Minerals Legal Perspective | Personality Issues of Legal Due Diligence in Mining Mergers and Acquisitions

1. what are mining mergers and acquisitions? Mining M & A refers to the merger and acquisition of mining projects under the premise that the acquirer or at least one of the target companies is a mining enterprise. Why should legal due diligence be conducted in 2. mining mergers and acquisitions? In the process of mergers and acquisitions, the acquirer and the acquired party's grasp of the target company's information is asymmetric. From the perspective of the acquirer, in order to reduce the legal risks caused by information asymmetry, conduct legal due diligence on the target company, understand all the information of the target company as much as possible, fully understand the basic situation of the target company, find possible legal risks, and propose solutions to related risks; as for mineral mergers and acquisitions, the personality problem of legal due diligence lies in the need to confirm the legality and risk controllability of the circulation of mining rights, the circulation process of mineral enterprises is often very complicated and there are many unknown inside stories, including but not limited to holding on behalf of others, doubtful consideration, third-party interests such as collectives, non-payment of resource prices, administrative penalties brought about by cross-border and barbaric mining, and so on. These will bring unpredictable obstacles to the realization of value through mineral rights. For the acquired party, by conducting due diligence on the acquirer, it is verified whether the assignee of the mining right meets the requirements of the applicant for the prospecting right or the applicant for the mining right as stipulated in the Measures for the Administration of the Registration of Mineral Resources Exploration Blocks or the Measures for the Administration of the Registration of Mineral Resources Mining. At the same time, we can also know as much as possible about the buying strength and sincerity of the acquirer, and estimate the probability of a successful transaction. Main Contents of Legal Due Diligence in 3. Mining Mergers and Acquisitions 1, the legality of the acquisition and disposal of mining rights. (1) Method of acquisition. The acquisition method includes the transfer method and the transfer method, of which the transfer method is mainly bidding, auction, listing, application in advance, agreement, etc. In the process of due diligence, the mining rights obtained in different ways need to pay attention to different problems. If the mining right is acquired by auction or listing, it is necessary to pay attention to whether the transaction price is directly linked to the transfer period of the mining right. If the transfer method is adopted, it is necessary to pay attention to whether the mining certificate meets the transfer conditions stipulated in Articles 3, 5 and 6 of the "Administrative Measures for the Transfer of Prospecting Rights and Mining Rights. It is important to note whether the mining rights transfer contract has been approved by the mining rights approval and registration authority at or above the provincial level (including the provincial level). (2) Evaluate the reasonableness of the parameters. Specifically, it includes the validity period of the mining right and the exploration stage specified in the exploration license. The number and continuation stage of the exploration right, and whether there is the possibility that the area of the exploration block will be reduced when the next application for renewal is made; Whether the mining right is included in the integration plan and scope by the government, and whether the mining right may not be renewed after the transaction is completed; Whether the mining right passed the annual inspection of the previous year. (3) Whether the owner of the mineral right has paid the price of the prospecting right or the mining right. (4) Whether there are rights restrictions on the mining rights of the target enterprise. Whether the mining right holder leases or mortgages the mining right to the outside world, and whether he cooperates with a third party in prospecting or mining. (5) Whether the actual mined minerals are consistent with the registered minerals. China has a registration system for mining species, and if the main mineral species changes, it is necessary to register the change, otherwise mining beyond the provisions of the license (except for symbiotic and associated minerals) may constitute the crime of illegal mining. 2, the authenticity of mineral resources reserves. (1) Go to the land department to inquire about the reserve record certificate. (2) Entrust the Reserve Assessment Center or professional consulting agency to conduct review and verification, and make comprehensive judgments on the geological structure and causes of mineralization. Generally speaking, legal due diligence only needs to check the reserve record certificate of the land department, but if the project is significant and the mining area resources directly affect the production and operation of the acquirer, it is the key factor to decide whether the acquirer will carry out the merger or not, so it is necessary to review and verify the mining area resources and analyze the feasibility and investment value of the project. 3. Legal compliance of land use According to the "Land Management Law", "Mineral Resources Law", "Mineral Resources Law Implementation Rules" and other laws and regulations, the land use right of the ground shall be obtained in accordance with the law before obtaining the prospecting right or mining right for exploration or mining. According to the provisions of the the People's Republic of China National Standard Land Use Status Classification (GB/T 21010-2007), mining land belongs to the second-class land, which belongs to the first-class industrial and mining storage land together with industrial land and storage land, specifically refers to mining, quarrying, sand (sand) field, salt field, brick kiln and other ground production land and tailings stacking land. Therefore, the definition of mining land in China mainly includes ground production land and tailings stacking land. Mining land belongs to the category of construction land. In the process of legal due diligence, it is necessary to review whether the target company conducts review and approval in accordance with the procedures for obtaining construction land. If the target company does not use the land in accordance with the regulations, there is a deadline for demolition of buildings and restoration of the land The risk of being fined will affect the normal production and operation of the enterprise. 4. Safety production situation in mining area (1) Check the safety production license of the target company, including but not limited to the authenticity and validity of the safety production license, whether it has been revoked or detained. (2) Whether the target enterprise is ordered to make safety rectification within a time limit according to law, and if so, whether the rectification is completed. (3) Whether the person in charge of minerals of the target company has obtained the certificate of safety production qualification, and whether the staff of special types of work hold the certificate. 5. Ecological and environmental protection issues Review whether the target company's "Environmental Impact Assessment Report (Form)" has passed the approval of the competent department of ecological environment, and whether the relevant personnel of the target company have been subject to administrative sanctions by the competent department of ecological environment. Check whether the target company has received administrative punishment for environmental protection substandard in the process of production and operation and whether it has made corrections. Go to the natural resources, forestry and other relevant departments to check whether the scope of mining rights is in the areas where mining is prohibited, such as nature reserves, scenic spots, national parks, ecological red lines, and so on. If all the mining rights are in the protected areas, there will be legal risks that they will not be able to be renewed. 6. Understand the industrial policy of the mineral location The Circular of the Ministry of Land and Resources on improving the Administration of examination, approval and Registration of Mineral Resources Mining stipulates that if the mining right is closed and announced by the people's government at or above the county level due to ecological protection, production safety, public interest, industrial policies, etc., the competent department of land and resources at the same level shall notify the original registration authority by letter. According to the regulation, the government has the right to decide to close the mining right if it is not in line with the industrial policy. Therefore, during the legal due diligence, we should have an understanding of the industrial policy of the mineral location to avoid legal risks arising from non-compliance with the industrial policy. 4. Summary In mining mergers and acquisitions, in addition to the above-mentioned individual issues, lawyers should also review the common issues of the target company during the legal due diligence process, including but not limited to the establishment and survival, subject qualification, shareholder qualification and equity structure, corporate governance structure, whether the merger and acquisition has been approved and authorized, major contracts, external claims and debts, litigation and administrative penalties, labor and employment, etc.

2022-09-27

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

The bank account of the executed person is an important property clue, the currency in the account is a kind of thing, according to the principle of right appearance, usually possession is all. The court generally follows the principle of formal examination when examining the property of the person subject to execution in the enforcement procedure, and the bank deposit in the name of the person subject to execution is often considered to be all his property, and the court may take enforcement measures against the bank account in accordance with the law. Question: Outsider A mistakenly remitted all his 2 million yuan money to the bank account of executed person B, but the account was sealed up and frozen by the court before the money was remitted, and B could not return it to Party A. Now, in order to safeguard its rights, can Party A directly file a lawsuit against the execution of the outsider and the execution of the outsider? Can the ownership of the mis-remittance item be directly confirmed and the execution be blocked after an objection is raised? What should be the most appropriate way of judicial relief? The aforementioned problems are common in judicial practice, but there has been controversy, this paper combined with the relevant legal provisions, cases for a brief analysis. 1. Controversial Views in Current Judicial Practice 1, outsider A may file an enforcement objection to the exclusion of enforcement. First of all, all the money of the outsider A enters the account of the executed person B only because of the wrong remittance. Because the legal act without true intention does not have the legal effect of establishing, changing and terminating civil rights and obligations, the remittance behavior of the outsider A does not lead to the transfer of ownership of the remitted items. At this time, the state of the money is the separation of ownership and possession, outsider A has a civil interest in the amount sufficient to exclude enforcement. Secondly, the lawsuit of the outsider's execution objection is aimed at protecting the legal entity rights of the outsider. If it is found that the rights and interests of the entity involved in the case belong to the outsider A, the execution of the money involved in the case should be stopped directly to protect the legitimate rights and interests of the outsider A. Reference case: Supreme People's Court case [Supreme People's Court (2017) Supreme Fa Min Shen No. 322], which was published in the 2nd issue of the Supreme People's Court Bulletin in 2018. 2, the money belongs to the person subject to execution B, the court can enforce the money, outsider A should file a separate lawsuit for unjust enrichment. First of all, possession is the general principle of judging the nature of the ownership of funds, in the absence of evidence to the contrary to prove that the real right of the funds and the account owner is not the same, the general principle should be applied, the case of outsider A transfer of the money to the account of the executed person B, the ownership has been transferred to the executed person, no longer belong to the outsider. Secondly, even if the fact of erroneous remittance claimed by outsider A is established, the legal relationship formed by outsider A and B is a debt of unjust enrichment, and the right to claim unjust enrichment is an ordinary claim and does not belong to a civil right that is sufficient to prevent enforcement. Since the account owner B received the money without good reason, A may sue separately in a separate case for unjust enrichment. However, the claim is an ordinary claim and has no priority over the rights of other creditors of the possessor, so it cannot be prevented from executing the procedure separately. Reference case: Supreme Court case ["Civil Trial Guidance and Reference" Si Wei Supreme Court People's Court (201803/75), (2018) Supreme Fa Min Shen No. 1742]]. 2. relevant legal provisions and judicial adjudication tendency 1. On November 29, 2019, the Supreme People's Court issued the Interpretation (I) on the Application of Law in the Trial of Cases of Objection to Execution (draft for public comment) on its official website. Article 15 of the Interpretation: "The people's court enforces enforcement of funds in the account of the person subject to execution, and the outsider in the case claims that the funds in the account are remitted by mistake and that they are the actual owners of the funds, if the people's court does not support a lawsuit against the execution of the objection, the people's court may not support it, and the person outside the case may claim another right in accordance with the law on the basis of the facts such as the erroneous remittance." The above interpretation has not yet entered into force, although it is only a draft for comments, but it can also be seen that the Supreme People's Court's attitude towards the wrong remitter when filing an enforcement objection lawsuit will also have an impact on the court's tendency to judge such cases, with the aim of improving the efficiency of enforcement and guiding the parties to file an unjust enrichment lawsuit. 2. On July 28, 2020, the Shandong Higher People's Court issued a local judicial document, according to Article 11 of the ''Answers to Several Questions of the Civil Division of the Shandong Higher People's Court on the Trial of Cases of Objection to Enforcement of Laws'': For the ownership of the rights of monetary funds, the cash holder and bank account registrant shall generally be presumed to be the right holder based on the apparent state of the possession of the funds. If the outsider claims the right to the wrong remittance of the funds in the account of the person being executed, and requests the exclusion of execution, it is generally not supported. If the outsider has evidence that the monetary funds have been specified by means of special accounts, special accounts, seals, etc., which is sufficient to show that the property rights and interests are in a state of separation of ownership and possession, the actual right holder of the monetary funds shall be determined on the basis of the true attribution of rights." According to the above provisions, the trial practice in Shandong region can be analyzed and obtained, and conditional support is given to the lawsuit of execution objection raised by outsiders. The author further searched the judgment documents of such cases in Shandong region after November 29, 2019, and found that only a few cases were supported during this period, and most of the cases were rejected. At present, the judgment caliber has not been unified. 3. On January 24, 2022, the WeChat public number "Supreme People's Court People's Court" published an article: "Outsiders cannot exclude enforcement on the grounds that the funds in the account of the executed person are misremitted by him." The general content is as follows: (1) As a special movable property and an unspecified object, currency is its basic attribute. When the bank executes the remitter's intention, the effect of fund delivery occurs. The civil rights arising from the legal transfer of currency are enjoyed by the account owner. The funds remitted to the account of the person subject to execution are the liability property of the person subject to execution and belong to the property available for execution. (2) Based on the basic principle that currency possession is all, even if the wrong remittance is a fact, for the remitter, the legal consequence of the wrong remittance is that it has the right to claim unjust enrichment for the owner of the remittance account, which belongs to the category of creditor's rights, not the real right. The right to claim unjust enrichment has no priority over other ordinary monetary claims and cannot exclude enforcement. (3) Although an outsider cannot exclude enforcement on the basis that the funds in the account of the executed person are misremitted by him, if the outsider does have evidence to prove that he or she is misremitted by mistake, he or she may, in accordance with the law, separately claim the return of unjust enrichment to the executed person. According to the above-mentioned relevant provisions and views, it can be seen that the attitude of the Supreme People's Court in handling such cases has been revised from the tendency to support the execution objection of outsiders to not support it. The author believes that although it can play a role in improving the efficiency of execution and guiding the parties to file unjust enrichment claims, to a certain extent, unjust enrichment claims have little effect on the wrong remitters. Even if the unjust enrichment claim is successful and enters the enforcement phase, it is still an ordinary claim in nature, without any priority effect, and there is great uncertainty as to whether it can be enforced in place. 3. choose a more comprehensive way of relief The author believes that in the event of an outsider's erroneous remittance, an appropriate litigation plan should be formulated in the light of the specific facts of the case: 1, give priority to the outsider to execute the objection to the lawsuit. Because the debt of unjust enrichment has the nature of ordinary creditor's rights, it can not achieve the purpose of the outsider to confirm the ownership of the money and exclude the purpose of enforcement, so the priority is to choose the outsider to execute the objection. At the same time, attention should be paid to whether the following factual factors of the case exist: (1) Whether the outsider can confirm the existence of the fact of the erroneous remittance. Confirm the causes of remittance, such as the existence of other contractual debts; Confirm the causes of erroneous remittance, such as the high similarity between the account number and account name of the intended payment account and the actual collection account; Timely relief after erroneous remittance, such as immediately informing the other party or filing a civil lawsuit, etc.; Whether there is a corresponding contract or other cooperative relationship between the two parties; The degree to which the remittance amount is consistent with the cooperative relationship between the two parties, etc. (2) Whether there are other economic transactions between the outsider and the payee. (3) Whether there is agreement between the outsider and the payee on the remittance (4) Status of the receiving account at the time of remittance (5) During the period when the account was closed and the person in the case brought by the outsider, whether other funds entered the account and whether it was mixed with other funds. After comprehensive consideration of the above factors, it can be decided according to the specific facts of the case whether to give priority to the execution of the objection of the outsider, so as to obtain the support of the people's court, so as to exclude the enforcement. 2. Supplementary filing of unjust enrichment claims There is a legal risk of being rejected by the court because the cases filed by outsiders of the execution objection and the execution objection are complicated and the trial period is long. If the execution objection and the execution objection are rejected, the time cost of the lawsuit will be increased. Therefore, it is necessary to add the lawsuit of unjust enrichment at the same time, require the executed person to return the wrong remittance funds, and apply for enforcement in a timely manner. However, due to the nature of ordinary claims, there is a high probability that distribution can only be obtained through participation in the distribution process, and there is a legal risk that it cannot be effectively implemented in place.

2022-09-26

Real estate perspective... Study on the rules of discount compensation for invalid construction contracts.

Introduction Article 793, paragraph 1, of the Civil Code stipulates that the construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project. On the basis of Article 2 of the Judicial Interpretation of Construction Projects, this provision further clarifies that the essence of discount compensation is the right to claim for the return of unjust enrichment, while retaining the pricing rules agreed in the contract on the project price when the construction contract is invalid. However, there is no further explanation and regulation on how to understand and apply the rules of discount compensation, resulting in inconsistent standards of adjudication in practice. Therefore, in this paper, the author studies the standard, scope and path of the discount compensation rule, and responds to the dispute. The nature of 1. discount compensation. In the field of construction engineering, the contractor does not have the qualification of the construction enterprise but signs the construction contract with others. The validity of such contracts is denied by the provisions of Articles 1, 2 and 3 of the (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes. However, regardless of the validity of the contract, the meaning of invalidity is not the effect of the performance of the contract, does not mean that there is no legal effect, the contract price of the dispute can not be avoided because of the invalidity of the contract. The Judicial Interpretation of Construction Projects (Fa Shi [2004] No. 14) stipulates that the construction contract for a construction project is invalid, but if the construction project is qualified after completion and acceptance, and the contractor requests to pay the project price with reference to the contract, it shall be supported. This latter provision is followed by the first paragraph of Article 793 of the Civil Code, and its expression is amended to read: "The construction contract for a construction project is invalid, but if the construction project is accepted and accepted, the contractor may be compensated at a discount by reference to the contract's agreement on the price of the project." Although in the case of invalid construction contract, the contractor to perform the construction obligations rely on the payment of the loss, but this does not mean that invalid legal acts do not have legal consequences. Given that the original has been converted into construction works, it is not suitable for return or cannot be returned. At this time, the contractor may request discount compensation to eliminate the contractor's unjust enrichment, and its right to return the original property is transformed into the right to return the unjust enrichment. It can be seen that the nature of discount compensation is positioned as unjust enrichment most in line with the basis of the right of claim and the scope of interest protection of invalid contracts, which not only solves the problem of imbalance of interests from the perspective of equity, but also makes up for the legislative gap of contract liquidation. Standard of 2. discount compensation In the field of construction engineering, the general standard of discount compensation for construction funds can be divided into two types, one based on objective value and the other based on contractual agreement. Among them, the objective value as the settlement standard is also understood as the project quota as the standard, the method is relatively out of the subjective will of the parties to the contract, generally refer to the price of professional appraisal institutions or according to the relevant administrative departments issued at the time of the signing of the contract guidance price. The settlement by reference to the contract is more based on the subjective will of the parties to the contract, combined with the specific project for price settlement. The second of the above two views is considered to be more in line with the specific circumstances of the construction contract, because in the field of construction projects, the project price agreement as the result of the game between the parties to the contract, the agreed amount is relatively reasonable, but also reflects the true meaning of the contractor. On this basis, if we do not refer to the contract price as the settlement standard, but simply calculate the project quota, it is possible to make the settlement price higher than the price agreed by the parties to the contract, resulting in the contractor in the case of invalid contract to obtain more benefits than when the contract is valid. In this way, the contractor may take the false qualification and other means to make the construction contract invalid, in order to obtain more benefits. Referring to the contract price as the settlement standard, not only can avoid the above situation, but also can take into account the true intention of the parties to the contract, reduce the various disputes in the process of determining the project price, and balance the interests of the parties to the contract. However, the author believes that the above two views are not opposite, there is no need to fix a certain calculation method, let alone refer to the contract agreement to determine the project price under any circumstances. For example, when there are multiple contract prices and the authenticity cannot be distinguished, the true meaning of the parties to the contract price agreement cannot be confirmed. At this time, the court can make a judicial determination of the project price disputed by the parties by entrusting the appraisal, based on the appraisal conclusion issued by the appraisal institution, that is, the project quota. The above views are reflected in the dispute over the construction contract between Jinan Yongjun Materials Co., Ltd. and Qihe Huandun Steel Structure Co., Ltd. (2011) Minti Zi No. 104 Bulletin. The Supreme Court held that in the three different contracts provided by the parties in this case, the distribution of the contract price was irregular and the authenticity could not be distinguished, and the true intention of the parties to the contract price agreement could not be confirmed. Therefore, none of the three contracts can be used as the basis for the settlement of the project price. At this time, it is more in the interests of all parties to settle the project quota, and it is not improper to make a judicial determination of the project price disputed by both parties according to the appraisal conclusion issued by the appraisal institution. At the same time, the Supreme Court believes that if the appraisal agency makes an appraisal conclusion based on the fixed price and the market price, the project price should generally be determined at the market price when determining the project price. This is because most of the project cost determined on the basis of quota fails to reflect the construction, technology and management level of the enterprise, and the quota standard often fails to keep up with the changes in market prices, while the market price information released by the construction administrative department is closer to the market price, closer to the actual cost of the construction project, and in line with the relevant provisions of the contract Law, which is more fair to both parties. It can be seen that the determination of the project price by reference to the contract still has its limitations, with objective value as the settlement standard of the project quota standard settlement as a supplement, but also to a certain extent to make up for its limitations, the two complement each other, not absolute opposition. If the price of the project is only mechanically understood by reference to the contractual agreement, it may deviate from the actual situation and ignore the liability of the parties in the actual performance process. Therefore, when determining the discount compensation by reference to the contract agreement, it is still necessary to consider the objective value of the project and determine the calculation method in combination with the specific case, so as to avoid excessive deviation from the actual situation and realize the fairness of the individual case. Scope of 3. discount compensation As mentioned above, when the construction contract for the construction project is invalid and the construction project complies with Article 793 of the Civil Code, it is reasonable and realistic to compensate the contractor by reference to the contract's agreed discount on the price of the project. Questions that must be answered before the scope of discount compensation is judged to be applicable. Article 157 of the Civil Code provides for the legal consequences of an invalid contract: property acquired on the basis of an invalid contract shall be returned. At the same time, according to Article 33 of the Minutes of the National Court Civil and Commercial Trial Work Conference, after the contract is not established, invalid or revoked, the factors of property appreciation or depreciation shall be fully considered when determining the return of property. If the two parties acquire property as a result of the contract, they shall return it to each other after the contract is not established, invalid or revoked. If the property such as equity or house that should be returned increases in value or depreciates relative to the price agreed in the contract, the people's court shall comprehensively consider the correlation between market factors, the operation or addition of the transferee and the increase in value or depreciation of the property, reasonably distribute or share it among the parties, so as to avoid one party benefiting from the failure, invalidation or revocation of the contract. If the subject matter has been lost, resold to others or otherwise unable to be returned, the people's court shall not support the party's claim to return the original, but if it claims to be compensated at a discount, the people's court shall support it in accordance with the law. At the time of discount, the compensation standard shall be determined on the basis of the price agreed upon by the parties at the time of the transaction, taking into account the benefit of the parties in the loss or resale of the subject matter. The insurance or other compensation obtained by the parties at the time of the loss of the subject matter, and the consideration obtained at the time of resale, are the benefits obtained by the parties as a result of the subject matter. The portion of the benefit that is higher or lower than the price shall also be reasonably distributed or shared among the parties. It can be seen that in the discount compensation, the compensation standard should be determined by taking into account the loss of the subject matter or the benefit of the resale. Article 793 of the Civil Code explicitly refers to the contract's agreement on the price of the project to compensate the contractor at a discount, and has complied with the framework outlined in Article 157 of the Civil Code and Article 33 of the Minutes of the National Court Conference on Civil and Commercial Trials. "Discount compensation" already reflects the nature of compensation, that is, after adjusting the reasons for the loss of payment, the interest between the construction project and the project payment changes. Its scope should be capped at the cost of the project, and the issue of damages for breach of contract should be considered separately for adjustment factors such as construction quality and delay. When there is a cross-over of discount compensation and damages, in order to facilitate the parties to resolve the dispute, it can also be resolved together, with the discount compensation to make up for the change of interests arising from the act of payment. After determining the upper limit of discount compensation, the scope of compensation needs to be further determined. In principle, the scope of compensation should be limited to the scope of unjust enrichment. Since the discount compensation itself is applicable on the basis that the original cannot be returned or the original is not suitable for return, in the field of construction projects, the contractor has actually completed the construction project under normal circumstances can not be returned, so only the discount compensation to fill the contractor's loss. Therefore, the scope of discount compensation should be the loss of the contractor's interests, that is, the contractor's unjust enrichment. When the value of the construction project is calculated, both parties are also responsible for the causes that lead to the invalidity of the contract according to the actual situation, mainly based on the market position of the parties at the time of the conclusion of the contract, the reasons for the invalidity of the contract, and the consequences of invalidity to comprehensively measure the proportion of fault that both parties should bear, and evaluate on the basis of authenticity and rationality. Expenses paid to obtain benefits can be deducted within the scope of income. If one party is required to assume more responsibility, it will obviously lead to an imbalance of interests. Therefore, when referring to the contract's agreement on the price of the project, the standard of return of the original shall be used to claim discount compensation, and the contractor shall return the unjust enrichment to the contractor. The factors of 4. discount compensation. After clarifying the standard and scope of discount compensation when the construction contract is invalid, it will face the most direct problem in judicial practice, that is, what is the specific reference scope of "discount compensation with reference to the contract on the project price"? There are agreements related to the project price in the construction contract, including not only the amount of the project price, but also the payment node and payment time of the project price. In addition, the composition of the construction price differs significantly from other types of contract prices, and costs such as management fees, warranty payments, and even interest may be classified as part of the construction price to some extent. Whether the above matters are factors that should be taken into account and by what standard to measure, some have already determined the standard in practice, but some do not have a completely unified standard of identification in practice, and there are cases of different judgments in class cases, which the author will analyze one by one. (I) on the payment time of the project price. In the case of a dispute over the construction contract of Beijing Shougang Construction Group Co., Ltd. and Tonghua Chengxin Real Estate Development Co., Ltd., the Supreme Court held in the (2020) Civil judgment No. 1192 that "Article 2 of the Judicial interpretation of Construction projects is based on the discount compensation stipulated by the above-mentioned law." it is determined that the parties can request discount compensation for the project price with reference to the contract. According to this provision, the time of payment of such discount compensation shall also be based on the time of payment of the contract price." The decision held that the time of payment of the project should also be based on the time of payment of the project price agreed in the contract. However, contrary to this view, in the case of Xiao Chunyou and Linquan County People's Government's construction contract dispute, the Supreme Court stated in the (2019) Supreme Famin Shen No. 1218 Civil Ruling that "Under the circumstances that the construction contract is invalid, the original intention of Article 2 of the Judicial Interpretation of Construction Projects" on requesting payment of the project price by reference to the contract "should be to determine the project price by reference to the contract agreement, mainly refers to the project payment pricing method, pricing standard and other agreements related to the amount of the project price, and the terms of the payment node agreement between the two parties, does not belong to the applicable contract agreement." The decision held that the time of payment of the project should not be based on the time of payment of the project price agreed in the contract. It can be seen that there are different views in judicial practice as to whether the time of payment is a condition that should be referred to the contract. In this regard, the author believes that, in view of the "Civil Code" Article 793 clearly stipulates that if the construction project has passed the acceptance, the contractor can be compensated by reference to the contract on the price of the project. It can be seen that one of the prerequisites for discount compensation is the acceptance of the construction project, and the payment time of the project price is mostly carried out according to the node, so that on the one hand, the construction of the project can be maintained, on the other hand, the interests between the contractor and the contractor can be balanced. However, when the construction project acceptance is qualified, it means that the construction project has been completed, according to the node time payment is meaningless, at this time the construction contract is invalid, the contractor shall return the unjust enrichment to the contractor, should pay the project price directly to the contractor. Therefore, when the construction project acceptance is qualified, the contractor should pay the corresponding project price, the payment time is no longer bound by the contract, the contract agreed payment time, also has no reference significance. (II) Questions About Management Fees In the case of the dispute over the construction contract between Guangxi Construction Engineering Group No. 1 Construction Engineering Co., Ltd. and Aoshihua Construction Project, the Supreme Court held in (2020) Civil Ruling No. 7019 that "on whether Aoshihua should pay project management fees to a construction company. Since the Labor Service Agreement signed between Aoshihua and Yijian Beihai Branch is invalid, the agreement in the Labor Service Agreement that Yijian Beihai Branch will charge Aoshihua a project management fee at 15% of the total settlement price is also invalid. Therefore, the original judgment was not improper in calculating the amount paid by the construction company." The judgment is that the management fee is not a factor to be referenced. However, in the case of Xu Busheng and Qinghai Branch of Chongqing No.1 Construction Group Co., Ltd., the Supreme People's Court held in (2020) Civil Judgment No. 242 of the Supreme People's Court that "Chongqing No.1 Construction Company and Qinghai Branch of Chongqing No.1 Construction Company actually performed their management duties according to the stipulations of the Internal Contract, and the labor achievements they paid have been materialized into the performance of the construction contract of the construction project involved in the case, therefore, Xu Busheng should bear the corresponding compensation obligations. The decision found that the management fee was a reference factor. Although the above decisions give different answers as to whether the management fee is a reference factor, they are essentially the same. Consistent with this decision is the minutes of the 7th judges' meeting of the Second Circuit Court of the Supreme People's Court in 2020, which states that construction workers

2022-09-23

Viewpoint | Ways and conditions for the transfer of construction in progress

In practice, the transfer of construction in progress mainly includes the overall asset transfer of construction in progress (hereinafter referred to as "asset transfer") and the equity transfer of the project company established specifically for the development and construction of the project (hereinafter referred to as "equity transfer"). Asset transfer refers to the transfer mode in which the right holder transfers the undeveloped and completed construction in progress projects, including land use rights, construction in progress and related ancillary facilities, to the transferee as a whole and receives the transfer price. Equity transfer means that the right holder transfers the equity of the project company to the transferee for the purpose of transferring the project under construction. According to Article 39 of the "the People's Republic of China City Real Estate Management Law": "If the land use right is obtained by way of transfer, the following conditions shall be met when the real estate is transferred: (1) All the land use right transfer fees have been paid in accordance with the transfer contract. And obtain the land use right certificate; (II) investment and development in accordance with the transfer contract, which belongs to a housing construction project, more than 25% of the total development investment is completed, which belongs to a piece of land, the formation of industrial land or other construction land conditions. If the house has been built at the time of the transfer of real estate, it shall also hold a certificate of ownership of the house." It can be seen that in the transfer of assets, not only the procedures should be legal and complete, but also the amount of investment should reach 25% of the total investment. How do 1. understand that the amount of investment has reached 25% of the total investment? Referring to the provisions of Article 1, Article 2, Article 4, Article 6 and Article 16 of the Project Composition of Total Investment Expenses of Construction Projects (Draft for Comments) issued by the Ministry of Housing and Urban-Rural Development, the total investment of construction projects refers to the total estimated or actual investment expenses during the construction period to complete the construction of the project and meet the use requirements or production conditions, including project cost (such as construction cost, equipment purchase cost and installation cost, land use fee and other compensation fees, construction management fee, survey and design fee and other construction expenses, reserve fee), value-added tax, fund raising fee (such as loan interest, bond interest, loan evaluation fee, foreign loan handling fee and commitment fee, exchange gain and loss, bond issuance fee and other debt interest expense or financing fee) and working capital. Among the documents that can be inquired through public channels, only the ''Pilot Implementation Plan for Improving the Transfer, Lease, and Mortgage of the Secondary Market of Construction Land Use Rights in Xi'an, Shaanxi Province'' approved by the former Ministry of Land and Resources has been approved for the construction of housing construction projects. It has reached the identification standard of more than 25% of the total development investment, that is, one of the following conditions should be met: (1) For the land transferred by net land, the construction of the project has been fully started and has reached positive or negative zero; (2) Or the completed above-ground building area is not less than 1/3 of the total building area (excluding underground); (3) Or the audit (evaluation) report issued by a professionally qualified audit (evaluation) agency provided by the transferor that the amount of development investment (excluding land transfer fees) has reached more than 25%. Does the transfer of 2. equity also require an investment amount of 25% of the total investment? The former Ministry of Land and Resources once replied that the use of land use rights as capital contribution is a form of land use right transfer, and it should also meet Article 39 of the "the People's Republic of China Real Estate Management Law" that "25% of the total development investment can be completed". The restrictive provisions of the transfer are generally not accepted for property rights change applications that do not meet the prescribed conditions. However, according to the case of equity transfer disputes between Fu Xueling, Sha Modi and Zhou Yingqi, Yingkou Hengqi Real Estate Development Co., Ltd., the Supreme People's Court found in the (2016) Supreme Court Civil Judgment No. 222 that the transfer of 100 of the shares of the company holding the land use right should not be included in the review scope of land management laws and regulations because the subject of the equity transfer has not changed. Since the current law does not have the effect of mandatory provisions prohibiting the transfer of land use rights in the form of the transfer of equity in real estate project companies, the equity transfer agreement should be considered valid. Therefore, the transfer of 100 per cent of the real estate company's equity transfer contract, most courts will cite the view of the Supreme Law that it is essentially a transfer of equity, not a transfer of land use rights, under the provisions of the Company Law, the act is legal and valid. However, considering that in practice, some courts will consider that this behavior constitutes the crime of illegal transfer and reselling of land use rights, entrepreneurs should also prevent corresponding criminal legal risks, and should try their best to ensure compliance with relevant laws and regulations on the transfer of land use rights before implementing relevant behaviors. Conditions, or try to obtain the consent of the local government.

2022-09-21

Viewpoint... The process of repurchasing shares of listed companies to reduce registered capital.

Share repurchase is the act of a company buying back the shares of the Company issued or outstanding in accordance with certain procedures. The purpose of share repurchase is mostly the following: to reduce the registered capital of the company, to use the shares for employee stock ownership plan or equity incentive, to use the shares for the conversion of corporate bonds issued by listed companies that can be converted into shares, and to maintain the value of the company and shareholders' rights and interests. This article will summarize the operation process when share repurchase is used to reduce registered capital for your reference. 1. related regulations The main laws and regulations related to the repurchase of shares by listed companies include: the People's Republic of China Company Law, Share Repurchase Rules for Listed Companies, Shanghai Stock Exchange Self-Regulatory Guidelines No. 7-Repurchase of Shares and Shenzhen Stock Exchange Self-Regulatory Guidelines No. 9-Repurchase of Shares. 1. Company Law of the People's Republic of China Article 142 A company may not purchase its own shares. However, any of the following circumstances shall be excluded: (I) reduction of the company's registered capital; (II) merger with other companies holding shares in the Company; (III) use of shares for employee stock ownership plans or equity incentives; (IV) shareholders request the company to purchase its shares due to their objections to the merger or division resolution made by the general meeting of shareholders; (V) the use of shares for the conversion of convertible corporate bonds issued by listed companies; (VI) listed companies is necessary to safeguard the value of the company and shareholders' rights and interests. 2. Rules on Share Repurchase of Listed Companies Article 2: The term "repurchase of shares by a listed company" as mentioned in these Rules refers to the act of a listed company purchasing its own shares in one of the following circumstances: (I) reduction of the company's registered capital; (II) use of shares for employee stock ownership plans or equity incentives; (III) the use of shares for the conversion of convertible corporate bonds issued by listed companies; The (IV) is necessary to safeguard the value of the company and the rights and interests of shareholders. The circumstances referred to in Item (IV) of the preceding paragraph shall meet one of the following conditions: The closing price of the (I) company's stock is lower than the net asset value per share in the most recent period; The cumulative decline in the closing price of the company's stock in the (II) 20 consecutive trading days reached 30%; (III) other conditions prescribed by the CSRC. 3. Guidelines on Self-Regulation of Listed Companies on the Shanghai Stock Exchange No. 7-Repurchase of Shares "Guidelines on Self-Regulation of Listed Companies on the Shenzhen Stock Exchange No. 9-Repurchase of Shares" Article 2: These Guidelines shall apply to the repurchase of the Company's shares (hereinafter referred to as the repurchase of shares) due to the following circumstances: (I) reduction of the company's registered capital; (II) use of shares for employee stock ownership plans or equity incentives; (III) the use of shares for the conversion of convertible corporate bonds issued by listed companies; The (IV) is necessary to safeguard the value of the company and the rights and interests of shareholders. The circumstances referred to in Item (IV) of the preceding paragraph shall meet one of the following conditions: The closing price of the (I) company's stock is lower than the net asset value per share in the most recent period; The closing price of the company's stock has fallen by a cumulative 30% over the (II) 20 consecutive trading days; (III) other conditions prescribed by the CSRC. In addition to the above-mentioned circumstances, the repurchase of shares by a listed company shall be handled in accordance with the Company Law, the Securities Law, the China Securities Regulatory Commission and the relevant provisions of the Exchange. 2. repurchase process In this paper, the implementation of share repurchase to reduce the company's registered capital as an example, to sort out the listed company's share repurchase flow chart and the corresponding stage of information disclosure obligations: 3. considerations 1. Review procedures before share repurchase: If it is used to reduce the registered capital, it is mandatory to perform the review procedures of the general meeting of shareholders, and it must be approved by more than 2/3 of the voting rights held by the shareholders present at the meeting. 2. Information disclosure obligations: Listed companies shall fulfill their information disclosure obligations and notify creditors in a timely manner in strict accordance with the Company Law, the Rules on Share Repurchase of Listed Companies and the repurchase supervision guidelines issued by the Shanghai Stock Exchange and the Shenzhen Stock Exchange. 3. Opening of accounts related to share repurchase:(1) bank fund account (opened by bank);(2) special account for repurchase (opened by Zhongdeng);(3) stock trading account (opened by brokerage firm).

2022-09-20

Viewpoint | Research on Pledge of Accounts Receivable

1 Origin of the problem 1. Company A establishes a pledge registration of its own accounts receivable claims, Company B is the pledgee, and Company A transfers the claims to an unwitting Company C without authorization. Can Company B claim to Company C if it wants to realize the pledge? 2. Company A signs a creditor's rights transfer agreement with Company B to transfer the creditor's rights to Company B, and then Company A establishes a pledge registration for the creditor's rights, and Company C is the pledgee, can Company C obtain the pledge? If so, can Company C claim the pledge from Company B if it wants to realize the pledge? The above problems have produced great controversy in practice. Article 445 of the Civil Code provides that accounts receivable may not be assigned after they have been pledged, unless the pledgee and the pledgee agree to do so. However, the law does not further stipulate what the legal effect after the transfer should be, which should be invalid? The effect is pending? Effective? This also makes the courts in different places have different decisions in the face of such issues. To solve this problem, it is necessary to study the nature of the right of accounts receivable in the law, and the particularity of this kind of pledge right compared with the general pledge right. 2 Accounts receivable are not "movable property" in the sense of property law" The general theory of civil law generally holds that all things refer to physical objects, and the second thing can be divided into movable and immovable property. However, it should be noted that the understanding of physical objects should be from the perspective of physical objects, which refers to objects that have a certain material form and can be perceived by people, including tangible objects that occupy a certain space, such as solid, liquid and gaseous objects, as well as natural forces or energy such as electricity, heat, sound and light. Corresponding to the physical object is the non-physical object, which refers to the rights and interests other than the rights of the physical object, such as the rights of stocks, bills, bonds, etc., can be called intangible property, the essence of which is the interests of the subject of rights protected by law. As the subject matter of the pledge, accounts receivable is a kind of monetary payment request right, which is expressed as the right of the obligee to require the obligor to pay due to the provision of certain goods, services or facilities. It is the same as the nature of stocks and bonds. The interests of the subject of rights protected by law are not the property in the property law, and it does not belong to the category of movable property. 3 The pledge right of accounts receivable is a special security right. Accounts receivable is not a thing in the legal sense and does not affect its object as a property right. Article 115 of the Civil Code provides that if the law provides for a right as the object of a property right, it shall be in accordance with its provisions. Although accounts receivable cannot exist independently from the meaning between the receivable and the payer, however, the security interest itself is a property right that exists in pursuit of the exchange value of the subject matter, and it is precisely because of the independent exchange value that accounts receivable can become the subject of a pledge and exist as a kind of security interest. The pledge of accounts receivable has its particularity compared with the general pledge of movable property. The quality used for the pledge in the general movable property pledge is specific, when the right of quality is realized, the right holder can only dispose of the quality as a whole, which directly leads to the loss of ownership of the quality. In contrast, accounts receivable are essentially monetary claims, and rather than pledging a claim against a particular debtor, it is better to assume that the pledge is a currency with a particular security value, which is not only highly substitutable, but can also be quantified. In addition, the risk faced by the pledgee of accounts receivable is greater than that of the pledgee of movable property pledge. The reason is that the pledgee in the general movable property pledge relationship has transferred the direct possession of the pledge from the beginning, while the pledgee of accounts receivable lacks direct control over the accounts receivable, and the accounts receivable as the subject of the pledge are more likely to be disposed of by the pledgee, resulting in multiple pledges and the above-mentioned situations of pledge before concession, concession first and pledge later. Loopholes in the law also make it more difficult to deal with such problems in practice. Accounts receivable belong to monetary claims, the transfer of which shall be subject to the relevant provisions of the Civil Code Contract Book on the transfer of claims, while the pledge of accounts receivable belongs to the right of quality, and the provisions of the general provisions of the security property part shall apply. The problem is that the pledge of accounts receivable and the transfer of accounts receivable belong to the disposition of accounts receivable. As a lower degree of creditor's rights disposition, the pledge of accounts receivable needs to be registered and publicized before it can take effect. Since only the pledge of power and power needs to be registered, the disposition of direct transfer of rights needs to be registered. In fact, the transfer of accounts receivable with a higher degree of disposition is based on the provisions of the transfer of claims, and the right is transferred from the date of entry into force of the contract. Therefore, this kind of dual regulation model will bring about the contradiction of legal theory and legal application. 4 Pledge of accounts receivable from the perspective of "registration antagonism" Response to disputes The crux of the above problems is that the pledge of accounts receivable in our country adopts the registration validity doctrine, while accounts receivable are different from ordinary movable property and have no appearance of rights to be delivered. Moreover, the establishment of pledge on accounts receivable creates the effect of priority compensation for the pledgee and naturally replaces the change of accounts receivable. The high value of pledge of accounts receivable meets the substantial needs of the transaction. If all changes of accounts receivable rights are registered, it is bound to reduce the liquidity of accounts receivable and deviate from the efficiency requirements of the parties to the transaction. Therefore, most scholars argue that the registration of adversarial doctrine in legal design can improve the efficiency of transactions as much as possible to meet the needs of the parties. Under this model, the registered assignee has priority over the unregistered assignee, and the first registered assignee has priority over the later registered assignee, and the problem described at the beginning of this article can be solved: Case I The pledge is registered first, the transfer of accounts receivable is later, regardless of whether the assignment is notified to the debtor, the registered pledgee B may fight the creditor's transferee C, has priority in the settlement of the accounts receivable, and the debtor's settlement to the creditor's transferee based on the notification is invalid. C's rights and interests can also be protected, because the effect of the right of quality can be as much as the pledge property subrogation, C can claim the right of priority compensation for the property of A's transfer of accounts receivable. In case II, A assigns the receivable and then pledges it is not entitled to dispose of it, but it does not affect the effectiveness of C's registered pledge against transferee B based on the registration confrontation system. This view is not only a theoretical idea, but also reflected in the judicial thinking of some courts. (2018) In Judgment No. 7222, the court held that "the transfer of accounts receivable has been registered in the credit center of the People's Bank of China for the unified registration of the ownership of movable property, and has been publicized to an unspecified person, which can be used against a third party". In addition, the settlement order of multiple factoring in Article 768 of the Civil Code also embodies the spirit of "registration antagonism": if the creditor of accounts receivable enters into multiple factoring contracts for the same accounts receivable, resulting in multiple factoring claims, the registered accounts receivable shall be obtained before the unregistered ones; If all of them have been registered, the accounts receivable shall be obtained in the order of registration time; If none is registered, the accounts receivable are obtained by the factor specified in the notice of assignment that first arrives at the debtor of the accounts receivable; if neither registered nor notified, the accounts receivable are obtained in proportion to the amount of the factoring financing or remuneration for services.

2022-09-20

Viewpoint... The legal analysis of the partnership's de-listing and withdrawal system.

According to the the People's Republic of China Partnership Law (hereinafter referred to as the "Partnership Law"), the main ways for partnership partners to withdraw from the partnership are: withdrawal with an agreed partnership period, withdrawal without an agreed partnership period, withdrawal of course, withdrawal from the partnership, and withdrawal from the partnership. This paper attempts to combine the legal provisions, case analysis, from a practical point of view of the partnership de-listing withdrawal system. 1. concepts and legal provisions Withdrawal is a legal fact or legal act in which a partner withdraws from the partnership and loses his or her partnership during the life of the partnership. According to the Partnership Law, at present, the main ways for partners to withdraw from the partnership are the withdrawal of the agreed partnership period, the withdrawal of the partnership without the agreed partnership period, the withdrawal of course, the withdrawal of the partnership. Expulsion means that during the life of the partnership, when a partner has a legal cause or a cause agreed upon in the partnership agreement, the other partners unanimously agree to expel the partner from the partnership and disqualify him from the partnership. Under the statutory circumstances of delisting and withdrawing from partnership as stipulated in Article 49 of the Partnership Law, if a partner has one of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners: The (I) fails to fulfill its capital contribution obligations; (II) losses to the partnership are caused intentionally or by gross negligence; The (III) has acted improperly in the execution of the partnership affairs; (IV) the cause agreed upon in the partnership agreement occurs. The resolution to remove the partner shall be notified in writing to the removed person. The date on which the removed celebrity receives the notice of removal, the removal takes effect and the removed celebrity withdraws from the partnership. If the removed celebrity disagrees with the resolution of delisting, he may, within 30 days from the date of receiving the notice of delisting, bring a suit in a people's court. Circumstances of 2. delisting and withdrawing from partnership 1. Failure of partners to meet their capital contribution obligations A partnership is jointly funded by all partners, and if one partner fails to meet his or her capital contribution obligations, the other partners agree to expel the partner from the partnership, which is permitted by law. However, in judicial practice, failure to fully fulfill the obligation of capital contribution is not a delisting matter. Case 1. (2019) No. 14, Min Zhong, Shan 10 The Court is of the view that the Resolution of the Partners of the Shiquan Gold Selection Factory in Zhen'an County is based on the provisions of Article 49, paragraph 1, paragraph 1, of the the People's Republic of China Partnership Law, "failure to fulfill the obligation of capital contribution" and Article 16 of the Partnership Agreement of the Shiquan Gold Selection Factory in Zhen'an County. The so-called "failure to fulfill the capital contribution obligation" of the partner refers to the situation in which the partner refuses or fails to fulfill the capital contribution obligation, and if the partner fulfills part of the capital contribution obligation, it does not belong to the situation of failure to fulfill the capital contribution obligation. In this case, the appellee Wang Ming'an has fulfilled part of the capital contribution obligation in accordance with the partnership agreement, so it does not meet the circumstances of removal due to non-capital contribution. Article 16 of the Partnership Agreement of Shiquan Gold Selection Factory in Zhen'an County stipulates the liability for breach of contract and is not the basis for delisting. Therefore, the decision made by the appellants Liu Baomin and Liu Yuying to remove Wang Mingan from the list does not conform to the law. Therefore, Liu Baomin and Liu Yuying's request to confirm the valid appeal request of "Resolution of Partners of Shiquan Gold Selection Factory in Zhen'an County" and "Notice of Removal of Partners of Shiquan Gold Selection Factory in Zhen'an County" was not supported by this court. Case 2. (2018) Beijing 0105 Minchu No. 61438 In this case, first of all, although LeEco has not fulfilled its capital contribution obligations as of April 24, 2018, but at this time it is still 8 years from the date of its capital contribution, Tao Yun Company claims that LeEco has not fulfilled its capital contribution obligations without factual basis, and this court will not accept it. Similar cases in which support for failure to fully fulfill the obligation of capital contribution are not a delisting matter include (2016) Jin 0116 Min Chu 44 and (2014) Bin Min Chu Zi No. 1030. In addition, the reasons for delisting stipulated in Article 49 of the Partnership Law also include "the occurrence of the reasons agreed upon in the partnership agreement". If the partnership agreement stipulates that the situation of "failure to fully fulfill the capital contribution obligation" is the reason for delisting the partner, the provisions may be applied to delisting the partner who has not fully fulfilled the capital contribution obligation. 2. The partner caused damage to the partnership by intentional or gross negligence. The reason for this delisting contains two elements: first, the subjective element, I .e. the partner's intentional or gross negligence, and the objective element, I .e. the loss of the partnership due to the partner's intentional or gross negligence. The Partnership Act does not clearly define the criteria for determining intentional or gross negligence and the criteria for determining loss. It is proposed to analyze the criteria for the identification of judicial practice through the following cases. Case 1. (2017) Joan 96 Min Zhong No. 340 The Court believes that the key to the legality and validity of the resolution of the Lingshui Zhongtong Shareholders' Meeting made by Pang Jianping and Huang Xiaojie lies in whether the resolution meets the substantive and procedural requirements. According to the relevant provisions of my country's Partnership Law, if a partner causes losses to the partnership due to intentional or gross negligence, he can be removed by resolution with the unanimous consent of the other partners; the removed celebrity will take effect from the date when the removed celebrity receives the notice of removal. The removed celebrity withdraws from the partnership; if the removed celebrity has objections to the removal resolution, he may file a lawsuit in the people's court within 30 days from the date of receiving the removal notice. As far as the substantive elements of the resolution are concerned, as mentioned above, Pang Haichuan's self-replacement of Zhang Sheng-xian and arrangement of Zhang Daping to take over the Yingzhou site are the fundamental reasons why Zongtong Lingshui Branch was fined. Pang Haichuan should bear the main responsibility for this. Therefore, it can be determined that Pang Haichuan's gross negligence has caused losses to the partnership and Pang Haichuan meets the conditions for being removed. As far as procedural elements are concerned, the partnership is a three-person partnership, with Pang Jianping and Huang Xiaojie accounting for a 54.55 per cent majority share, and the resolution was made with the unanimous consent of Pang Jianping and Huang Xiaojie, so it also meets the procedural requirements. To sum up, it can be confirmed that the resolution is legal and effective, and the delisting will take effect from the date when Pang Haichuan receives the notice. Case 2. (2020) Xiang 01 Min Zhong No. 9348 The Court believes that the focus of the dispute in this case is the legality and validity of the Partner Resolution. Article 49 of the the People's Republic of China Partnership Law stipulates: "If a partner has one of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners: The (I) fails to fulfill its capital contribution obligations; (II) losses to the partnership are caused intentionally or by gross negligence; The (III) has acted improperly in the execution of the affairs of the partnership; (IV) the cause agreed upon in the partnership agreement occurs. In this case, the agreement on the removal of the partner in the partnership agreement is consistent with the above provisions. During the duration of the partnership, Zhong Zhiguo personally collected 3293100 yuan from the quarry. Although it did not exceed the scope of the priority borrowing right stipulated in the Resolution of the First Shareholders' Meeting of Kiln Quarry, Zhong Zhiguo did not return the relevant funds within the agreed time limit after the priority borrowing was used, affecting the normal production and operation of the quarry. The quarry was forced to stop work around the Spring Festival in 2016 due to arrears with migrant workers' wages. Zhong Zhiguo did not come out coordination during this period, there is a major fault in this. In addition, Zhong Zhiguo borrowed money or guaranteed personal debts in the name of the quarry, but did not actively deal with them after Ren Ping and Ouyang Xi joined the quarry. As a result, creditors Tang Jianhui and Zhu Zhuqing sued the quarry respectively. During this period, the quarry paid Tang Jianhui all the case money 4 million yuan, which caused difficulties to the operation and management of the quarry. Zhong Zhiguo's behavior should also be regarded as gross negligence. On September 18, 2016, Zhong Zhiguo drove the vehicle to the quarry feed port for a few days, on the grounds that the financial statements were rejected, and his behavior was also improper in the execution of the partnership. Therefore, Ren Ping, Ouyang Xi and Dong Zhengwu formed the "Partner Resolution" on September 19, 2016, taking Zhu Tingting and Zhong Zhiguo's illegal acts such as embezzlement, embezzlement of quarry production funds and payment for goods, which have caused significant impact and serious losses to the partnership enterprise, and removed Zhu Tingting and Zhong Zhiguo, which has legal reasons and conforms to the agreement of the partnership agreement. The "Partner Resolution" has been unanimously agreed by the other partners, and has been sent to Zhu Tingting and Zhong Zhiguo by legal and reasonable means, and the form and procedure are legal and effective. Zhu Tingting and Zhong Zhiguo appealed that the resolution was invalid, and that the first-instance judgment was beyond the scope of the trial and had no factual and legal basis, and the court did not support it. Case 3. Shanghai No.1 Intermediate People's Court (2018) Shanghai 01 Min Zhong No. 6077 The delisting resolution in this case is based on the provisions of Article 27 of the Limited Partnership Agreement and the provisions of Article 49, paragraph 1, items 2 and 3 of the the People's Republic of China Partnership Law. Based on the basic facts ascertained in the case, it can be determined that as a general partner, Lize Company does have many irregularities, non-compliance with the agreement, and non-compliance with the law in the execution of affairs and duties, which are mainly manifested in: As a domestic entity approved by a government agency and jointly implementing equity investment with overseas investment entities, the status quo of its direct investment project ownership is seriously inconsistent with the records in the approval certificate, and all the shares are registered in the name of Lize's overseas affiliates; there is a pledge guarantee on the shares of the overseas project; Lize failed to disclose the basic information of the project to the limited partners immediately, fully and completely. There is no evidence that Litzer has obtained the unanimous consent or approval of the limited partners as a result of the above circumstances and conduct. Although there is no final conclusion on whether the above-mentioned negligence of Lize Company has caused losses to Leehom Partnership, it is an objective fact that there are major defects in the ownership registration of overseas investment projects. There are uncertainties in how to dispose of Leehom Partnership and its new executive partners, how to withdraw and how to make profits, and the inevitable cost expenditure during the period is also inevitable. It is true that Lize Company has contributed to the realization of income from overseas investment of Leehom Partnership and has also paid diligent labor services. However, it is also an objective fact that only by eliminating the current obstacles can all the investment income from overseas smoothly. Zhongheng Zhi Company, Liqin Yecheng and Hao Xin Xiangsheng removed Lize Company from the list at this critical moment, which seems to be a helpless move under balance. In judicial practice, partners in the execution of affairs, the performance of duties is not standardized, does not conform to the partnership agreement, does not conform to the provisions of the law, easy to be identified as the existence of intentional or gross negligence. There is no specific monetary criterion for the size of the loss, and the nature of the loss is in addition to the loss that has actually occurred or includes the loss that will occur in the future. 3. The partner has acted improperly in the execution of the partnership affairs. The Partnership Act does not specify how to define improper conduct. According to the interpretation of this provision by the Working Group on the Drafting and Revision of the Partnership Law, improper conduct refers to the act of a partner infringing on the rights and interests of the partnership or other partners and seeking personal gain in the course of carrying out the partnership affairs. Such as disposing of the real estate and intellectual property rights of the partnership without the unanimous consent of the partners; reducing or reducing the liabilities of others without authorization, or canceling the pledge guarantee or mortgage guarantee provided by others under the creditor's rights of the partnership, privately engaging in business activities that compete with the enterprise, and Collusion with others to transfer the property of the partnership has caused heavy losses to the partnership. The author also believes that improper behavior needs to have the objective element of causing damage to the rights and interests of the partnership and other partners, as well as the subjective element of seeking personal gain. Specifically, it can be subdivided into (1) the act of failing to fulfill the obligation of capital contribution (2) the unauthorized handling of partnership affairs, for example, the limited partner acts on behalf of the limited partnership to the outside world, the partner who does not have the right to execute the affairs of the partnership without authorization, the act of transferring or disposing of the property of the partnership before the liquidation of the partnership, and the partners' handling of the affairs without the unanimous consent of all partners as stipulated in the Partnership Law or the partnership agreement, and so on. Case 1. (2020) Ji 01 Min Zhong No. 736 The Court believes that the delisting decision made by the appellee on January 11, 2019 is valid. Article 49 of the the People's Republic of China Partnership Law stipulates: "If a partner has one of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners, The (I) fails to fulfill its capital contribution obligations; (II) losses to the partnership are caused intentionally or by gross negligence; The (III) has acted improperly in the execution of the partnership affairs; (IV) the cause agreed upon in the partnership agreement occurs ". In this case, Article 26 of the Partnership Agreement has clearly stipulated that "partners shall not engage in business that competes with the partnership on their own or in cooperation with others. A partner may not transact with the partnership without the consent of all partners. Partners are not allowed to engage in activities that harm the interests of the partnership", but Jilin Longyang Building Materials Co., Ltd. run by Li Huarong's family members has the same business scope as the partnership involved in the case. Li Huarong also stated that the technology he developed is also based on Jilin Longyang Building Materials Co., Ltd. The company and the patent applied to relevant departments in the name of Li Moumou. In addition, the partnership has the basic characteristics of human nature, therefore, the original trial found that Li Huarong's aforementioned actions violated the agreement, and then found that the delisting resolution made by Sun Lichao and Zhang Lin on January 11, 2019 was valid and not improper. 4. The causes agreed upon in the partnership agreement occur. In addition to the above three cases of delisting and withdrawal, the partnership agreement may agree on other circumstances of delisting and withdrawal; when a cause of delisting and withdrawal as agreed in the partnership agreement occurs, a partner may be delisted with the unanimous consent of the other partners. Conditions and procedures for 3. delisting and withdrawing from partnership According to Article 49 of the Partnership Law, the removal of a partner requires the following conditions: 1. There are reasons for the removal of a partner as stipulated in the first paragraph of Article 49 of the Partnership Law, or there are reasons for the removal of a partner as stipulated in the partnership agreement. 2. The removal of the partner was unanimously agreed by the other partners and was decided in writing by the other partners. As for the procedure of delisting and withdrawing from partnership, the author thinks that all partners (including the partners to be delisted) should be notified before the partnership meeting and the resolutions of the partnership meeting should be listed, including the delisted partners. The rights of defense and interpretation of the delisted partners cannot be deprived. In addition, the partnership law requires the unanimous consent of other partners. Therefore, from the perspective of the interpretation of the text, the unanimous consent of other partners here does not distinguish the proportion of the investment share, rather, it strictly requires a unanimous resolution of the partners other than the proposed de-listed partner. Legal effect of 4. delisting In accordance with Article 52 of Article 51 of the Partnership Law, the settlement shall be made in accordance with the property status of the partnership at the time of withdrawal, and the share of the property of the withdrawing partner shall be returned. If the withdrawing partner is liable for the losses caused to the partnership, the amount to be compensated shall be deducted accordingly. If there are outstanding partnership affairs at the time of withdrawal, the settlement shall be made after the settlement of the affairs. The method of refunding the withdrawing partner's share of property in the partnership shall be agreed upon in the partnership agreement or decided by all the partners, and may be refunded in currency or in kind. In the internal legal relationship of the partners, the general partner of the withdrawal shall bear unlimited joint and several liability for the debts of the partnership before the receipt of the de-listing resolution, and the withdrawing limited partner shall be liable for the debts of the limited partnership that occurred before the receipt of the de-listing resolution, with the property retrieved from the limited partnership at the time of withdrawal.

2022-09-19

Point of view... "One room, two sales" problem practice.

The author recently handled a case of "one house, two sales", this paper will expand the analysis of how to deal with different situations in the practice of "one house, two sales" and risk prevention issues. Basic case Company A (canceled in 2004) signed a contract with Company B in 2001 and agreed to purchase a number of commercial houses of Company B. In September of the same year, Company A signed a Housing Purchase and Sale Agreement with Company C to resell the above-mentioned commercial houses purchased from Company B to Company C for demolition and resettlement, including the two houses involved in the case. After the contract is signed, Company C will pay Company A according to the contract, the two sides immediately handled the delivery of the house. Company C used all the above-mentioned houses for the demolition and resettlement of employees, and the employees subsequently moved to the above-mentioned houses for use until now. After that, Company A delayed the registration of the house transfer. In November 2018, Company C learned that Company B had certified the two houses involved in the case to Lu Mou on December 12, 2005. Lu mou was originally an employee of company a. company B concocted two "commercial housing sales contracts" with Lu mou on December 22, 2005 according to company a's transfer application, and cooperated with Lu mou to issue certificates for the two houses involved in the case to Lu mou. Based on the above facts, Company C filed a lawsuit with the court, demanding that the two "Commercial Housing Sales Contracts" signed by Company B and Lu Mou be confirmed invalid in accordance with the law. Finally, the court held that company B signed two "commercial housing sales contracts" with Lu mou according to the application of company a. company B claimed that there was no housing sales contract relationship with Lu mou, and Lu mou did not provide evidence to prove that it actually fulfilled the obligation of housing payment delivery. therefore, the meaning of the two "commercial housing sales contracts" concluded between company B and Lu mou was inconsistent, the agreement of the offer and commitment was not formed, so the two "commercial housing sales contracts" were not established. The essence of the case was that Company A sold one house and two houses. Company A colluded maliciously with Lu Mou. Company B mistakenly cooperated with Company A and Lu Mou to transfer the house involved in the case to Lu Mou's name under the condition of being cheated by Company A and Lu Mou. In the trial, Company B admitted that there was no contract relationship between Company B and Lu, and Lu did not provide evidence to prove that it actually fulfilled the obligation to deliver the house payment, which did not meet the requirements for the establishment of the contract. Therefore, the first instance ruled that the two "Commercial Housing Sales Contracts" between Company B and Lu were not established, and the second instance upheld the original judgment. Article 220, paragraph 1, of the Civil Code stipulates: "If the obligee or interested party considers that the matters recorded in the real estate register are incorrect, he may apply for correction of the registration. If the obligee recorded in the real estate register agrees in writing to make the correction or if there is evidence to prove that the registration is indeed wrong, the registration authority shall make the correction." From then on, company c may apply to the real estate registration agency for correction of registration with the effective judgment. The principle of handling one room and two sales In the above-mentioned case, the second transaction of the house involved in the case was judged not to be established because there was no agreement to buy and sell, in practice, for the sale and purchase behavior, the overall summary is nothing more than normal transactions, malicious collusion and other reasons for abnormal transactions three possibilities. In order to identify malicious collusion, it is generally possible to exclude normal trading and other causes by proving the existence of an association, low-cost transfer and applying rules of thumb. When the seller and the third party maliciously collude to enter into a separate house purchase and sale contract and then sell the house involved to the third party, it should be handled according to the relevant rules obtained in good faith, and judge whether the third party is in good faith when signing the contract (I .e. whether there is intentional or gross negligence), whether the transfer price is reasonable, whether it is registered or delivered through factual evidence, etc. If a third party acquires the ownership of the house in question in good faith, the original right holder may claim damages from the person who has no right to dispose of the house in accordance with the provisions of Article 341, paragraph 2, of the Civil Code. At the same time, according to the relevant provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases, if a third party has acquired the ownership of the house involved in good faith, the court shall rule to reject the plaintiff's lawsuit for subsequent transfer registration; the accused house registration is illegal, But if the revocation of the judgment will cause heavy losses to the public interest or the house has been acquired in good faith, the judgment confirms that the accused is illegal, but does not revoke the registration. In practice, if several contracts are valid and the buyer requires to perform the contract, according to the provisions of the minutes of the eighth national court civil and commercial trial work meeting of the Supreme people's Court, "when hearing a dispute over the sale of a house, if several contracts are valid and the buyer requires to perform the contract, generally, the right protection shall be determined in accordance with the order of registration of the change of ownership of the house, the legal possession of the house and the performance of the contract, and the order of the establishment of the contract of sale. However, the buyer who has registered in bad faith cannot have priority over the buyer who has legally occupied the house. The time of establishment of the contract of sale shall be determined by the time of filing by the competent authority, the time of signing the contract and other evidence". In the case of "one house, two sales", if the two contracts involving the common subject matter have legal effect, the real estate registration is better than the real estate registration. However, if two contracts involving the same subject matter, one of which is not legally effective or is found to be invalid, the buyer of the contract does not have the right to claim the subject matter, and certainly cannot fight the other legally valid contract buyer's right to claim the subject matter. How to prevent "one room two sell"? It is suggested that when signing the contract, the buyer of the house should have a detailed understanding of the property right status of the house, the current situation of the use of the house and other basic information. After the contract is signed, the seller should be urged to cooperate with the transfer procedures in a timely manner. The following measures can be taken to ensure that the ownership of the house can be obtained: 1. Registration of advance notice The buyer may apply for advance notice registration of real estate in accordance with the provisions of paragraph 1 of Article 85 of the detailed rules for the implementation of the interim regulations on Real Estate Registration in accordance with the agreement: (1) commercial housing and other real estate presale; (II) real estate sale and mortgage; (III) to set up mortgage on pre-purchased commercial housing; in (IV) with other circumstances stipulated by laws and administrative regulations, go through advance notice registration when purchasing commercial housing, the advance notice registration has the effect of public announcement. Article 15, paragraph 2, of the Interpretation (I) of the Supreme People's Court on the Application of the Property Rights Section of the the People's Republic of China Civil Code stipulates that under the following circumstances, the transferee of immovable property shall be deemed to know that the transferor has no right of disposition: within the validity period of the advance notice registration, without the consent of the obligee of the advance notice registration. After the buyer has registered the advance notice, the seller has no right to dispose of the house without authorization, thus preventing the third party from obtaining it in good faith. Although most local registration agencies handle advance registration for presale commercial housing, in fact, advance registration can also be carried out for second-hand housing transactions. However, it is worth noting that after the advance notice registration, if the creditor's right is eliminated or the real estate registration can be carried out, both parties to the advance notice registration should apply to the real estate registration institution for transfer registration in time. Otherwise, if the creditor's right is eliminated or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. If the transfer registration cannot be applied for due to various reasons, it is recommended that both parties apply to the real estate registration agency for advance notice registration again for extension. 2. Handle online signature filing Online signing and filing can make real estate transactions more transparent and fully protect the stability of commercial housing transactions. Whether it is a new housing transaction or a second-hand housing transaction, after the buyer and the seller have signed a housing sales contract, they can go to the relevant department for online signing and filing., The online signature number formed by the record is published online and available for relevant parties to inquire, so as to prevent "one house, two sales" or even "one house selling more".

2022-09-16

Viewpoint | "Only this green" is not only "green waist"-pay attention to the protection of intellectual property rights of dance works

"Only Green" is a key support work of the "Excellent Stage Art Project to Celebrate the 100 Anniversary of the Founding of the Communist Party of China". On New Year's Eve on January 31, 2022, the play was featured in the "2022 Central Radio and Television General Station Spring Festival Gala". The segment made "Green Waist" a popular word, but the full version must watch the national tour of the dance drama. On September 14, 2022, the dance drama landed in Quancheng, fortunately, I watched the first performance at the Shandong Grand Theater, and I knew that "Only This Green" is not only a "green waist", but a dance drama with a complete plot. Through the seven chapters of "exhibition of scrolls, asking for seal, singing silk, searching for stones, learning to write, quenching ink and painting", "This Green Only" tells the story of a young researcher from the Forbidden City, as an "exhibition scrolls person", who has a deep understanding of Wang Ximeng, a painter who is unknown in time and space but has a long history, using dance, music, setting and photoelectric projection to show the process of his painstaking creation of "A Thousand Miles, the expression of the birth of a work of art depends on the continuous refinement of the body and mind of seal carvers, quarrying pigments, silkworm weavers, pen makers, ink makers and painters, in order to create a graceful and charming, sometimes peaks and mountains, sometimes majestic, sometimes paper fragrance ink flying, sometimes full of green mountains and green waters, melting the air of the vast mountains and mountains. Whether it is "A Thousand Miles of Rivers and Mountains" itself or "Only This Green" dance drama, it is actually the crystallization and expression of painstaking creation, which is why intellectual property rights should be protected. On May 22, 2022, Zhou Liya, director of "Only Green", issued an article questioning the plagiarism of "Shuangxiang Trail" launched by Zhejiang TV Children's Channel and dubbed it original. On May 23, Zhejiang TV Children's Channel issued an apology and removed "Shuangxiang Path" from the shelves. In fact, "Only This Green" is not only a dance work, but also a combination of a drama work and a dance work. The nature of its work is more complicated. At the same time, compared with other copyright cases, the number of dance infringement cases in judicial practice is not comparable, and the judgment of dance works infringement is also controversial. When judging dance works infringement, we seem to pay too much attention to posture and movement, while ignoring the coherent process expression before and after dance, as well as its combination with sound and light, makeup, clothing, stage modeling design, etc., especially the continuous development of science and technology, with the continuous integration of AR (augmented reality) and VR (virtual reality) technology, we should re-examine the criteria for judging the infringement of dance works. Do 1. need to compare the removal of common sexual elements in dance When it comes to dance infringement, the defendant often defends that the common elements of dance are regarded as public resources, and a large number of the same dance movements can be used in any dance, thus requiring the elimination of the common elements of dance. There is a decision to support this defense, but it does not require the elimination of common elements. For example, the Beijing No. 2 Intermediate People's Court in the "Hello to the Motherland" Yangko dance infringement case "but these same dance movements are universal movements necessary for Yangko dance and can be used by anyone. Moreover, the overall choreography of the dance works of the two sides is different, and the timing, order and form of expression of these same dance movements in the dance works of the two sides are also different." In view of the fact that movements will be standardized in the process of specific dance training, if the same movements are eliminated as common elements, there may be no place for both sides to compare. However, the connection changes of different movements are rich and colorful, and the ways of expression are also diverse. Therefore, it is not necessary to eliminate common elements in judging dance infringement. The key is to see the arrangement, connection and expression of these elements. Is 2. infringement comparison frame by frame or overall comparison If you compare frame by frame, even the same dance performance is difficult to achieve complete consistency, frame by frame comparison results will certainly find a lot of different details, but ignore the overall expression. Therefore, the principle of dance infringement comparison should be based on the judgment method of trademark approximation. First, "overall comparison" should be carried out, and the whole dance should be regarded as a complete work. The overall comparison should be carried out for the starting, turning, transition and connection of movements. If the overall approximation is formed, the key parts of the two dances should be further "compared" to find out the key parts of their respective dances, it depends on whether the expressions of the main movements, connections and emotional contents are similar. If they are similar, it can be judged that the two dance works are substantially similar. How 3. judge the expression of dance According to the "Implementation Regulations of the Copyright Law", "dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions, etc." When dealing with dance works, we pay too much attention to the movements, postures and expressions of dancers. In fact, the dance drama "Only Green" not only shows the skill of "blue and green waist", but also expresses richer ideological connotation through the mutual cooperation of dancers, the transformation of stage setting, movement, transposition and so on, to judge the expression of dance, we should learn from the case of Chen Zhe (Qiong Yao) v. Yu Zheng (Yu Zheng) of the Third Intermediate People's Court of Beijing, whose protection works "the relationship between characters, specific plots and the whole formed by the series of specific plots", which corresponds to the setting of the relationship between the lead dance, the main dance and the companion dance in the dance choreography, and the corresponding positions, interactive expression and the evolution of the plot, at the same time, it is also necessary to consider "the combination of music, clothing, lighting and movements to express specific themes and thoughts and emotions" (see: Beijing Haidian District People's Court "Qianshou Guanyin" infringement case). Judging dance expression is obviously not limited to movements, postures and expressions. In fact, the "Regulations for the Implementation of the Copyright Law" also provide enumeration for the definition of dance works, but do not restrict more expressions of dance works. 4. dance sign moves or shapes how to protect For example, Yang Liping's peacock dance movements or modeling can be protected separately. Beijing Dongcheng District People's Court Yunnan Yang Liping Information Technology Development Co., Ltd. and Beijing Xinzheng Yicheng Catering Management Co., Ltd. and other unfair competition disputes, the court held: "The pattern involved on the central screen of the restaurant involved in the case and the" Moonlight "dance work, The former is static, the latter is dynamic, and the pattern involved in the case can find the corresponding movements and shapes during the dance process, whether the two constitute a substantial similarity in the sense of copyright law depends on whether the action modeling corresponding to the pattern involved belongs to the original expression of the dance work. Dance works are the organic combination of dynamic combination, static movement and modeling composed of continuous movements. On the one hand, the originality of dance works is reflected in the choreography, combination and connection between dance movements, on the other hand, it may also be reflected in specific dance movements. The dance movements corresponding to the pattern involved in the case in the dance works of Moonlight, combined with the dancer's specific makeup style and moonlight background, express certain thoughts and feelings, reflect the author's choice, design and arrangement, and are original. the behavior of the restaurant involved in the case using the pattern involved infringes the copyright of the dance works of Moonlight." The court held that the dance manifested itself as a composite of both dynamic and concrete static movements, affirming the protectability of the signature movements or shapes. 5. whether access to the obligee's work is a necessary prerequisite for judging infringement. Should the judgment of infringement be based on the premise of "contact" with the obligee's work? Assuming that the alleged infringer did not contact the plaintiff's work, but independently created a similar work, it can only be identified as "identical" work rather than infringement, which is different from the reasoning of cheating in the same volume of the college entrance examination. However, it is difficult to judge whether the accused infringer has actual contact, so it is generally judged according to the influence of the obligee's dance communication and the possibility of the accused infringer's contact. As the plaintiff, he should provide considerable evidence to confirm it before safeguarding his own rights. Judging dance infringement is also a complex process. It is necessary to look at the overall expression of dance as a whole, pay attention to its key original parts, and also consider the special effects produced by the integration of scientific and technological elements into music, stage design, clothing modeling and makeup. This is a complex process of legal re-understanding. So, "only this green" is not just "green waist"......

2022-09-15

Point of View | Sorting out the Highlights of the Revision of "the People's Republic of China Agricultural Products Quality and Safety Law (Revised in 2022)"

On September 2, 2022, the 36th meeting of the Standing Committee of the 13th National People's Congress of the People's Republic of China adopted the Law on the Quality and Safety of the People's Republic of China Agricultural Products (hereinafter referred to as "this Law"), which shall come into force on January 1, 2023. In fact, the Law on the quality and Safety of the People's Republic of China Agricultural products was adopted at the 21st meeting of the standing Committee of the 10th National people's Congress on April 29, 2006 and came into force on November 1, 2006. the People's Republic of China October 26, 2018, it was revised once at the sixth meeting of the standing Committee of the 13th National people's Congress. This is a revised re-publication. This revision has a lot of content, and at the legislative level, it has improved the quality and safety management system of agricultural products, refined the traceability mechanism of agricultural products, added a new system of certification of commitment to standards, improved the supervision and inspection system, and clarified "farmers" as agricultural product producers and operators. The status of the company has clarified the handling methods and punishment standards for "farmers" who violate the law, for the first time, the main person in charge of the competent department "takes the blame and resigns" as the way to deal with the violation of the law by the competent department. This revision refers to the relevant experience in the supervision and management of agricultural products in the past, combined with the new situation brought about by the sinking and popularization of the Internet and e-commerce as sales channels to the sales and management of agricultural products and the new requirements for the safety and quality of agricultural products under the new situation, it has a very high guiding significance and normative role for the whole process of agricultural product production, sales and management. The lawyers of the firm sorted out the key parts of this revision in order to provide some convenience for agricultural production and operation enterprises and individuals. 1 Quality and safety standards for agricultural products Article 2 of the "the People's Republic of China Agricultural Product Quality and Safety Law" before the revision reads "The quality and safety of agricultural products referred to in this law refers to the quality of agricultural products that meet the requirements of safeguarding human health and safety." After this revision, Article 2 is changed to "The quality and safety of agricultural products referred to in this Law refers to the quality of agricultural products that meet the quality and safety standards of agricultural products and meet the requirements for protecting human health and safety." With regard to the standards for the quality and safety of agricultural products, Article 5 clearly stipulates that "the competent agricultural and rural authorities and the market supervision and administration departments of the State Council shall, in accordance with the functions and duties prescribed in this Law, supervise and administer the quality and safety of agricultural products. Other relevant departments of the State Council shall, in accordance with the functions and duties prescribed in this Law, undertake the work related to the quality and safety of agricultural products." After consulting the official website of the Ministry of Agriculture and Rural Affairs, the Ministry of Agriculture and Rural Affairs has set up the Agricultural Product Quality and Safety Supervision Department, and the Agricultural Product Quality and Safety Supervision Department has five offices: the General Office, the Standards Office, the Monitoring Office, the Supervision Office, and the Emergency and Evaluation Office. Its main responsibilities are Organize and implement work related to the supervision and management of agricultural product quality and safety. Guide the construction of agricultural product quality and safety supervision system, inspection and testing system and credit system. Undertake agricultural product quality and safety standards, monitoring, traceability, risk assessment and other related work. The Agricultural Product Quality and Safety Supervision Department of the Ministry of Agriculture and Rural Affairs will publish various agricultural standards, safety and quality standards, and agricultural management measures and other departmental regulations on the official website from time to time. Remind agricultural production and operation enterprises and individuals should always pay attention to the specific information issued by the Ministry of Agriculture and Rural Affairs and the Department of Agricultural Product Quality and Safety Supervision. Relevant key provisions: Article 13 The State shall establish a risk monitoring system for the quality and safety of agricultural products. The competent department of agriculture and rural areas under the State Council shall formulate a national agricultural product quality and safety risk monitoring plan, and conduct quality and safety risk monitoring of key regions and key agricultural product varieties. The competent agricultural and rural departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall, in accordance with the national plan for monitoring the quality and safety risks of agricultural products and in the light of the actual production and operation of agricultural products in their respective administrative regions, formulate implementation plans for monitoring the quality and safety risks of agricultural products in their respective administrative regions, and report them to the competent agricultural and rural departments of the State Council for the record. The competent agricultural and rural departments of the local people's governments at or above the county level shall be responsible for organizing and implementing the risk monitoring of the quality and safety of agricultural products within their respective administrative regions. The market supervision and management department of the people's government at or above the county level and other relevant departments shall immediately verify and notify the agricultural and rural authorities at the same level after learning the information on the quality and safety risks of agricultural products. The competent agricultural and rural authorities that receive the notification shall report it in a timely manner. The department that formulates the agricultural product quality safety risk monitoring plan and implementation plan shall study and analyze in a timely manner, and make adjustments when necessary. Article 14 The State shall establish a risk assessment system for the quality and safety of agricultural products. The competent department of agriculture and rural areas under the State Council shall establish an expert committee on risk assessment of the quality and safety of agricultural products to conduct risk analysis and assessment of potential hazards that may affect the quality and safety of agricultural products. If the health and market supervision and administration departments of the State Council find it necessary to carry out quality and safety risk assessment of agricultural products, they shall put forward risk assessment suggestions to the competent agricultural and rural departments of the State Council. The expert committee of agricultural product quality and safety risk assessment is composed of experts in agriculture, food, nutrition, biology, environment, medicine, chemical industry, etc. 2 Clear regulatory body This revision clarifies that the agricultural and rural authorities and market supervision and management departments of the State Council shall, in accordance with the duties of this Law and the provisions, supervise and manage the quality and safety of agricultural products. Local people's governments at or above the county level shall, in accordance with this Law and the relevant provisions, determine the duties of the agricultural and rural competent departments, market supervision and management departments and other relevant departments for the supervision and management of the quality and safety of agricultural products at the same level. In the text before the revision, it was agreed that the "agricultural products wholesale market" would carry out quality and safety inspection on the agricultural products sold in the market, but the relevant contents were deleted in the new law, and the agricultural and rural management departments of the government at or above the county level were unified. Relevant key provisions: Article 5 The competent department of agriculture and rural areas and the department of market supervision and administration under the State Council shall, in accordance with the functions and duties prescribed in this Law, supervise and administer the quality and safety of agricultural products. Article 6 Local people's governments at or above the county level shall be responsible for the quality and safety of agricultural products in their respective administrative regions, uniformly lead, organize and coordinate the quality and safety of agricultural products in their respective administrative regions, establish and improve the working mechanism for the quality and safety of agricultural products, and improve the level of quality and safety of agricultural products. Local people's governments at or above the county level shall, in accordance with this Law and the relevant provisions, determine the duties of the agricultural and rural competent departments, market supervision and management departments and other relevant departments for the supervision and management of the quality and safety of agricultural products at the same level. All relevant departments shall be responsible for the supervision and administration of the quality and safety of agricultural products within their respective administrative areas. The township people's government shall implement the responsibility for the supervision and management of the quality and safety of agricultural products, and assist the people's government at a higher level and its relevant departments in the supervision and management of the quality and safety of agricultural products. 3 New commitment compliance certificate system This revision stipulates that agricultural product production enterprises and farmers' professional cooperatives shall issue certificates of commitment to meet the standards based on quality and safety control, test results, etc., and promise not to use prohibited pesticides, veterinary drugs and other compounds, and the use of regular pesticides and veterinary drug residues do not exceed the standard. Encourage and support farmers to issue certificates of compliance with commitments when selling agricultural products. Units or individuals engaged in the purchase of agricultural products shall collect and keep certificates of compliance with commitments or other quality and safety certificates, and for those engaged in the sale of mixed or sub-packaging of purchased agricultural products, a separate certificate of compliance with commitments shall be issued in accordance with regulations. Relevant key provisions: Article 39 The production enterprises of agricultural products and farmers' professional cooperatives shall implement the provisions of laws and regulations and the relevant compulsory standards of the state to ensure that the agricultural products they sell meet the quality and safety standards of agricultural products, and promise to meet the standards according to the quality and safety control and test results, Promise not to use banned pesticides, veterinary drugs and other compounds, and the residues of regular pesticides and veterinary drugs used do not exceed the standard. Encourage and support farmers to issue certificates of compliance with commitments when selling agricultural products. Where laws and administrative regulations have special provisions on the quality and safety certificates of livestock and poultry products, such provisions shall be observed. Units or individuals engaged in the purchase of agricultural products shall, in accordance with the provisions, collect and keep the certificate of commitment to meet the standards or other quality and safety certificates, and if the purchased agricultural products are mixed or sub-packed and sold, they shall issue the certificate of commitment to meet the standards in accordance with the provisions. The wholesale market of agricultural products shall establish and improve the system of inspection of the certificate of compliance with the commitment of agricultural products. The competent departments of agriculture and rural areas of the people's governments at or above the county level shall provide guidance services for the work related to the certificate of compliance and strengthen daily supervision and inspection. 4 Improve the supervision and inspection system, clear supervision and spot checks Should entrust agricultural product quality and safety testing institutions This revision clearly stipulates that the supervision and random inspection plan shall be entrusted to the agricultural product quality and safety inspection agency that meets the conditions specified in this law. This revision is a good thing for institutions engaged in the quality and safety testing of agricultural products. Relevant key provisions: Article 45 The agricultural and rural authorities and market supervision and management departments of the people's governments at or above the county level shall establish and improve the coordination mechanism for the supervision and management of the quality and safety of agricultural products throughout the process to ensure the quality and safety of agricultural products from production to consumption. The competent departments of agriculture and rural areas and the market supervision and administration departments of the people's governments at or above the county level shall strengthen the coordination and law enforcement of the supervision and administration of the quality and safety of agricultural products in the process of acquisition, storage and transportation, timely report and share the supervision and administration information of the quality and safety of agricultural products, and release the daily supervision and administration information on the quality and safety of agricultural products in accordance with their duties and powers. Article 46 The agricultural and rural authorities of the people's government at or above the county level shall, based on the results of agricultural product quality and safety risk monitoring, risk assessment, and agricultural product quality and safety status, formulate a supervision and random inspection plan, and determine the focus, method and frequency of agricultural product quality and safety supervision and random inspection, And implement the hierarchical management of agricultural product quality and safety risks. Article 47 The competent agricultural and rural departments of the people's governments at or above the county level shall establish and improve the random inspection mechanism, and organize the supervision and inspection of the quality and safety of agricultural products in accordance with the supervision and inspection plan. Agricultural product quality safety supervision and random inspection shall be entrusted to agricultural product quality safety inspection institutions that meet the conditions specified in this Law. Supervision and spot checks shall not charge fees to the persons subject to spot checks, and the samples taken shall be paid at market prices and shall not exceed the quantity prescribed by the competent department of agriculture and rural areas under the State Council. The same batch of agricultural products supervised and spot checked by the higher-level agricultural and rural authorities shall not be repeated by the lower-level agricultural and rural authorities. Five clearly including peasant households in the agricultural product management system, And clearly agreed that farmers in violation of the law. Responsibility to be assumed This revision lists "farmers" separately in the part of Chapter 7 "legal liability", which clarifies the responsibility of farmers for violating the law. This agreement takes into account the actual situation of agricultural production, combined with the current Internet and e-commerce as a sales channel sinking and popularization of the new situation and regulations, in line with the current requirements for the quality and safety management of agricultural products. Relevant key provisions: Article 70 Where a producer or operator of agricultural products commits any of the following acts in violation of the provisions of this Law, which does not yet constitute a crime, the competent agricultural and rural authorities of the local people's government at or above the county level shall order him to stop production and operation, recover the agricultural products that have been sold, make the agricultural products illegally produced and operated harmless or supervise and destroy them, confiscate the illegal income, and may confiscate the tools, equipment, raw materials and other articles used for illegal production and operation; if the value of agricultural products illegally produced and operated is less than 10,000 yuan, a fine of 100,000 yuan to 150,000 yuan shall be imposed, and if the value of the goods is more than 10,000 yuan, a fine of 15 times to 30 times the value of the goods shall be imposed. Farmers, and impose a fine of 1,000 yuan to 10,000 yuan; If the circumstances are serious, the license shall be revoked if there is a license, the public security organ may detain the person in charge and other persons directly responsible for it for not less than five days but not more than 15 days: (I) the use, in the production and operation of agricultural products, of agricultural inputs or other toxic or harmful substances that are prohibited by the State; (II) the sale of agricultural products containing pesticides, veterinary drugs or other compounds the use of which is prohibited by the State; The (III) sells animals and their products that have died of disease, poisoning or unknown causes of death. Knowing that agricultural product producers and operators are engaged in the illegal acts specified in the preceding paragraph and still provide them with production and business premises or other conditions, the agricultural and rural authorities of the local people's government at or above the county level shall order them to stop the illegal acts, confiscate the illegal income, and impose a penalty of more than 100,000 yuan. Fines below 200,000 yuan; if the legitimate rights and interests of consumers are harmed, they shall be jointly and severally liable with the producers and operators of agricultural products. Article 71 Where a producer or operator of agricultural products commits any of the following acts in violation of the provisions of this Law, which does not yet constitute a crime, the competent agricultural and rural authorities of the local people's government at or above the county level shall order him to stop production and operation, recover the agricultural products that have been sold, treat the agricultural products that have been illegally produced and operated in a harmless manner or supervise their destruction, confiscate the illegal income, and may also confiscate the tools, equipment, raw materials and other articles used in illegal production and operation; if the value of agricultural products illegally produced and operated is less than 10,000 yuan, a fine of 50,000 yuan to 100,000 yuan shall be imposed, and if the value of the goods is more than 10,000 yuan, a fine of 10 times to 20 times the value of the goods shall be imposed; For farmers, a fine of not less than 500 yuan but not more than 5,000 yuan shall also be imposed: (I) and sell agricultural products with residues of chemical substances such as pesticides and veterinary drugs or containing toxic and harmful substances such as heavy metals that do not meet the quality and safety standards for agricultural products; (II) the sale of agricultural products containing pathogenic parasites, microorganisms or biological toxins that do not meet the quality and safety standards for agricultural products; (III) the sale of other agricultural products that do not meet the quality and safety standards for agricultural products. Article 72 Where a producer or operator of agricultural products commits any of the following acts in violation of the provisions of this Law, the agricultural and rural authorities of the local people's government at or above the county level shall order the cessation of production and operation, recover the agricultural products that have been sold, dispose of the agricultural products that have been illegally produced and operated in a harmless manner or supervise and destroy them, confiscate the illegal income, and may confiscate the tools, equipment, raw materials and other articles used in illegal production and operation; if the value of agricultural products illegally produced and operated is less than 10,000 yuan, a fine of not less than 5,000 yuan but not more than 50,000 yuan shall be imposed; if the value of the goods is more than 10,000 yuan, a fine of not less than five times but not more than ten times the value of the goods shall be imposed; for farmers, a fine of not less than 300 yuan but not more than 3,000 yuan shall be imposed: (I) the facilities, equipment, disinfectants, detergents, etc. used in agricultural production sites and production activities do not comply with the relevant national quality safety regulations; (II)

2022-09-13