpts" are essentially "copies" cannot be established. Third, Article 20 of the Company Law stipulates that the shareholders of a company shall abide by the laws, administrative regulations and the articles of association of the company, exercise the rights of shareholders in accordance with the law, and shall not abuse the rights of shareholders to harm the interests of the company or other shareholders, and if the shareholders of the company abuse the rights of shareholders to cause losses to the company or other shareholders, they shall be liable for compensation in accordance with the law. Article 11 of the (IV) for interpretation of the Company Law stipulates that the disclosure of the company's trade secrets after shareholders exercise their right to know leads to damage to the legitimate interests of the company, and the disclosure of the company's trade secrets by accountants and lawyers who assist shareholders in consulting the company's documents and materials leads to damage to the legitimate interests of the company, and the people's court shall support the company's request for compensation for relevant losses. The above-mentioned laws and judicial interpretations have clearly stipulated that shareholders have the obligation to keep the company's secrets, as well as the remedies when the company's interests are damaged as a result. If Beiaikang Company believes that Dongfeng Company has leaked the company's trade secrets in the process of exercising shareholders' right to know, resulting in damage to the company's legitimate interests, it can provide relief in accordance with the law. [Case 3] Dispute between Lai Junwei and Lai Wanglong and Foshan Wuyecaoyun Service Co., Ltd. and Lai Xiaobo over Shareholders' Right to Know (Case No.:(2021) No. 28388 of Guangdong 0605 Minchu, Trial Court: Nanhai District People's Court of Foshan City) The court held that: regarding the way to exercise the shareholders' right to know... the two plaintiffs also claimed to make necessary excerpts and extracts when consulting the accounting books and accounting vouchers, as mentioned above, the accounting books and accounting vouchers should be limited to inspection, excluding copying, but the excerpts here are not equivalent to copying, and the excerpts are the auxiliary means for the shareholders to exercise the right to know and consult the accounting books and accounting vouchers, so the two plaintiffs can make necessary excerpts. Time and place for the exercise of (III) shareholders' right to know Regarding the timing of the exercise of the shareholders' right to know: based on the consideration of not affecting the operation of the company, in order to avoid endless and unlimited access to the company's documents by shareholders, the general court will respect the autonomy of the parties and make a judgment according to the timing of the exercise of the shareholders' right to know agreed upon by shareholders and the company. If the shareholders and the company disagree, the court will reasonably determine a fixed time frame, usually between 5 days (or working days) and 30 days (working days), within the company's daily business hours. Regarding the place of exercise of the shareholder's right to know: If the shareholder and the company can negotiate to determine the place, the court will generally confirm it in the judgment. If the shareholder and the company are unable to agree on the place of inspection, the court will generally consider the place of storage of the materials to determine the location of the company (e. g. domicile, actual place of business, actual office space, etc.) as the place of exercise of the shareholder's right to know. At the same time, considering the contradiction between shareholders and the company, and the impact of shareholders' exercise of the right to know on the company's daily operation, some judgments determine the place where the shareholders' right to know is exercised in the people's court. [Case 1] Dispute over Shareholders' Right to Know between Shanghai Fenbo Electronic Commerce Co., Ltd. and Liu Zhenmin (Case No.:(2022) Hu 01 Min Zhong No. 1491, Trial Court: Shanghai No.1 Intermediate People's Court) The court held that the first paragraph of Article 10 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "The people's court hears a case in which a shareholder requests to consult or copy the company's specific documents and materials, and supports the plaintiff's litigation request Yes, the time, place and specific documents of the company's specific documents and materials shall be clearly consulted or copied in the judgment". In order to protect Liu Zhenmin's right to know shareholders, according to the wishes of both parties, the court has determined the location at Beijing Yingke (Shanghai) Law Firm (XX Road, Jing 'an District, Shanghai). [Case 2] Li Shujun, Wu Xiang, Sun Jie, Wang Guoxing and Jiangsu Jiade Real Estate Development Co., Ltd. Shareholder's Right to Know Dispute (in Supreme People's Court Bulletin, No. 8, 2011, Case No.:(2009) Suzhong Min Er Zhong Zi No. 319, Trial Court: Suqian Intermediate People's Court, Jiangsu Province) The court held that: with regard to the time and place of inspection, the purpose and value of the company law to give shareholders the right to know is to ensure the full exercise of shareholders' rights, but the exercise of this right should also be carried out under the mechanism of balance of rights, that is, the efficiency of operation, business order and other corporate rights and interests have not adversely affected. Therefore, the four appellants should consult materials related to the matters they wish to know, not a comprehensive audit of the company's finances, so the inspection should be within the normal business hours of the company and not more than ten working days, and the convenient place for inspection should be in Jiade. (IV) professional institutions to assist in the exercise of the right to know The Supreme People's Court on the application<中华人民共和国公司法>Article 10, paragraph 2, of the (IV) on Certain Issues provides for allowing professional third parties to assist shareholders in exercising their right to information. But need to pay attention to the following matters: 1, should entrust a third party to assist in the exercise of the right to know as a clear claim. Otherwise, even if the court decides that the shareholders have the right to exercise the right to know, but because it is not clear in the effective judgment that "a third party may be entrusted to assist in the exercise of the right to know", the shareholders entrusted to a third party to assist in the exercise of the right to know may still be opposed by the company. 2. Auxiliary personnel shall be practitioners of intermediary institutions who have the obligation of confidentiality in accordance with the law or in accordance with the norms of practice. The Supreme People's Court on the application<中华人民共和国公司法>Article 10, paragraph 2, of the (IV) on Certain Issues limits auxiliary personnel to "in accordance with the law or</中华人民共和国公司法></中华人民共和国公司法></中华人民共和国公司法>

2022-10-28

Real estate perspective: the legal risk prevention of cultural relics protection in the process of land development.

Our country has thousands of years of heritage, and every city has its own historical precipitation. When the buried relics are unintentionally excavated in the process of land development, a series of legal problems also appear at the same time of human precious wealth. For example, in the stage of land transfer, how to avoid risks for possible underground buried objects, how to deal with the protection of cultural relics involved in the process of project construction, and how to safeguard the rights of project losses caused by cultural relics protection, etc. This paper will explore the relevant solutions to the legal problems related to the protection of cultural relics in the process of land development. Scope of Cultural Relics Protection and Relevant Provisions of the Ministry of 1. According to the relevant provisions of the the People's Republic of China Cultural Relics Protection Law, the cultural relics protected by the state mainly include the following types: 1. Ancient cultural sites, ancient tombs, ancient buildings, cave temples, stone carvings, and murals with historical, artistic, and scientific value; 2. Important modern historical sites, objects, and representative buildings that are related to major historical events, revolutionary movements or famous figures and have important commemorative, educational or historical value; 3. Precious works of art and arts and crafts in various eras in history; 4. Important documents and materials in various eras in history, as well as manuscripts and books with historical, artistic, and scientific value; 5. Reflecting various eras and ethnic groups in history Representative objects of social systems, social production, and social life. In addition, fossils of ancient vertebrates and ancient humans of scientific value are protected by the State as are cultural relics. In order to protect the buried cultural relics, relics and existing immovable cultural relics, the protection scope of cultural relics protection units and the concept of construction control zone are stipulated in the content of China's cultural relics protection law. Other construction projects or operations such as blasting, drilling and excavation are not allowed within the protection scope of cultural relics protection units; construction projects are carried out within the construction control zone of cultural relics protection units, the historical features and engineering design plans of cultural relics protection units shall be submitted to the urban and rural construction planning department for approval according to the level of cultural relics protection units and with the consent of the corresponding cultural relics administrative department. It can be seen that once the land to be developed is within the above two ranges, the developer needs a more complex and strict declaration process. In particular, large-scale capital construction projects and projects within the scope of cultural relics protection are more likely to have problems related to cultural relics protection, and the approval process is particularly strict. With the promulgation of the "Implementation Opinions of the General Office of Jinan Municipal People's Government on Promoting the Pre-work of Archaeological Investigation and Excavation of State-owned Construction Land" (Ji Zheng Zi [2020] No. 38) and the "Supplementary Opinions of Jinan Municipal People's Government on Promoting the Pre-work of Archaeological Investigation and Excavation of State-owned Construction Land" (Ji Zheng Zi [2021] No. 13), the regulations on the protection of cultural relics protection in Jinan City have changed from "Archaeological Post" Archaeological Post "Archaeology", the municipal natural resources and planning department shall provide an annual land supply plan to the municipal cultural relics administrative department before the end of March each year; for unplanned land supply, the subject of land maturation may submit applications for archaeological investigation and exploration at any time as needed, and the first-level cultural relics distribution area shall submit applications for archaeological exploration two months before land supply, 2. the third-level cultural relics distribution area shall submit applications for archaeological investigation and exploration one month before land supply. In view of the transfer of state-owned construction land, Jinan further defines the scope of land that should be subject to archaeological exploration, refines the subject of exploration responsibility, standardizes the process of land transfer in the reserve, and in the stage of land transfer, as far as possible to ensure that the transferred land has no cultural relics burden. 2. relevant cases and analysis Case 1:(2020) No. 52, Line 14, Sichuan Case Name: "Meishan Luhu Zhongcheng Real Estate Co., Ltd. and Meishan Natural Resources Bureau Administrative Expropriation Second Instance Administrative Judgment" Referee's Point of View: Regarding the question of whether the archaeological time of the land-related cultural relics from February 26, 2018 to June 30, 2018 should be deducted from the overdue time of the land transfer fee paid by the appellant Luhu Zhongcheng Company, the Court believes that, first of all, the delivery time of the land-related cultural relics in the case is January 2, 2018, and the time of the discovery of cultural relics in the land-related case is February 26, 2018, after the appellee Meishan Natural Resources Bureau has fulfilled the obligation of land delivery, the appellee Luhu Zhongcheng Company actually occupies the land and starts construction. The improper transaction risk of cultural relics should be borne by the appellee Meishan Natural Resources Bureau. Secondly, although the Land Transfer Contract signed by both parties does not stipulate the possible discovery of cultural relics on the land involved in the case, however, it has been made clear in the auction documents involving land that "if underground cultural relics are involved within the planning red line, the bidder shall handle the matter in accordance with the relevant provisions of the current cultural relics management, and the required expenses shall be borne by the bidder". The appellant Luhu Zhongcheng Company has read and agreed to the document before bidding for the land, and the agreement of the auction document shall be regarded as an integral part of the Land Transfer Contract. The agreement clarifies the handling methods and cost burdens of underground cultural relics that may be involved in the land involved in the case. From the perspective of the agreement, both parties to the appeal have common foresight on the event that the land involved in the case does not rule out the existence of underground cultural relics. The discovery of cultural relics on the land involved in the case is not an unforeseeable, unavoidable and insurmountable force majeure stipulated in Article 117 of the the People's Republic of China Contract Law, therefore, it cannot be used as a legal cause for the appellant Luhu Zhongcheng Company to defend against the exemption from the payment of liquidated damages. The commercial risk of delayed construction of the land involved due to the discovery of underground cultural relics shall be borne by the appellant Luhu Zhongcheng Company. In addition, the appellant Luhu Zhongcheng Company stated in the appeal that some local governments have made provisions to allow deferred payment of newly discovered cultural relics during the transfer of state-owned construction land, so the case should also be determined that its deferred payment is not a breach of contract. In this regard, the court believes that, on the one hand, the normative documents of the relevant local government are not the reference basis for the administrative litigation in this case. On the other hand, the local government also has no clear regulations on how to deal with the newly discovered cultural relics when the state-owned construction land is sold. The reason for the argument cannot be established. To sum up, the archaeological time of the land-related cultural relics during the period from February 26, 2018 to June 30, 2018 should not be deducted from the overdue time when the appellant Luhu Zhongcheng Company paid the land transfer fee. In this case, the developer does not rule out the existence of underground cultural relics on the land involved in the case, and the land transfer department has fulfilled its obligations. The auction contract also deals with the handling of underground cultural relics that may be involved in the land involved in the case and the cost burden. Made clear. Therefore, developers can only bear risks and losses independently. Case 2:(2020) Lu 01 Min Zhong No. 9613 Case name: "Jinan Lixia District Housing and Urban Construction Bureau and Jinan Shimao Real Estate Co., Ltd. Property Rights Protection Dispute Second Instance Judgment" Referee's point of view: The Jinjia Courtyard is a provincial-level cultural relics protection unit. There is a protection scope and a construction control scope outside the courtyard. Even outside the red line of land stated by Shimao Real Estate Company, it should be protected and constructed in accordance with the requirements of cultural relics protection. On the issue of restoring the outer landscape of the Golden Family Compound. In the second instance, Lixia Housing and Construction Bureau submitted to the court the "Statement on the Paving Cost of the Peripheral Landscape of Jinjia Compound" issued by Shimao Real Estate Company to Lixia Housing and Construction Bureau, with the peripheral landscape effect map and scope map, confirming the peripheral landscape of Jinjia Compound before the dispute occurred. Shimao Real Estate Company had no objection to the authenticity of the evidence, arguing that the evidence could not prove that the peripheral landscape was demolished. After examination, the court believes that the above evidence is issued by Shimao Real Estate Company itself, and its authenticity can be confirmed. The attached drawings can also confirm the situation of the peripheral landscape of Jinjia Compound at that time. Now Shimao Real Estate Company should have the obligation to restore the peripheral landscape due to the destruction of its peripheral landscape caused by the development of Shimao Real Estate Company around Jinjia Compound. Therefore, the court supports the lawsuit request of the Bureau of Housing and Construction to restore the peripheral landscape of the Jinjia compound. In this case, the construction unit operates in the construction control zone of the cultural relics protection unit, and shall not damage the historical features of the cultural relics protection unit in accordance with the law, and the construction unit's behavior has destroyed the cultural relics, it shall bear the obligation of restoration. Case 3:(2018) Zhejiang Bank No. 4 Case Name: Huzhou Delong Real Estate Co., Ltd., Huzhou Natural Resources and Planning Bureau, Huzhou Taihu Tourism Resort Management Committee and other retrial administrative rulings Judging point of view: in this case, the land involved in the case is a dispute over the change of planning conditions caused by the protection of cultural relics. The respondent, as the land transferor and the third party as the interested party, has the regulatory basis of the Ministry of land and resources to resolve the land dispute by replacing the land with the applicant. For example, the determination of "replacing land to make up for the price difference", the selection of replacement land, the evaluation of land price, and the review of legality are made through due administrative procedures, and do not violate the mandatory provisions of current laws, regulations and rules. The historical disputes in this case are conducive to balancing the interests of all parties, resolving disputes in substance, and reducing administrative costs. During the retrial of this case, the parties reached an intentional settlement plan of "replacing land to make up for the price difference", and now the parties are still striving for settlement. In this case, the respondent, as the land transferor involved in the case, optimized and improved the administrative procedure plan for resolving disputes by replacing land to make up for the price difference, so that the Huzhou Municipal People's Government can study and make a decision in a timely manner, which falls within the scope of the administrative duties of the respondent. To sum up, the facts of the original 1. 2 judgment in this case are unclear and the main evidence is insufficient. The status of the land involved in the transfer also needs to be further ascertained. In this case, the case is complicated, and the first and second instance also made partial compensation for the expenses paid by the construction unit. During the retrial, the parties reached an intention settlement plan of "replacing land to make up for the price difference", and the parties are still striving for settlement. Accordingly, if the original plan cannot be realized due to the protection of cultural relics, the construction unit can make compensation requests such as compensation or land replacement. Case 4:(2020) No. 15058 at the beginning of the Republic of Shaanxi 0116 Name of Case: Civil First Instance Civil Judgment of Construction Contract Disputes of Shaanxi Farnsen Construction Engineering Co., Ltd. and Shaanxi Yellow River Construction Engineering Co., Ltd. Referee's point of view: regarding the plaintiff's request to pay the management fee for supporting temporary construction facilities, construction pre-purchase materials, engineering tools and materials and auxiliary fees, construction site protection measures and other expenses, the evidence provided by both parties proves that the reason for the plaintiff's withdrawal from the construction site is due to cultural relic survey factors, but more importantly, the Yellow River Company unilaterally terminated the contractual relationship with Farnsen Company, taking into account the fact that the plaintiff is contracted labor and materials, therefore, the above-mentioned expenses caused by this shall be paid by Farnsen Company and Yellow River Company jointly to the plaintiff as appropriate. In this case, after the cultural relics protection work occurred in the construction, the party cooperating in the development unilaterally terminated the contract, but the cultural relics protection work is not the main reason for the termination of the contract, nor is it a legal cause of termination, so the Yellow River Company still has to bear the responsibility. 3. Suggestions on Risk Prevention Risk aversion in the stage of (I) land transfer. 1. According to the current relevant laws and regulations of our country, in the stage of land transfer, developers are basically unable to carry out project development within the protection scope of cultural relics protection units, but the development of construction control zones can be obtained as long as they meet the approval process. When developers carry out land development in the construction control zone, they must remember that the historical features of the cultural relics protection unit must not be damaged during the development process; the development engineering design plan should be modified under the guidance of the corresponding level of cultural relics administrative department, and reported to the construction after approval Approved by the planning department. 2. The developer can negotiate and agree on the possible discovery of cultural relics on the land in the land transfer contract, so as to minimize its own risk. 3. The developer can first investigate whether the land has been explored for cultural relics, especially check whether it is within the scope of cultural relics protection against the drawings. At the same time, if the land is used for large-scale infrastructure projects, cultural relics exploration must be carried out first according to law. 4. For immovable cultural relics, all costs incurred in the protection, relocation and demolition of the original site shall be included in the construction project budget by the developer, that is, the developer shall bear the cost. Therefore, from the perspective of cost saving, developers should try to avoid the surrounding land with immovable cultural relics when selecting sites. Treatment of Cultural Relics Protection in the Process of (II) Project Construction 1. Cultural relics belong to state property. When cultural relics are found in land development, they must be reported to the relevant departments in time. They must not be concealed in order to catch up with the construction period, or excavated privately in order to occupy cultural relics, otherwise they may face serious consequences of criminal punishment. 2. Developers or investors need to pay attention to the fact that the extension of the project caused by cultural relic exploration is not a legal condition for the termination of the contract. It is not allowed to withdraw from the development simply because the project progress is delayed due to cultural relic excavation and other work. When this happens, it should be handled in accordance with the contract. It must not withdraw directly, resulting in a huge amount of compensation for breach of contract. 3. Developers need to pay attention to the protection of surrounding cultural relics during the construction phase to avoid damage to cultural relics due to development. When damage and other effects are accidentally caused during the construction process, they must stop work immediately, communicate with the cultural relics protection department as soon as possible, and timely Stop losses to avoid causing greater damage to cultural relics and causing developers to bear more serious responsibilities. 5. When the construction of a real estate project is delayed due to the protection of cultural relics, the developer should contact the buyer in time, explain the situation and issue the cultural relics protection materials and relevant laws and regulations issued by the cultural relics department, so as to exempt itself from responsibility. At the same time, the request of the buyer should be taken seriously and actively negotiated and resolved, so as to avoid contradictions and conflicts. (III) Rights Protection Ideas of Project Losses Caused by Cultural Relics Protection 1. my country stipulates that the land sold by the land transfer department should be "net land", but the net land requirements do not stipulate that archaeological investigation and exploration of the land must be carried out. Therefore, after the developer obtains the transferred land, in the process of development and construction In China, there is still the possibility of excavating cultural relics. If the subject of responsibility for cultural relic exploration can be clarified, the developer can require the relevant responsible subject to bear the liability for compensation when such problems occur. 2. In accordance with the provisions of Articles 2 and 8 of the Measures for the Disposal of Idle Land, if the land is idle due to military control, cultural relics protection, etc., the municipal and county land and resources authorities shall negotiate with the owner of the right to use state-owned construction land, Choose to replace the land. Accordingly, during the period of land development, when the project is delayed or even unable to proceed due to the protection of cultural relics, the developer can prepare the corresponding materials and apply to the government for land replacement in accordance with the law. 3. According to Article 14 of the interpretation of China's Administrative Procedure Law, if the defendant unilaterally changes or terminates the agreement due to public interest or other legal reasons, causing losses to the plaintiff, the defendant shall be judged to compensate. Therefore, the developer may apply for compensation accordingly. However, at this stage, my country does not have a unified standard for compensation for losses caused by cultural relics protection, and there are no relevant laws and regulations. Therefore, developers can refer to the relevant when considering recovery.

2022-10-18

Viewpoint... Analysis of the new breakthrough in the circulation of state-owned assets-from the State-owned Assets Supervision and Administration Commission No. 39.

In order to meet the practical needs of state-owned capital layout optimization, structural adjustment and professional reorganization, the State-owned Assets Supervision and Administration Commission of the State Council issued the "Notice on Matters Related to the Transaction and Circulation of State-owned Assets of Enterprises" (State-owned Assets Regulation [2022] No. 39) (hereinafter referred to as "Circular 39"), which made new regulations on the procedures and supervision of the transaction and circulation of state-owned assets. Document No. 39 further clarifies two directions for the circulation of state-owned assets transactions, in short, strict adherence to the "red line" and reasonable "decentralization". First, strictly observe the red line: strictly prevent the loss of state-owned assets and continue to increase supervision, especially to maintain the control position of state-owned assets in important industries and key areas; second, reasonable decentralization: encourage the transfer of state-owned assets transactions, which is reflected in two aspects: On the one hand, through the sinking of approval authority and further expanding the scope of application of relevant rules of Order 32, the system is more suitable for business practice and helps to play the role of capital leverage, maintain the preservation and appreciation of state-owned assets to further meet the needs of the system for the transfer of state-owned assets (refer to the figure below). On the other hand, Circular 39 has created new provisions to supplement the unspecified parts of the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (hereinafter referred to as "Order 32"). Some scholars believe that Act 39 is the first amendment to Order 32 and can be regarded as the first amendment to Order 32. The author believes that from the perspective of effectiveness, Circular 39, as a normative document of ministries and commissions, cannot surpass Decree 32 as a ministerial regulation. Circular 39 is to implement the basic principles and spirit of Decree 32. The extension and expansion of its content aims to further improve the layout of state-owned enterprises, increase the integration rate of resources, and face the actual problems of state-owned assets to give enterprises greater decision-making initiative. New situation of 1. non-public agreement transfer 1, non-public agreement transfer scope of application expanded. As shown in the figure above, No. 39 expands the scope of application of the non-public agreement transfer method. Decree No. 32 first established the principle that state-owned assets transactions are mainly public listing and transfer, supplemented by non-public agreement transfer, and provided for the application of public listing and non-public agreement transfer, approval agencies, pricing methods and other matters. As an exception to the principle of public listing transfer, the path of non-public agreement transfer is necessary for some state-owned property rights transactions that are not aimed at obtaining the highest income. As expanded by No. 39, the applicable circumstances for the transfer of non-public agreements in the circulation of state-owned transactions can be divided into the following three categories: (1) Transfer path of non-public agreements under Decree 32: Restructuring of state-owned enterprises in major areas Article 31, paragraph 1, of Decree No. 32 "involves the reorganization and integration of enterprises in important industries and key fields that are related to national security and the lifeline of the national economy. There are special requirements for the transferee, and the property rights of the enterprise need to be transferred between state-owned and state-owned holding enterprises. With the approval of the state-owned assets regulatory agency, the transfer method can be adopted by non-public agreement". Regarding what are "important industries" and "key areas", the Q &amp; A selection on the SASAC website on August 28, 2018 clarified 9 industries and 9 areas: lifeline industries, including military and national defense technology, power grid power, petroleum and petrochemical, 9 industries including telecommunications, coal, civil aviation, shipping, finance, and culture; key areas, including major equipment manufacturing, automobiles, electronic information, construction, steel, non-ferrous metals, chemical industry, survey and design, science and technology 9 fields. The above is intended to provide a channel for directional transactions for the reorganization and integration of property rights of state-owned enterprises in key industries and fields. However, since this situation requires special approval by the SASAC, the scope of the project to which it is applicable is relatively small. (2) Non-public agreement transfer path II under Decree 32: reorganization and integration within the same group. Article 31, paragraph 2, of Decree No. 32, "Where property rights are transferred between the same state-funded enterprise and its holding enterprises at all levels or enterprises under actual control as a result of the implementation of internal reorganization and integration, the state-funded enterprise may adopt a non-public agreement transfer after deliberation and decision-making." That is, the reorganization of property rights within the group. Because the approval authority is a state-funded enterprise rather than a state-owned regulatory authority, and allows the audited net assets as the basis for valuation (Article 32 of Decree 32), the difficulty of approval is greatly reduced, which is more common in the case of non-public agreement transfer. From the provisions of Order 32, the scope of application of non-public agreement transfer is very limited. With the deepening of the reform of state-owned enterprises, the reorganization and integration between state-owned enterprises led by the government or SASAC is becoming more and more frequent, for the transfer of property rights of such enterprises, Order 32 does not provide for the application of non-public agreement transfer, No. 39 has been supplemented and clarified, as described below. (3) No. 39 new non-public agreement transfer path: cross-group corporate restructuring and integration. Article 1 of document No. 39. That is, "involving major matters such as the optimization and structural adjustment of state-owned capital led by the government or state-owned assets supervision and management institutions, as well as professional reorganization, the transfer of enterprise property rights between different state-funded enterprises and their holding enterprises, and the transferee If there are special requirements, it can be carried out by agreement". The applicable conditions are: the optimized layout and structural adjustment of state-owned assets led by the government, and the professional reorganization, and both parties to the transaction are state-funded enterprises or their holding enterprises, which have special requirements for the transferee. This is a new non-public agreement transfer, reflecting the response of the state-owned regulatory authorities to the real needs of state-owned capital layout and cross-group restructuring. With the change of state-owned assets supervision from state-owned assets transaction management to state-owned capital management, state-owned property rights need to flow at the level of enterprises funded by the same state, that is, "the layout optimization and structural adjustment of state-owned capital". To this end, No. 39 stipulates that such matters are transferable by non-public agreement, which provides a policy basis for the relevant transfer activities and dispels the policy doubts about the application of non-public agreement at the implementation level, thus speeding up the efficiency of the transfer of state capital in the whole field and industry and reducing the cost of the transfer of state capital. 2, break through the non-public agreement transfer pricing method. The pricing principle of Order 32 for non-public agreement transfers is that, in general, it is not lower than the approved or filed assessment results, and for internal restructuring, it may be not lower than the assessed or audited net assets. Article 32 of Decree No. 32 stipulates that the transfer of enterprise property rights by non-public agreement shall not be lower than the approved or recorded assessment results. After performing the decision-making procedures in accordance with the the People's Republic of China Company Law and the articles of association, the transfer price can be determined on the basis of the net asset value confirmed in the asset evaluation report or the latest audit report, and shall not be lower than the assessed or audited net asset value: (1) The same state-funded enterprise implements internal reorganization and integration, and the transferor and transferee are the state-funded enterprise and its directly or indirectly wholly-owned subsidiaries; (II) the same state-owned holding enterprise or state-owned actual control enterprise internal reorganization and integration, the transferor and the transferee are the state-owned holding enterprise or state-owned actual control enterprise and its directly or indirectly wholly-owned subsidiaries. Article 4 of document No. 39 stipulates that if the property rights of an enterprise are transferred by means of a non-public agreement, and the transferor and transferee are wholly state-owned or wholly-owned enterprises, after performing the decision-making procedures in accordance with the the People's Republic of China Company Law and the articles of association of the enterprise, the transfer price may be determined on the basis of the net asset value confirmed in the asset appraisal report or the latest audit report. Document No. 39 breaks through the original pricing restrictions from two levels: First, it breaks through the shackles of the same state-funded enterprise. As long as the transferor and the transferee are both wholly state-owned or wholly-owned enterprises, even if they belong to different state-funded enterprises, The transfer price of a non-public agreement can be determined based on the net asset value confirmed in the latest audit report in accordance with Order No. 32, reduce the cost of cross-group, cross-provincial, cross-level state-owned property rights transaction activities. Second, compared with Article 32 of Decree No. 32, No. 39 only retains that "the transfer price can be determined on the basis of the net asset value confirmed in the asset appraisal report or the latest audit report", which means that the transfer of property rights between pure state-owned enterprises will no longer be subject to compulsory pricing. In this regard, the new rules are a major breakthrough in the way non-public agreement transfer pricing. The State-owned Assets Supervision and Administration Commission of the State Council directly faces the reality of changes in the price of property rights, giving enterprises greater decision-making initiative. A New Breakthrough in the Mode of 2. Property Rights Transfer -- Simplifying Administration and Decentralizing Power 1, the transfer of state-owned control is prohibited in major areas ---. Article 7 of Decree No. 32 stipulates that the state-owned regulatory agency shall be responsible for examining the transfer of property rights of state-funded enterprises. Among them, if the state no longer owns the controlling interest in the invested enterprise due to the transfer of property rights, it must be reported by the state-owned regulatory agency to the people's government at the same level for approval. It can be seen that Decree No. 32 does not explicitly limit the transfer of property rights of such enterprises leading to the transfer of real control of state-owned assets, but only sets restrictions on the approval procedures, stipulating that such cases should be reported to the people's government at the same level for approval by the state-owned regulatory agency. Document No. 39 has clear prohibitive requirements for the transfer of control rights of enterprises in important industries and key fields. The first half of Article 2 of Document No. 39 stipulates that the main business is in important industries and key fields that are related to national security and the lifeline of the national economy. Sub-enterprises that mainly undertake major special tasks shall not lose their state-owned capital holding status due to the transfer of property rights and capital increase of enterprises. Article 9 of document No. 39 stipulates that if the transfer of property rights and the capital increase of the enterprise cause the state-funded enterprise and its subsidiaries to lose the actual control right of the target enterprise, the target enterprise shall not continue to use the intangible assets such as the name, business qualification and franchise right of the state-funded enterprise and its subsidiaries after the transaction is completed, and shall not continue to carry out business activities in the name of the subsidiary enterprise of the state-funded enterprise. The above-mentioned requirements shall be clarified as trading conditions in the information disclosure, and corresponding agreements shall be made in the transaction contract for industrial and commercial changes, name changes and other arrangements. Decree No. 32 did not clarify whether intangible assets such as the original enterprise name, qualification and franchise can continue to be used when the transfer of enterprise property rights and the capital increase of the enterprise cause the state-funded enterprise and its subsidiaries to lose the actual control of the target enterprise. Decree No. 39 made it clear that the enterprise shall not continue to carry out business activities in the name of the state-funded enterprise subsidiaries under such circumstances. Information disclosure shall be used as transaction conditions and corresponding arrangements for industrial and industrial and industrial and commercial changes. 2. Approval authority sinking ----- release According to Decree No. 32, the transfer of property rights in important industries and key areas must be submitted by state-funded enterprises to the state-owned regulatory authorities at the same level for approval, but there is no distinction between internal and external transfers. Article 8 of Decree No. 32 stipulates that a state-funded enterprise shall formulate a management system for the transfer of property rights of its subsidiaries and determine the administrative authority for examination and approval. Among them, the transfer of property rights of sub-enterprises whose main business is in important industries and key areas related to national security and the lifeline of the national economy, and which mainly undertake major special tasks, shall be submitted by state-funded enterprises to the state-owned assets regulatory authorities at the same level for approval. No. 39 provides that the internal reorganization and integration of state-funded enterprises in important industries and key areas may be approved by state-funded enterprises. The second half of No. 39 stipulates that when such enterprises are involved in the internal reorganization and integration of state-funded enterprises, the following circumstances may be examined and approved by the state-funded enterprises: The property rights of the (I) enterprise are transferred between the state-funded enterprise and its holding subsidiary. (II) state-funded enterprises directly or designate their holding subsidiaries to participate in the capital increase. The original shareholders of the (III) enterprise increase their capital in the same proportion. Other cases shall be reported by the state-funded enterprise to the state-owned assets supervision and administration institution at the same level for approval. In accordance with the first half of Article 2 of Article 39, it is clear that the transfer of enterprise assets shall not lead to the loss of control of state-owned capital in the circumstances stipulated in Article 8, paragraph 1, of Decree 32. On this basis, the second half of Article 2 of No. 39 devolves the approval authority for some transactions to state-funded enterprises, because none of these three transactions and capital increases will cause state-owned capital to lose its controlling position. This also reflects from the side that the government attaches great importance to the transaction and circulation of state-owned assets of enterprises. After preventing the risk of state-owned capital losing its controlling rights, it clearly lists the transactions and capital increase behaviors that are widespread in practice and will not lose the controlling status of state-owned capital, and further The decentralization of approval authority reflects the government's concept and determination of "streamlining administration and delegating power. In short, the changes brought about by the above provisions of Article 39 can be understood at four levels: 1. Strictly abide by the bottom line of Decree No. 32: the transfer or capital increase of the state's controlling interest in state-funded enterprises (as defined by Decree No. 32, that is, wholly state-owned or state-controlled enterprises entrusted by the government to perform the duties of investors by the state-owned assets supervision and management institution) must be submitted by the state-owned assets supervision The agency reports to the people's government at the same level for approval. 2, the "red line": the state-funded enterprises shall not be transferred or increased, lose the main business in the lifeblood of the industry and key areas of the subsidiary enterprises, No. 39 clear and unmistakable clear position and point of view to deal with the issue, clear "red line". 3. Reasonable decentralization: a breakthrough in Article 8 of Decree No. 32, reasonable decentralization, by the state-funded enterprises to approve the main business in the lifeblood of the industry and key areas of the transfer of property rights within the enterprise group or capital increase, that is, the approval authority does not need to be raised by one level. 4. Other situations: If a state-funded enterprise loses its controlling rights to other sub-enterprises and does not involve the transfer or capital increase of the controlling rights of sub-enterprises whose main business is in the lifeline industry and key areas, it is not prohibited across the board. For those who meet the conditions and policy guidance, can play the role of capital leverage and help maintain and increase the value of state-owned capital, they can still be reported to the state-owned assets regulatory agency at the same level for approval. New Breakthrough in Free Transfer of State-owned Property Rights in 3. Article 5 of document No. 39 stipulates: "the internal reorganization and integration of state-owned holding and actual control enterprises, with the approval of state-funded enterprises, between the state-owned holding or actual control enterprise and its direct or indirect wholly-owned subsidiary enterprises, or between its direct and indirect wholly-owned subsidiary enterprises, the property rights of the enterprise can be transferred according to the relevant provisions of the free transfer management of state-owned property rights." This article is intended to provide a new way for the internal reorganization and integration of state-owned holding and actual control enterprises-free transfer. Compared to Order 32, it only provides a way to transfer a non-public agreement in this case. Because the free transfer of property rights of state-owned enterprises is a special form of the transfer of state-owned assets, which is different from the normal transaction behavior based on the payment of reasonable consideration, the free transfer does not fall within the scope of state-owned asset transactions regulated by the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (Order No. 32 of the State-owned Assets Supervision and Administration Commission of the State Council and the Ministry of Finance), and does not apply to Order No. 32. In 2005, the State-owned Assets Supervision and Administration Commission issued the "Interim Measures for the Administration of the Free Transfer of State-owned Property Rights of Enterprises" (Guo Zi Fa Property Rights [2005] No. 239). Article 2 stipulates: The free transfer of state-owned property rights of enterprises mentioned in these Measures refers to the free transfer of state-owned property rights of enterprises in government agencies, institutions, wholly state-owned enterprises, and wholly state-owned companies. No. 39 expands the scope of free transfer of enterprise property rights, and extends the scope of application of free transfer to the internal reorganization and integration of state-controlled and actually controlled enterprises under specific circumstances. 39.

2022-10-17

Viewpoint. Interpretation of the relevant content of the Civil Enforcement Law (Draft) and the realization of the bank's own claims.

Foreword On June 21, 2022, the the People's Republic of China Civil Enforcement Law (Draft) (hereinafter referred to as the "Draft") was submitted to the Standing Committee of the National People's Congress for deliberation for the first time. On June 24, the draft was further open to the public for comments. The draft not only comprehensively sorts out the current implementation norms to make them more systematic, but also modifies the problems existing in the current norms and re-formulates new regulations on the problems that cannot be solved by the current norms. some of these provisions help banks better realize their creditor's rights. Contents and Interpretation of 2. Draft 1. Solving negative enforcement problems with enforcement objections "Draft" original text: Article 32 If the parties and interested parties believe that the people's court should perform the enforcement act but have not implemented it, they may submit a written application to the enforcement court to request the enforcement act before the end of the enforcement procedure. The people's court shall examine and handle the application within seven days after receiving the application for enforcement. If the reason is established, the execution shall begin; If the reason is not established, the applicant shall be notified in writing. After the people's court receives the application for enforcement, if the situation is urgent, it shall examine and deal with it within 48 hours; if the reason is established, it shall immediately start enforcement. If the applicant is not satisfied with the people's court's failure to review and handle the matter within the time limit or the notice made in accordance with the second paragraph of this article, he may file a written objection in accordance with the provisions of Article 84 of this law. Article 34 Where a people's court violates the provisions of this Law and causes losses to citizens, legal persons or unincorporated organizations, it shall pay compensation according to law. Interpretation: Solving the problem of negative enforcement through the enforcement objection system is one of the highlights of this "Draft. In addition, Article 174 of the "Draft" stipulates that "the people's court shall, after receiving the execution payment for the specific execution target, issue it to the applicant for execution in a timely manner", and Article 10 of the "Provisions of the Supreme People's Court on the Administration of Execution of Cash and Property" "The execution personnel shall, within 30 days from the date of receiving the notice of receipt of the execution payment from the financial department, complete the accounting of the execution funds, the settlement of the execution expenses, the notification of the applicant to receive and the distribution of the execution funds." The provisions of the law shall bear the corresponding legal consequences if the enforcement judge intentionally delays the execution, resulting in the reduction of compensation to the bankruptcy property. 2, clear lawyer investigation order system. The original text of the draft: Article 52 if the people's court is unable to inquire about a certain property information through the network information platform, and the applicant for enforcement cannot objectively obtain it by himself through entrusting a lawyer, he may entrust a lawyer to apply to the people's court for an investigation order. If, after examination, the people's court deems it really necessary, it may grant an investigation order to it. The investigation order is issued by the head of the executing agency. The investigation order shall contain the name of the lawyer, the number of the practice certificate, the practice institution, the name or name of the party, the case number, the specific investigation matters and the validity period. Where a lawyer conducts an investigation with an investigation order, the organization or individual concerned shall provide assistance. Refusal to assist, in accordance with the provisions of Article 75 of this Law bear the corresponding responsibility. If a lawyer abuses the investigation order by conducting an investigation beyond the scope of the investigation order, using the investigation order or the evidence obtained in a way contrary to public order and good customs, the people's court shall order it to return it, and may punish it with reference to the provisions of Article 62 of this law. Interpretation: Finding the debtor's property is one of the most important tasks of creditors in enforcement proceedings. Lawyers subjectively want to find more property of the debtor, but objectively do not have the power to check; the court has the power to check, but the court objectively does not have enough staff and time to check the contradictory situation. Regarding the lawyer investigation order, the current regulations do not stipulate that the higher people's courts in some areas have issued relevant judicial policies. There are currently two problems: First, there are no relevant regulations in individual areas, and creditors cannot apply for a lawyer's investigation order in these places. Second, in areas with relevant regulations, although creditors can apply for a lawyer's investigation order by entrusting a lawyer, due to the low level of effectiveness of the relevant regulations, the cooperation of the relevant departments is not too high, and the lawyer's investigation order cannot be fully effective. Article 52 of the draft stipulates the lawyer's investigation order in the form of law. At the same time, article 72 of the draft also specifically provides for penalties for organizations and individuals who fail to perform their obligations of assistance. 3. Modification of the property reporting system "Draft" original text: Article 46 If the people's court orders the person subject to execution to report property, it shall issue a property reporting order. Upon receipt of the property reporting order, the person subject to execution shall report in person on the specified date. If it is really difficult to report on the same day, it may apply to the people's court to change the date. Article 49 The people's court shall establish a database of the property reported by the person subjected to execution to register and store the contents of the report. With the permission of the people's court, the person applying for enforcement may inquire about the property and relevant information of the person subject to enforcement through the database. Interpretation: Banks should respond to this change and enrich the content of the non-performing loan management ledger in a timely manner. One is to use the deterrent power of the people's court to force the debtor to "show up" and make a good reminder. When the people's court notifies the debtor to report the property, it often notifies the creditor at the same time. On the other hand, the bank, as the enforcement applicant, can apply for the use of the property information that the person subject to execution has reported. 4, the provisions of the search for people to find the public security organs in the assistance obligations. Article 61 If the people's court decides to summon by arrest, it may notify the public security organ to assist in finding and controlling the detained person. Article 64 If a people's court decides to detain, it may notify the public security organ to assist in locating and controlling the detainee. Article 138 A people's court may notify relevant organizations to assist in locating or controlling motor vehicles. If the relevant organization discovers a motor vehicle when implementing road traffic safety management and other acts, it shall promptly notify the people's court and assist the people's court in controlling it in an appropriate manner. Interpretation: The enforcement measures of the court's enforcement agencies are very limited. In the investigation of people (summoning, detention) and searching for things (searching for motor vehicles), the enforcement agencies often need the assistance of the public security organs. Article 15, paragraph 2, and Article 16 of the current "Property Investigation Regulations" stipulate the obligation of public security to assist (the "relevant units" in the law should mainly refer to the public security organs), but the operation effect of the relevant provisions in practice is not ideal. In this regard, article 61, paragraph 3, article 64, paragraph 3, and article 138 of the draft stipulate the obligation of public security to assist in the form of law. In addition, Article 75 of the draft also stipulates the legal consequences of the public security organ's failure to perform the obligation of assistance. 5, modify the conditions for the transfer of the execution case to bankruptcy. Original text of the draft: Article 82 in the execution of monetary claims, if the person subject to execution meets the circumstances specified in Article 80 of this Law and the circumstances of debt liquidation stipulated in the bankruptcy law, the people's court shall rule to terminate the execution procedure and transfer the relevant materials of the execution case to the people's court of the place where the person subject to execution is located. The people's court of the place where the person subject to enforcement is located shall review it within 30 days from the date of receiving the relevant materials of the enforcement case, and shall generally rule to accept the bankruptcy application; if it is not accepted under special circumstances, it shall return the relevant case materials to the enforcement court and explain the reasons in writing. Interpretation: Articles 511 and 512 of the Judicial Interpretation of the Civil Procedure Law stipulate that when the person subject to execution has bankruptcy, if one of the persons applying for execution or the person subject to execution agrees, the execution court shall transfer the relevant materials of the execution case to the people's court of the place where the person subject to execution is located, and it shall decide whether to declare the person subject to execution bankrupt. Obviously, in the current norms, the bankruptcy proceedings of the executed person are initiated on the application of the parties. In response, the draft revised it to start in accordance with the authority of the court. Specifically, Article 82 of the draft stipulates that if the person subject to execution has bankruptcy, the court shall transfer the relevant materials of the execution case to the people's court where the person subject to execution is located, and the court shall generally decide to accept the bankruptcy application. Such a modification may help to solve the problem of unfair payment of creditors, but at the same time, it may also excessively infringe the right of the parties to dispose of them. Whether the Civil Enforcement Act will eventually be amended may need further argumentation. 6, the scope of the executive staff and the distribution of power issues. The original text of the draft: Article 10 the executive body of the people's court shall be composed of judges, executors, judicial police and other personnel. Judges are responsible for handling all types of enforcement cases. The executive officer is responsible for handling enforcement cases, except for major matters that should be handled by judges in accordance with the law, such as detention decisions and fine decisions. The judicial police, under the command of judges and executors, participate in the implementation of the implementation. Persons handling enforcement cases shall not participate in the examination of relevant enforcement objections, reconsideration, outsider objections and other cases. The appointment, removal and management of the executive shall be carried out in accordance with the relevant provisions of the State. Interpretation: This article breaks down the rumors that the reform of my country's enforcement system may follow the example of the United States and other Western countries to separate the enforcement agency from the court. The enforcement power still belongs to one of the internal departments of the court, but the post of "executive officer" is added. The executive does not have the status of a judge and can only engage in the act of execution. 7, the implementation of the basis is not clear dispute correction issues. The original text of the draft: Article 14 shall be based on a clear subject of rights and obligations and the content of payment. If the basis of enforcement is not clear about the subject of rights and obligations or the content of payment, the enforcement court may require the making organ or institution to clarify by way of explanation, correction of ruling, supplementary judgment, etc. If it cannot be made clear through the above-mentioned means, the parties may apply for enforcement after obtaining a new basis for enforcement through litigation, arbitration, etc. Interpretation: This provision has clear practical guiding significance, that is, in practice, because the meaning of various effective legal documents is unclear and the enforceability is poor, the enforcement judge cannot directly enforce the legal documents, and it is often in a dilemma. Therefore, the applicant and the person subject to execution cannot reach an agreement on the completion of the execution, which causes the case to be delayed for a long time. At this time, the court may require the issuing institution to explain, correct or make up for it by means of supplementary judgment, which can be understood as in order to improve the efficiency of enforcement. 8. Issues relating to the amount of fines and the duration of detention The original text of the "Draft": Article 63 The amount of fines imposed on individuals shall be less than RMB 100,000; the amount of fines imposed on organizations shall be RMB 50,000 to RMB 1 million. The term of detention shall be not more than fifteen days. Interpretation: it is worth noting that for malicious evasion of execution, the draft increases the maximum fine limit. In view of the situation that the person subject to execution refuses to report property and continuously refuses to perform irreplaceable acts, he can be detained for many times, with a cumulative total of no more than six months, which has reached the minimum period of six months in prison. 9. Issues related to re-seizure and transfer of disposal rights The original text of the draft: article 110 real estate that has been sealed up may be sealed up again. The people's court that seals up first may, in accordance with the law, take measures such as price change and compulsory management of the seized real estate. The people's court that is sealed up later shall, after the seizure, promptly inform the person applying for enforcement that it may apply for distribution to the people's court that is the first to seal up or other people's court that has the power to dispose of it. If the people's court that was first seized fails to initiate the procedure of determining the reference price of the real estate within three months after the seizure, the people's court that was later seized may consult with the people's court that was first seized to transfer the right of disposal. Interpretation: this provision has a strong guiding significance in the judicial disposal of property, and provides an important basis for avoiding the abuse of the right of first seal. In order to accurately understand the provision, we can compare the reply of the Supreme people's Court on issues related to the first seizure of the court and the priority creditor's rights enforcement court to dispose of the sealed-up property. The first article of the reply is clear: "in the process of execution, the court that first seals up, detains or freezes (hereinafter referred to as" seizure ") shall be responsible for disposing of the seized property. However, if the creditor's rights that have entered the execution procedures of other courts have a superior security right and priority (the creditor's rights are hereinafter referred to as priority creditor's rights) to the sealed-up property, and the first sealed-up court has not issued an auction announcement or entered into the sale procedure for the sealed-up property, the priority creditor's rights enforcement court may request that the sealed-up property be transferred for execution." However, the reply is only aimed at cases of waiting for seizure with priority of compensation, and does not provide for the transfer of ordinary creditor's rights. In order to prevent abuse of the right of first seal, the Draft stipulates that ordinary waiting for seizure shall be transferred for disposal, and the "negative standby time" of the first seal shall be changed from 60 days to three months.

2022-10-13