09
2022-08
In recent years, due to the impact of the new crown epidemic, the downward pressure on the economy continues to increase, many small and medium-sized enterprises are facing financing difficulties, and some even take "unconventional" channels for financing. For example, some small and medium-sized real estate enterprises are short of funds in the process of housing development, but the houses they develop do not have the conditions to apply for property rights certificates. These enterprises finance by registering the developed houses online or in advance to the lender's name to provide guarantee. The specific operation mode is generally that the debtor and the creditor sign the "commercial housing sales contract", agree to sell the debtor's house to the creditor, and sign the "commercial housing sales contract" online for the record; the creditor does not pay the purchase price to the debtor, and the debtor does not deliver the house to the creditor; and usually does not have the conditions for advance notice registration. If the debtor is unable to repay the debt due, does the lender, as a creditor, have the right to claim ownership of the house or to have a priority right to pay for the auction, sale or discount of the house. This question mainly involves whether the concession and guarantee is established, the following author combined with the Supreme People's Court's relevant jurisprudence for analysis. The relevant provisions and composition analysis of the 1. concession and guarantee system. The concept of cession and guarantee has existed for a long time in judicial practice, and the relevant provisions first appeared in Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (2020 Amendment) (hereinafter referred to as the Judicial Interpretation of Private Lending); article 71 of the Minutes of the National Court's Civil and Commercial Trial Work Conference (hereinafter referred to as the Minutes of the Ninth People's Conference) provides for the first time in its entirety for the nature, effectiveness and priority of the assignment of security; thereafter, the Supreme People's Court on the application of<中华人民共和国民法典>The Interpretation of the Guarantee System (hereinafter referred to as the Judicial Interpretation of the Guarantee System) further optimizes and perfects the cession guarantee system in the Minutes of the Ninth People's Conference. Article 24 of the Judicial Interpretation of Private Lending stipulates that if the parties take the conclusion of a contract of sale as a guarantee for the private lending contract, the borrower cannot repay the loan upon maturity, and the lender requests the performance of the contract of sale, the people's court shall hear the case in accordance with the legal relationship of private lending. If the parties change their claims in accordance with the court hearing, the people's court shall grant permission. After the judgment made in accordance with the legal relationship of private lending comes into effect, the borrower fails to perform the monetary debt determined by the effective judgment, and the lender may apply for the auction of the subject matter of the contract of sale in order to repay the debt. The borrower or lender shall have the right to claim return or compensation for the difference between the price of the auction proceeds and the principal and interest of the loan due. Article 71 of the minutes of the nine people's meeting stipulates that if the debtor or a third party enters into a contract with the creditor, the debtor shall formally transfer the property to the creditor's name, the debtor shall pay off the debt at maturity, the creditor shall return the property to the debtor or the third party, if the debtor fails to pay off the debt at maturity, and the creditor can auction, sell or repay the creditor's rights at a discount, the people's court shall determine that the contract is valid. If the contract stipulates that the debtor fails to pay off the debts when due and the property belongs to the creditor, the people's court shall find that part of the agreement invalid, but it shall not affect the validity of other parts of the contract. According to the above-mentioned contract, the parties have completed the transfer of the publicity method of property rights changes to the creditor's name, and the debtor has not paid off the debts when due, and the creditor requests to confirm that the property belongs to it, the people's court will not support it, but the creditor requests to refer to the law on security rights. If the provisions of the People's Court gives priority to the auction, sale, or discount of property to repay its claims, the people's claims, the people's rights. The people's court shall also support the debtor's request for the auction, sale or discount of the property to repay the debts owed to the creditor under the contract due to the failure to pay off the debts due. The first paragraph of Article 68 of the "Judicial Interpretation of the Guarantee System" stipulates: The debtor or a third party and the creditor agree to transfer the property to the creditor in form, and the debtor fails to perform the due debt, the creditor has the right to discount the property or auction, Where the price from the sale of the property repays the debt, the people's court shall determine that the agreement is valid. If the parties have completed the publicity of the change of property rights, the debtor fails to perform the debt due, and the creditor requests priority payment of the property by reference to the relevant provisions of the Civil Code on security interests, the people's court shall support it. From the above provisions, it can be seen that there are two prerequisites for the achievement of the assignment of security: first, the assignment of security must transfer the ownership of the property to the name of the creditor; Second, the debtor or a third party and the creditor reach an agreement to use the property owned by the debtor or a third party to set up a guarantee for the performance of the debtor's debt at maturity. 2. for the provision of "guarantee" of the house, only for the net sign for the record without notice registration does not constitute a transfer of security, creditors do not enjoy ownership and priority compensation rights. The author has collected and sorted out a number of relevant judgment documents made by the Supreme People's Court recently, and the main points of the judgment are summarized as follows: (I) Cai Ridong and Huaihua Jinshun Real Estate Development Co., Ltd. Dispute over Property Rights Confirmation [(2021) Supreme Fa Min Shen No. 1697]] The main purpose of the decision: The transfer of security requires the debtor or a third party to reach an agreement with the creditor, and the debtor or a third party to have ownership of the property provided, and the net signature filing of the house is not a change of ownership and does not produce the legal effect of the transfer and security. (II) Cui Xuewei and Chongqing Baoshi Real Estate Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute [(2020) Supreme Famin Shen No. 6918]] The main purpose of the decision: the premise of the security right of the house involved in the case is that the parties have completed the publicity of the change of property rights in accordance with the contract, and the property has been transferred to the creditor's name in the form. Although the housing involved in the case went through the online signing procedures, but the housing involved in the case has not changed the registration to the creditor's name, nor did it go through the registration procedures of the security right, the creditor does not enjoy the priority of the housing involved in the case. According to Article 16 of the Enterprise Bankruptcy Law, after the people's court accepts the bankruptcy application, the debtor's debt to individual creditors is invalid. As an ordinary bankruptcy creditor, he has no right to request the debtor to deliver the house to him and handle the transfer procedure. (III) Chen Liang, CITIC Trust Co., Ltd. and Kunshan Hongfeng Real Estate Co., Ltd. Case of Objection to the Execution of Outsiders [(2016) Supreme Law Minzong No. 369]] The main point of the judgment: when the realization of the loan creditor's rights is guaranteed in the form of house sale, the buyer of the house cannot claim to exclude the enforcement of the house according to the lack of real intention of the house sale relationship, even if both parties have already handled the house presale online signing filing, without showing the corresponding evidence that the loan relationship is transformed into the house sale relationship. (IV) Duyun Economic Development Zone Jinxinyuan Microfinance Co., Ltd. and Tan Jiaqin Private Loan Dispute [(2020) Supreme Law Minzai No. 90]] The main purpose of the decision: the guarantee established for the loan to buy and sell the house and handle the presale registration and filing is an atypical guarantee rather than a concession guarantee, does not produce the priority effect of the real right. The establishment of the transfer and security requires that the real estate has completed the publicity of the change of rights, and the property has been transferred to the creditor's name in the form. However, in this case, the housing involved in the case is only presale the record registration in the name of Pingjing and Ted, did not complete the change of ownership of the house, the relationship does not belong to the transfer and guarantee. It can be seen from the above-mentioned judgment documents of the Supreme People's Court that the view of the Supreme People's Court is clear, that is, the debtor only files the house online signature to the creditor's name to provide security, and does not produce the legal effect of concession and security. The creditor neither has the ownership of the house involved in the case, nor does it have the priority to receive compensation for the auction, sale and discount of the house. Some people may wonder why Article 24 of the Judicial Interpretation of Private Lending states that "the parties use the conclusion of a contract of sale as a guarantee for the private lending contract, ...... After the judgment made in accordance with the legal relationship of private lending takes effect, the borrower fails to perform the monetary debt determined by the effective judgment, and the lender may apply for auction of the subject matter of the contract of sale to repay the debt." According to the provisions of the "net sign" whether the person has the priority of compensation for the auction, sale and discount of the house, the question arises because the understanding of the above provisions is not comprehensive and thorough. Because Article 24 of the Judicial Interpretation of Private Lending does not give the borrower (I. e. the creditor) priority over the subject matter of the sales contract, the agreement of the sales contract between the two parties does not have the effect of real right against the third party. Although the creditor has the right to request the auction and sale of the property under the sales contract, the creditor to which the sales contract points has no priority to receive compensation. That is, if the house has been preserved and executed by the court, or if the debtor is a corporate legal person and has entered the bankruptcy liquidation procedure, or the house has actually been sold to another person, or there is a pre-established sales contract, etc., the so-called "net sign guarantee" that only handles the net sign of the house does not have legal exclusiveness and priority compensation. For example, the above-mentioned fourth case, that is, (2020) the civil judgment No. 90 of the Supreme Law Minzeng, found that: "The transaction mode of Jinxinyuan Company and Huasheng Company is in line with the circumstances stipulated in Article 24 of the Judicial Interpretation of Private Lending, according to this, it is confirmed that Huasheng Company signed the" Commercial Housing Sales Contract "with outsiders Ted Company and Ping Jing and registered the commercial housing presale in the name of the outsider to provide guarantees for debts. Atypical guarantees are established between the parties. Jinxinyuan Company can have the right to apply for auction of 82 sets of commercial housing provided by Huasheng Company for filing and registration within the scope of the 16.5 million yuan debt involved in the case that Unisea Company fails to repay on schedule, the realization of the claim on the price received." Although the decision recognized that the "net sign guarantee" was an atypical guarantee, it made it clear that "the atypical guarantee, rather than the concession guarantee, does not produce the priority effect of the property right". 3. for the provision of "guarantee" of the house, whether the advance registration does not constitute a concession and guarantee, whether to enjoy the right of priority compensation there is a certain dispute. The author has summarized the main points of several relevant cases that have been determined to constitute a concession and guarantee, and analyzed them as follows: (I) Zeng Fuyuan and Hunan Xinguo Real Estate Development Co., Ltd. Contract Dispute Case [(2019) Supreme Famin No. 304]] The main purpose of the judgment: if the security has been actually delivered to the creditor or the security has been changed and registered in the name of the creditor, and the publicity of the change of property rights has been completed, the creditor's status as the owner shall be denied according to the interpretation rule of "lifting weights to be clear and light", the validity of the security real right of the transfer and guarantee shall be recognized to a limited extent, and the creditor's right to receive the preferential payment of the price of the proceeds from auction, it is not only a respect for the autonomy of the parties, but also does not cause damage to the interests of other creditors of the debtor, reflecting the core value of the contract of transfer and security of the interests of both parties. After the establishment of the legal relationship between Xinguo Company and Zeng Fuyuan, the act of registering the advance purchase of commercial housing with the Contract for the Sale and Purchase of Commercial Housing constitutes the legal relationship between the concession and the guarantee contract. (II) Fang Ping's Case of Objection with Ji Zhongen and Liaoyang Longde Real Estate Development Co., Ltd. [(2019) Supreme Fa Min Shen No. 1832]] The main point of the judgment: Fang Ping recognized that the commercial housing sales contract signed with Lund Company was to guarantee the performance of Lund Company's debt of 10 million yuan borrowed from it, that is, the real intention of both parties was to provide guarantee for the loan between both parties with the house involved in the case. Fang Ping was not the real buyer of the house involved in the case, and both parties did not have a real housing sales relationship, but a guarantee legal relationship. The security right holder may participate in the distribution of the auction sale price of the security, claim priority payment to protect its legitimate rights and interests, but cannot exclude enforcement. (III) Hunan Loudi Jiancheng Real Estate Co., Ltd. and Li Xiaoling Bankruptcy Creditor's Rights Confirmation Dispute [(2019) Xiang Min Zhong No. 870]] The main point of the judgment: Jiancheng Company and Li Xiaoling signed the "Commercial Housing Sales Contract". After registering the 15 houses involved in the case in advance, Jiancheng Company cannot sell the houses involved in the case again or set up other rights. Therefore, the advance registration has exclusive effect and plays a certain role in publicizing changes in property rights. At present, Xianghua Company has not paid off its debts at maturity, and the creditor Li Xiaoling may enjoy the priority right of payment of the proceeds of the disposition of the house involved in the case by reference to the provisions of the law on security interests. Through the above-mentioned jurisprudence, it can be interpreted that after the registration of the house that will provide the guarantee, although the creditor does not have ownership of the house in question, but the proceeds of the disposition of the house in question have the right of priority compensation. However, some scholars and practitioners hold different views on this, that the completion of the change of property rights is one of the constituent elements of the transfer and security, only to meet the full constituent elements of the transfer and security can be called the transfer and security. With reference to the system of advance notice registration of real estate mortgage, the above situation is not enough for transfer and guarantee, that is, the advance notice registration of real estate mortgage cannot produce the legal effect of mortgage establishment, and cannot produce the legal effect of creditors enjoying the priority right of compensation to the mortgage. With reference to the real estate mortgage contract, even if the advance notice registration is made, it will not produce the effect of ownership change. The registration of housing advance notice is not the same as the registration of housing property rights, does not make the change of ownership of the house registered to the creditor's name, even if the advance notice registration does not constitute a concession and security, the lender (creditor) can not rely on this to buy and sell the subject matter of the contract of sale, sale, discount payment priority. Through the above analysis, it can be seen that the "net sign guarantee" which widely exists in the field of private lending is not the operation mode of legal real right guarantee in China. It is difficult for the lender (I. e. creditor) to realize the role of guarantee. The lender should fully consider the risks and treat it with caution.</中华人民共和国民法典>
2022-08-09
03
2022-08
Viewpoint... Help behavior is criminalized legislation to explore.
Interpretation of the Concept of Positive Crime of 1. Helping Behavior The term "helping to criminalize" has no corresponding expression in the criminal law of our country, which is born in the context of German and Japanese criminal law. The criminalization of helping acts in German and Japanese criminal law is similar to the "principal criminalization of accomplices" in our criminal law ". On the one hand, the legal provisions of principal and accessory in our country stipulate in articles 26 and 27 of the criminal law that "the principal offender plays the main role in the joint crime" and "the accessory offender plays the secondary or auxiliary role" have the function of conviction, while "punishment according to all crimes committed by the group" and "punishment should be given a lighter, mitigated or exempted" have the function of sentencing. However, the terms "primary", "secondary" and "auxiliary" used in the conviction provisions have the characteristics of ambiguity and uncertainty, which leads to an uncertain deviation in the specific conviction. If we directly follow the concept of principal and accessory in our country, the helping behavior that plays a secondary role in the joint crime is punished according to the accessory, it still can not solve the problem of the distribution of the facts in the joint crime. Joint crime solves the problem of factual attribution, that is, the problem of who bears the criminal act, while sentencing solves the problem of responsibility. Before putting all the facts of the crime together and attributing the facts of the crime to the actors in order to complete the accurate conviction, the theory of principal and accessory is directly used to discuss the sentencing problem, which can easily lead to the phenomenon of unfair judgment. The concept of "accomplice and principal offender" in German and Japanese criminal law takes the constituent elements as the classification standard, that is, the principal offender directly implements the constituent elements, and the accomplice (instigator and aider) indirectly implements the constituent elements. Although the concept of "accomplice of principal offender" in the context of criminal law in China has both the functions of conviction and sentencing, in the actual use process, its conviction function is often replaced by the function of "accomplice of principal offender". With the constituent elements as the core, all the behaviors that conform to the constitution of the crime are summarized as the positive offender, and the behaviors that contribute to the positive offender are summarized as the accomplices, on this basis, all persons involved in criminal acts are divided into principal and accessory offenders according to the division of labor and the degree of participation. From this point of view, the concept of accomplice of principal offender is used to complete conviction first, and then the concept of accessory of principal offender is used to complete sentencing. The "accessory of principal offender" in China uses both "accomplice of principal offender" as the conviction function and "accessory of principal offender" as the sentencing function, which is a perfect solution to the determination and sentencing of joint offenses. The Legislative Practice Basis of the Positive Crime of 2. Help The embodiment of the criminalization of the act of helping in the criminal law of (I) in 1997 There are as many as 48 crimes of facilitating the criminalization of acts, mainly in the public sphere. Through the analysis of the legislative reasons for the criminalization of helping behavior, it is found that most of the legislative phenomena are to make up for the legislative gaps that are new and have serious violations of legal interests in society. Before the act of helping is criminalized, some crimes can be punished through the theory of joint crime, but they are faced with the problems of difficulty in investigation, difficulty in obtaining evidence and inadaptability to crime and punishment, so they are given the status of criminalization and their legal punishment are improved. There are also some crimes because the act of helping is independent in the new era, and in the crime caused by the infringement of legal interests and social harm is even more serious than the positive, in order to better avoid the occurrence of such crimes, so the legislation will be as a positive crime. The following will elaborate on the legislative law of the positive crime of helping behavior. A Summary of the Legislation Law of the Positive Crime of 3. Helping Behavior The phenomenon of (I) positive crime mainly exists in the field of obstruction of social management order. The legal provisions on the criminalization of helping acts are mainly distributed in the chapter on the crime of disrupting the social management order, with a total of 26, accounting for more than 50% of the legislative crimes of the whole crime of helping acts. The social management order has become one of the main directions of concern for the criminalization of helping acts in the criminal law, which shows that the criminal law attaches great importance to the protection of social legal interests. Stable social security and good social order are not only the environment on which people depend for survival, but also an important external guarantee for people to improve their happiness index. The chaos and instability of social order will seriously affect people's lives. Facing the whole society, social legal interests have the characteristics of common and super-personal legal interests. With the maintenance of social legal interests, personal legal interests will be in a safe external environment, and personal legal interests will be further protected. Safeguarding social legal interests is the premise of protecting individual legal interests, and the protection of individual legal interests is the result of safeguarding social legal interests. Promoting the help behavior of related crimes in the social management order through the form of criminalization and punishing crimes in time can not only create a peaceful and orderly social environment for the survival of mankind, but also reduce the impact of social crimes on individual crimes. Cut off the chain of social crimes that breed individual crimes, reduce the occurrence of individual crimes, and create a good social order. The positive criminalization of (II) mainly exists in the "chain" crime. The "chain" crime is integrated before and after. The links in the chain are interrelated, but the links are independent. The completion of the behavior in front of the chain paves the way for the behavior in the back and helps the smooth implementation of the following links. Taking the financing of crimes against the state as an example, the act is generally closely related to other crimes against the state. The former act is the internal driving force of the latter act, and the latter act is the inevitable result of the former act. In order to reduce the occurrence of criminal acts endangering national security, the financing acts with greater legal interests at the front end of the criminal chain are defined as crimes; another example is the crime of transporting counterfeit currency, the act of transporting and the act of manufacturing, selling and buying counterfeit currency have formed a set of stylized criminal processes; another example is between the crime of money laundering and the crimes of drugs and underworld organizations. Money laundering is the downstream crime of these crimes and is the inevitable result, the existence of the crime of money-laundering will also breed the occurrence of upstream crimes; another example is the crime of rare and endangered wild animals, which has gradually formed a criminal chain of hunting, buying and selling, and the transportation behavior is essential to realize the criminal chain. If there is no transportation behavior, the purchase and sale behavior cannot be realized, and the hunting and killing behavior will become meaningless. There are many other crimes, and each crime link is related to other links. If there is no link, the whole crime will cease to exist. In general, the preceding behavior breeds the occurrence of the following behavior, while the latter behavior provides a broad market for the preceding behavior and also encourages the occurrence of the preceding behavior. The help link, but also before and after several acts run through, to promote the realization of the whole crime. Therefore, in the "chain" crime, each link plays an important role. Separately defining a certain link in the chain crime as a crime and promoting it as a positive offender is conducive to curbing the occurrence of crimes in other links. (III) positive offending behavior from "auxiliary" to "leading" role In the field of accomplice, helping behavior plays a facilitating role, relying on and adding to the behavior of the positive offender and producing the infringement of legal interests, and its effect and social harm are less than that of the positive offender. In the legislation of positive criminalization, although the act of helping is connected to other criminal acts, it is independent in itself and can be criminalized without relying on other acts. Helping behavior plays a leading role in the process of crime, determines the result of the whole crime, and helps behavior to have independent legal interest infringement. Taking the crime of helping information network criminal activities as an example, the object of help has changed from the "one-to-one" feature of traditional crime to the "one-to-many" feature. The unspecific nature of the object of help has infinitely expanded the occurrence of damage consequences, and made the law benefit infringement of help behavior tens of millions or hundreds of millions of times expanded, and the social harmfulness was gathered and strengthened, thus making it have independent law benefit infringement, even more than the offender. For example, the crime of providing intrusion and illegal control of computer information system programs and tools, the person who provides network system vulnerabilities and the person who writes Trojan horse software according to network system vulnerabilities are often personnel with different professional division of labor, and there is no criminal conspiracy between these personnel. The front and back behaviors are independent of each other, do not depend on each other, and do not establish accomplices. However, the front and back behaviors have huge legal interests and infringing, so on them, give punishment and avoid loopholes in punishment. 4. Summary In the traditional criminal model, aiding offenders are generally treated as "accomplices" and are subject to lighter, mitigated or exempt penalties compared to the principal offender in sentencing. However, in the new form of crime, the independent legal interest of helping the offender in the joint crime is far greater than that of the positive offender, in order to adapt to the crime and punishment, to make it positive, to give the legal status of the positive offender, so the act of helping the positive offender as a legislative phenomenon, has a certain degree of rationality.
2022-08-03
03
2022-08
There is a dispute in practice as to whether the assignee can claim interest after the transfer of financial non-performing claims. One view is that the transfer of financial non-performing claims should be determined by reference to the legal provisions and adjudication rules for the transfer of ordinary claims. Another view was that the transfer of financial non-performing claims must be distinguished from the transfer of ordinary claims, and the transferee could not claim interest after the date of transfer. Brief of the case On November 21, 2018, Jilin Jiangbei Sub-branch of Jilin Bank Co., Ltd. (hereinafter referred to as Jilin Jiangbei Sub-branch of Jilin Bank) signed a loan contract with the defendant Zhongcheng Separation Machinery Company. The loan period is 1 year, from November 21, 2018 to 2019 November 20. On November 21, 2018, the defendant through the financing guarantee company, Baide machinery company, Han Zhe, sun Xiaoming and Jilin Jiangbei sub-branch of Jilin bank respectively signed the "guarantee contract" numbered Jilin jiangbei sub-branch of Jilin bank co., ltd. No. 29-1, 29-2 and 29-3 in 2018, voluntarily assuming joint and several guarantee liabilities for the performance of all loan principal, interest and expenses under the loan contract of the defendant zhongcheng separation machinery company. On December 3, 2020, Jilin Bank Co., Ltd. (hereinafter referred to as Jilin Bank) and China Great Wall Asset Management Yinyuan Co., Ltd. Jilin Branch (hereinafter referred to as Great Wall Asset Company Jilin Branch) signed the "Jilin Bank 2020 (Third) Non-performing Assets Bulk Transfer (1 Package) Agreement". Transfer all the claims of Jilin Jiangbei Sub-branch of Jilin Bank to the defendants Zhongcheng Separation Machinery Company, Tongcheng Financing Guarantee Company, Baide Machinery Company, Han Zhe and Sun Xiaoming to Jilin Branch of Great Wall Assets Company, and Jilin Branch of Great Wall Assets Company will pay the transfer price, and on December 25, 2020 in the Financial Times published a joint announcement on the transfer of claims and debt collection of Jilin Bank Co. and China Great Wall Asset Management Co. On March 12, 2021, Jilin Branch of Great Wall Asset Company transferred all the creditor's rights involved in the case to the plaintiff, and signed the "Debt Transfer Agreement between Jilin Branch of China Great Wall Asset Management Co., Ltd. and Shanghai Chengfan Enterprise Management Partnership (Limited Partnership)", the plaintiff paid the transfer price, and on April 14, 2021, in the Financial Times, it was published that the Jilin Branch of China Great Wall Asset Management Co., Ltd. and Shanghai Chengfan Enterprise Management Partnership (Limited Partnership) joint announcement on the transfer of claims and debt collection of the claims involved in the case was collected. Relevant provisions The Supreme People's Court [2009] No. 19 "Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Creditor's Rights" (issued on April 3, 2009): "9. on the issue of interest charged by the transferee, the meeting held that the transferee's claim to the state-owned enterprise debtor The calculation base of interest should be based on the principal of the original loan contract; if the transferee claims the interest incurred after the transfer date of the bad creditor's transfer date to the state-owned enterprise debtor. However, if the contract for the transfer of non-performing creditor's rights is found to be invalid, the transferor shall pay interest at the same time as returning the principal amount of the transferee to the transferee, in accordance with the fixed deposit rate for the same period stipulated by the People's Bank of China. 12, With regard to the scope of application of the minutes, the meeting held that in the minutes, state-owned banks include wholly state-owned commercial banks, state-controlled commercial banks and state-owned policy banks; financial asset management companies include asset disposal consortia established by financial asset management companies such as Huarong, Great Wall, Dongfang and Cinda through formation or equity participation. State-owned enterprise debtors include wholly state-owned and state-controlled enterprise legal persons. The transferee refers to the legal person or natural person of the non-financial asset management company. The transfer of non-performing claims includes the transfer of policy and commercial non-performing claims of financial asset management companies. Policy non-performing claims refer to the non-performing claims acquired by the above-mentioned four financial asset management companies in 1999 and 2000 from the Bank of China, the Agricultural Bank of China, the China Construction Bank, the Industrial and Commercial Bank of China and the China Development Bank to pay the acquisition costs in the form of re-loans or financial guarantees under the unified arrangement of the state; commercial non-performing claims refer to the non-performing claims acquired by the above four financial asset management companies from Bank of Communications, Bank of China, China Construction Bank and Industrial and Commercial Bank of China under the leadership of government authorities from 2004 to 2005. Reply of the Supreme People's Court to the Request for Instructions on How to Understand the Minutes of the Meeting of the Supreme People's Court (2009) No. 19 (September 25, 2009 [2009] Min Er He Zi No. 21) "Yunnan Higher People's Court: Your Request for Instructions on How to Understand the Minutes of the Meeting of the Supreme People's Court (2009) No. 19" has been received. After research, the reply is as follows: the essence of the problem to be solved in the summary of the symposium on the trial of cases involving the transfer of financial non-performing creditor's rights (hereinafter referred to as the "summary") issued by our hospital on April 3, 2009 is how to solve and resolve the historical problems left over from the planned economy period. Its main purpose is to regulate the transfer of non-performing financial claims, maintain corporate and social stability, prevent the loss of state-owned assets, and protect national economic security. In accordance with the spirit and purpose of the Minutes, cases involving disputes over the transfer of financial non-performing claims by debtors of non-state-owned enterprises should also apply with reference to the provisions of the Minutes." The Supreme People's Court's Reply on Whether Non-financial Institutions Can Claim Full Creditor's Rights to Debtors of Non-state-owned Enterprises after Assigning Financial Non-performing Creditor's Rights (2013) "Hubei Provincial Higher People's Court:(1) Whether Non-financial Institutions Can Claim Future Interest from Debtors of Non-state-owned Enterprises in the Execution Procedure for Assigning Financial Non-performing Creditor's Rights Determined by Effective Legal Documents, it should be dealt with in the spirit of the" Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims by the Supreme People's Court. (2) According to Article 12 of the Minutes, the Minutes are not retroactive. Prior to the publication of the Minutes, if an institution or individual of a non-financial asset management company assigns a financial non-performing claim as determined by a legal instrument in force, or if the assigned financial non-performing claim is determined by a legal instrument in force, interest prior to the date of publication shall be calculated in accordance with the relevant legal provisions; interest shall not be accrued after the date of publication. After the publication of the Minutes, if an institution or individual of a non-financial asset management company assigns a financial non-performing claim determined by a legal instrument in force, the interest prior to the date of assignment shall be calculated in accordance with the relevant legal provisions; no interest shall be accrued after the date of assignment." legal analysis In this case, the claim is a financial non-performing claim, and after the transfer of the financial non-performing claim, can the transferee claim interest after the transfer? According to Article 9 of the Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims, the People's Court shall not support the assignee's claim to the debtor of a state-owned enterprise for interest incurred after the date of the transfer of non-performing claims. At the same time, Article 12 of the Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Credits has clear provisions on the scope of application of the minutes. The judicial policies involved in the minutes have their specific historical background and are specific to the specific time period. Special provisions are made for the transfer of financial non-performing claims by specific subjects. According to the facts of this case, the transfer of creditor's rights in this case occurred in 2020 and 2021. Jilin bank transferred the creditor's rights to Jilin branch of great wall assets company, and Jilin branch of great wall assets company transferred the creditor's rights to Shanghai chengfan partnership in March 2021. its specific form and time of occurrence do not belong to the policy bad creditor's rights stipulated in the minutes of the symposium on the trial of cases involving the transfer of financial bad creditor's rights, the provisions of the "Minutes of the Symposium on the Trial of Cases Involving the Transfer of Financial Non-performing Claims" could not be applied, so the plaintiff had the right to require the defendant Zhongcheng Separation Machinery Company to pay interest on the loan and interest on overdue payments in accordance with the provisions of the original contract. Lawyer Tips When acquiring financial non-performing claims, the transferee of financial non-performing claims should pay special attention to the relevant subjects and time of financial non-performing claims in order to determine a reasonable purchase price and avoid claiming that interest is not supported by the debtor.
2022-08-03
02
2022-08
引言 我国《刑法》第二百零五条规定了虚开增值税专用发票罪，从法律用语上来看，凡是“虚开增值税专用发票”的，即可构成本罪，将此种犯罪构成要件的类型界定为了行为犯。剖析本罪的立法目的，在于惩治虚开增值税专用发票骗取国家税款的行为，以保护两个重要的法益：国家对于增值税专用发票的管理秩序及国家的税收权。早期的司法实践中，犯罪分子虚开增值税专用发票通常是为了骗取国家税款，本罪法律条文用语的表达与罪犯的实际行为是不谋而合的。随着经济社会的发展，实践中出现了大量不以骗取国家税款为目的的虚开增值税专用发票的行为，便造成了法律规范所保护的法益与实际行为所侵犯的法益产生偏差，从而难以虚开增值税专用发票罪定罪处罚的情形，也引起了理论界针对此罪究竟为行为犯还是目的犯、危险犯的争议。 一 虚开增值税专用发票罪相关法律文件 1996年最高法发布《最高人民法院关于适用<全国人民代表大会常务委员会关于惩治虚开、伪造和非法出售增值税专用发票犯罪的决定>的若干问题的解释》，明确规定“虚开增值税专用发票”的行为包括：（1）没有货物购销或者没有提供或接受应税劳务而为他人、为自己、让他人为自己、介绍他人开具增值税专用发票；（2）有货物购销或者提供或接受了应税劳务但为他人、为自己、让他人为自己、介绍他人开具数量或者金额不实的增值税专用发票；（3）进行了实际经营活动，但让他人为自己代开增值税专用发票。该解释同时规定，“虚开税款数额1万元以上的或者虚开增值税专用发票致使国家税款被骗取5千元以上的，应当依法定罪处罚。” 2002年最高法发布《最高人民法院关于审理骗取出口退税刑事案件具体应用法律若干问题的解释》，其中第三条、第四条、第五条均提及“骗取国家税款”、“造成国家税款损失”的关键要素，即为法律所保护的国家税收权之法益。 2015年《最高人民法院研究室〈关于如何认定以“挂靠”有关公司名义实施经营活动并让有关公司为自己虚开增值税专用发票行为的性质〉征求意见的复函》指出，挂靠方以挂靠形式向受票方实际销售货物，被挂靠方向受票方开具增值税专用发票，不属于虚开增值税专用发票。即便行为人之间不存在挂靠关系，但行为人存在实际经营活动，无骗取税款的主观故意，未造成国家税款损失的后果，也不宜认定为虚开增值税专用发票。 2020年《关于印发<最高人民检察院关于充分发挥检察职能服务保障“六稳”“六保”的意见>The "Notice" mentioned that it is necessary to handle corporate tax-related cases carefully in accordance with the law, and grasp the boundary between general violations and crimes for the purpose of defrauding state taxes. If an enterprise has actual business activities for the purpose of falsely increasing performance, financing loans, etc., and does not cause state tax losses, it does not belong to the crime of falsely issuing special VAT invoices. 2 Practical Cases of the Crime of Falsely Issuing Special VAT Invoices and the Gist of the Judgment (I) Zhang sent back for retrial of innocent case [Issued by the Supreme People's Court: Typical Cases of People's Courts Giving Full Play to Their Trial Functions to Protect Property Rights and the Legitimate Rights and Interests of Entrepreneurs (Second Batch)]] Summary of the case: In 2004, the defendant Zhang Mouqiang partnered with others to set up an individual enterprise, a dragon bone factory, and Zhang Mouqiang was responsible for production and business activities. Because a dragon bone factory is a small-scale taxpayer and cannot issue a special VAT invoice for the purchasing unit, Zhang Mouqiang signed a sales contract in the name of Xinyuan Company run by others. From 2006 to 2007, Zhang Mouqiang successively signed light steel keel sales contracts with six companies. The purchasing units all remitted the payment to Xinyuan Company's account. Xinyuan Company also issued a total of 53 special VAT invoices for the above six companies, with a total price and tax of 4457701.36 yuan and a tax of 647700.18 yuan. Based on the above facts, the people's Procuratorate of a certain state and city accused the defendant Zhang of falsely issuing special VAT invoices. The main purpose of the judgment: The Supreme People's Court found that the defendant Zhang Mouqiang signed a sales contract in the name of another unit, and the unit collected payment for goods and issued special VAT invoices. It did not have the purpose of defrauding state taxes and did not cause state taxes. Loss, his behavior does not constitute the crime of falsely issuing special value-added tax invoices. The people's court of a state and city found that Zhang Mouqiang constituted the crime of falsely issuing special value-added tax invoices was an applicable legal error. (II) Wang Chao's retrial commuted to no-crime case [(2021) Lu Xing No. 4]] Summary of the case: The defendant in the original trial, Wang Chao, was an employee of Company A and also had his own truck transportation business. It undertakes the transportation business from Company A and transports well cement to Company B and C. Because the settlement freight needs to issue transportation invoices with tax deduction function for Company B and Company C, at first the defendant Wang Chao issued invoices from the tax authorities, and the invoicing tax rate was 5.8. From June 2010 to December 2010, Ding Company, which was set up by Guo Mou, issued transportation invoices of 2396828 yuan one after another. Ding Company paid taxes to Yiyuan Local Taxation Department according to the face value of the transportation invoices issued, and Wang Chao paid the invoice fee of 4.6 to the company. After Wang Chao handed over these transportation invoices to Company B and Company C, Company B and Company C used the above invoices to deduct tax 167777.96 yuan. The main point of the judgment: the defendant Wang Chao provided the real transportation business, there was no act of falsely issuing special VAT invoices without real goods transactions, and the special VAT invoices issued were issued according to the real freight amount. The purpose of invoicing is to settle freight with the receiving unit, not to offset tax. Defendant Wang Chao subjectively did not have the criminal intention to defraud the tax deduction. Objectively, he neither used it to deduct the tax by himself nor allowed others to illegally deduct the state tax by using it. He did not cause the loss of the state tax and did not constitute the crime of falsely issuing invoices for tax deduction. (III) Choi Chi-cheung's retrial commuted to no-crime case [(2017) Lu 02 Xing Zai No.2]] Summary of the case: Cui Zhixiang, Cui Baoyou and Company A signed a contract for the transportation of goods. Cui Zhixiang originally issued a transportation invoice at the local tax bureau and provided it to Company A. The invoicing tax rate was 5.8. Later, from June 2010 to March 2011, Cui Zhixiang went to Company B run by Guo Ying to issue 1608270 yuan's transportation invoices one after another. Cui Zhixiang paid the company a 4.6 tax rate for the invoice. Cui Zhixiang handed over these transportation invoices to Company A, which deducted 112578.9 yuan's tax with the above invoices. The main purpose of the judgment: the act of finding others to issue invoices on behalf of others without the purpose of tax fraud cannot be compared with the social harmfulness of false criminal acts for the purpose of tax fraud. therefore, under the circumstances that it cannot be proved that the defendant has the intention to defraud tax deduction or help others to defraud tax deduction, the act of finding other companies to issue invoices on behalf of others does not conform to the original intention of the legislation, nor conforms to the principle of the principle of subjectivity, nor conforms to the principle of objectivity and the principle of crime. 3 The reasonable limitation of the elements of this crime. From the above-mentioned relevant legal documents and precedents, it can be seen that the constituent elements of the crime of falsely issuing special VAT invoices not only include the act of falsely issuing, but also require the actor's act of falsely issuing with the subjective intention of defrauding state taxes. The intention, together with the consequences of the loss of state taxes, has become the judgment standard for the crime of falsely issuing special VAT invoices. If we only explain the provisions of the criminal law by means of literal interpretation, it will make the scope of the crime of falsely issuing special VAT invoices appear unreasonable expansion, resulting in the pre-administrative illegal act of falsely issuing special VAT invoices being included in the scope of the criminal law, which violates the principle of legally prescribed punishment for a crime and the modesty of the criminal law. Only by adopting the method of purposive interpretation and restricting the meaning of the provisions of the criminal law to the purpose can we avoid the divergence between the criminal acts punished by the criminal law and the legal interests protected, prevent objective imputation, and realize the unity of the subjective and objective in essence. 4 Conclusion After the crime of falsely issuing special VAT invoices is included in the criminal law, it plays an important role in protecting the security and stability of national taxation. After a long period of economic development in China, the external environment of the market has changed, and the awareness of the rule of law of market participants has also been improved to varying degrees. As the Central Committee of the Communist Party of China and the State Council's "Opinions on Improving the Property Rights Protection System and Protecting Property Rights in accordance with the Law" clearly requires, "Strictly follow the principles of non-retroactivity of the law, legality of crimes and punishments, and lightness between the old and the new, and objectively treat and treat them in accordance with the law. Properly handle the irregularities in the operation of various enterprises, especially private enterprises, since the reform and opening up." In practice, attention can be paid to the following adjudication rules: enterprises have actual production and business activities, and for the purpose of falsely increasing performance, financing, and "leveling" accounts, they falsely issue special VAT invoices without deduction, and do not cause tax losses. The crime of falsely issuing special VAT invoices is punished; in the affiliated relationship, the affiliated person operates in the name of the affiliated person, and the affiliated unit issues special VAT invoices, it does not have the purpose of defrauding state taxes, and has not caused state tax losses, and its behavior should not be punished as the crime of falsely issuing special value-added tax invoices; in addition, if there is a real transaction but it cannot fully correspond to the special value-added tax invoices, it is also inappropriate The crime of falsely issuing special VAT invoices. In short, judicial practice should look at tax-related crimes from a developmental perspective, rather than stagnating in the behavioral-only sense of adjudication, avoiding improper punishment and arbitrary expansion of penalties. </最高人民检察院关于充分发挥检察职能服务保障“六稳”“六保”的意见></全国人民代表大会常务委员会关于惩治虚开、伪造和非法出售增值税专用发票犯罪的决定>
2022-08-02
02
2022-08
Abstract: The right of exclusion refers to the right of priority payment for a particular property of an insolvent enterprise in insolvency proceedings because the creditor has a security right or other legal special priority in the particular property of the insolvent enterprise. From the point of view of the limited property of the bankrupt enterprise, there is a zero-sum game between the ex-right holder and the ordinary creditors. From a practical point of view, most of the property of the bankrupt enterprise is guaranteed, and the bankruptcy law is almost for the ordinary creditors. There is no effect, which is contrary to the common benefit of the bankruptcy law as an "atypical private law" that takes into account the interests of all parties. The purpose of this paper is to analyze the characteristics of the right of exclusion, compare the provisions of various countries on the basis of the right of exclusion, from a practical point of view, the bankruptcy law of our country on the restriction of the right of exclusion of some thinking and put forward some suggestions. Keywords: Bankruptcy Law Exemption Legal Priority Restriction. The Concept and Characteristics of 1. Exemption The right of exclusion refers to the right to priority payment of a particular property of the debtor (I. e. the insolvent enterprise) in insolvency proceedings because the creditor has a security interest or other statutory special priority in the particular property of the debtor (I. e. the insolvent enterprise), which may not be subject to the insolvency proceedings. [1] The system of exclusion was first established in the bankruptcy laws of civil law countries and was perfected with the development of relevant legislation. Most scholars believe that the essence of the right of exclusion is that the property security system in civil law is embodied in the bankruptcy law, and is the specific name of the security right in the bankruptcy legal system. The author summarizes the specific characteristics of the exclusion right into the following points. First, the source of the right of exclusion is the security right and the statutory special priority. The right of exclusion is not a new right established by the bankruptcy law, but the mapping and application of the security law, the security interest and other legal special priorities stipulated by the law of real right in the bankruptcy legal procedure, in which the security interest is the mortgage, pledge and lien stipulated by the property law of our country, and other legal special priorities are directly set by law for the fair protection of some special interests, there are mainly the priority of ships under the Maritime Law, the priority of aircraft under the Civil Aircraft Law, the priority of construction project price under the Contract Law, and the priority right of consumers to pay for the purchase of houses. Second, the exercise and realization of the right of exclusion is aimed at the specific property of the bankrupt enterprise. First of all, the specific property should be clearly owned, is the property in the name of the bankrupt enterprise, the bankrupt enterprise enjoys ownership, belongs to the bankruptcy property. Secondly, the specificity of a particular property, the name, scope, type, etc. of the property must be specified by the security contract, or the specific property can be inferred by the law, in general, the specific property is one or more of the property of the bankrupt enterprise, rather than all the property under the name of the bankrupt enterprise. Third, the independence of the exercise and realization of the right of exclusion. A basic principle of insolvency law is the collective settlement of all claims, I .e., all claims are settled uniformly from the proceeds of the realization of the property of the insolvent enterprise, and national insolvency laws also explicitly prohibit individual settlements in insolvency proceedings. However, the exercise of the right of exclusion is the exception of collective compensation in the bankruptcy law, because the purpose of its establishment is to protect the interests of special creditors in the bankruptcy procedure, to ensure the realization of their security interests or other legal special priority, and the right of exclusion is aimed at the specific property of the bankrupt enterprise, whether the property is disposed of in advance or not does not affect the interests of other creditors in theory, so the right of exclusion can not be restricted by the bankruptcy procedure [2], realize and be paid separately for specific property under other laws, such as property law. Fourth, the priority of the exercise and realization of the right of exclusion. Another basic principle of bankruptcy law is the equal settlement of all claims, and in the case of ordinary claims, they must be settled in the same proportion, and in the absence of special circumstances, the property shall not be distributed in excess of the proportion. The priority of the right of exclusion is to break through the principle of equal settlement of the bankruptcy law, because the right holder is the security right holder or legal priority holder of the specific property of the bankrupt enterprise, so the price of the realization of the specific property can be paid in priority to other creditors, China's bankruptcy law even provides that the bankruptcy costs and common benefits of debt. China's current bankruptcy law does not directly use the concept of the right to exclude, but extends the concept of creditors with property security in the civil law. In the new bankruptcy law implemented on June 1, 2007, it is clearly stipulated that creditors with security rights to the specific property of the bankrupt shall have the priority of compensation for the specific property, such as Article 37 and Article 109 [3], which to a large extent reflects the recognition of the right to exclude, however, the provisions of China's bankruptcy law on the right of exclusion are still in the basic stage, and there is no comprehensive and detailed provision for the right of exclusion. Jurisprudential Study of 2. Restrictions on Exclusion There is an obvious conflict between the security system in civil law and the bankruptcy law in terms of legislative purpose, legal purpose and value orientation. The legislative value orientation of the security right system is to ensure that the creditor's claim of the security right is paid in priority to the value of the secured property [4], which plays a positive and effective role in urging the debtor to keep its promises, ensure the security of transactions and maintain market order in economic activities. The real right guarantee system, which arises from the normal economic activities, derives the right of exclusion after encountering the bankruptcy system, and the right of exclusion has a strong impact on the purpose, principle and application of the bankruptcy law, making the order of liquidation of the specific security property of the bankrupt enterprise become special and complicated. The value conflict between the exclusion right and the bankruptcy law, from the point of view of the limited property of the bankrupt enterprise, there is a zero-sum game between the exclusion right holder and the ordinary creditors, the number of cakes is limited and determined, and the distribution of cakes directly leads to the change of interests, profit and loss are closely linked. From the characteristics of the general execution of the bankruptcy procedure, when the enterprise does not enter the bankruptcy procedure, the exercise of various private rights in the civil law will not conflict in the legal treatment according to their own legal provisions, but after the enterprise enters the bankruptcy procedure, because all kinds of claims need to be generally executed in the bankruptcy procedure, that is, the bankrupt enterprise should use all the debtor's property to pay off all the payable claims in accordance with the unified procedure, at this time, many civil law rights will have the problem of conflict, so that the bankruptcy law in the distribution of limited property to make a choice, the most typical is the conflict between the right to remove the right and ordinary creditors. As Professor Xu Defeng's classic statement: in bankruptcy proceedings, the realization of the right of exclusion, that is, the realization of the security right, not only requires the formulation of a large number of fine and complex technical specifications, but also needs to make a choice and difficult value consideration. [5] Some scholars believe that bankruptcy law, as an "atypical private law" [6], needs to take into account the public interest in the face of various private rights in civil law, and make appropriate fine-tuning or even reordering of the levels of private rights. For this point of view, the author is deeply convinced. First of all, fairness is one of the basic values of law, but it is very difficult to achieve absolute fairness in law. On the road of perfecting legal fairness, it is inevitable to restrict individualism and sacrifice individual interests. In bankruptcy proceedings, when the interests of a small number of ex-rights holders and the interests of the majority of creditors or even social public interests conflict, if the interests of the former are fully protected, it is bound to harm the interests of a large number of ordinary creditors, and it is also easy to cause the bankrupt enterprise to combine the use of the ex-rights system, the radical development of the limited liability system, the transfer of assets, etc., resulting in the impairment of social public interests. Therefore, the principle of legal fairness and justice should tend to protect the interests of most ordinary creditors or social public interests. In addition, in some bankruptcy cases in which the author participates in practice, most of the property of the bankrupt enterprise is guaranteed, including not only real estate such as land and houses, but also movable property such as machinery and equipment. In this case, the bankruptcy law has almost no effect on ordinary creditors, but it has become a tool for the distribution of benefits among the ex-rights holders. Therefore, no matter from the perspective of legal theory or bankruptcy practice, the bankruptcy law should adjust the rights and obligations of the security right holder, impose necessary restrictions on the right of exclusion, and weaken the strong position of secured claims against unsecured claims, such as the establishment of a suspension of the exercise of the right of exclusion or security in the settlement and reorganization proceedings, in order to balance the interests of the right holder and ordinary creditors, reflecting the fairness and justice of the law. In the bankruptcy laws of the main civil law countries, there are restrictions on the right of exclusion, and it has become a new trend in the development of bankruptcy law in various countries, which also constitutes the biggest difference between the right of exclusion in modern bankruptcy and the right of priority compensation in civil and commercial matters in non-bankruptcy proceedings. For example, in chapter IV, "Administration and Realization of the Insolvency Property", section III, "Subjects with Exemption Rights", of the German Insolvency Law [7], the management of the subject of the Exemption Rights, the subject of the auction, the term of the term, and the order of settlement of the variable price are clearly defined, which better balances the relationship between insolvency proceedings and the Exemption Rights. Although the new Japanese Bankruptcy Law eliminates the special chapter on the right of exclusion, in its Chapter VII, "Realization of the Insolvent Consortium", it also provides for the subject matter of the property of the right of exclusion, the exercise of the right of exclusion and its constraints. Germany and Japan are representative countries of the civil law system, and their bankruptcy laws set many restrictions on the exercise of the right of exclusion, which can effectively prevent the interests of ordinary creditors from being damaged by the excessive rights and interests of the right holders, while maximizing the efficiency of bankruptcy proceedings. The proposal of the 3. to restrict the right of exclusion in the bankruptcy law of our country. China's current bankruptcy law does not directly use the term "exclusion" in the bankruptcy law of civil law countries, but uses the common law system-property-secured claims. Compared with foreign bankruptcy laws, China's bankruptcy law is still not enough to regulate property-secured claims, I .e., the right to exclude them. The author summarizes the restrictive provisions of China's current bankruptcy law on the right of exclusion into the following points and makes a brief assessment or supplementary suggestions. First, it provides for the administrator's right of avoidance for a particular security act. Article 31 of the bankruptcy law stipulates that if the people's court provides property security for debts without property security within one year before accepting the bankruptcy application, the administrator may request the people's court to revoke it. This provision applies only to the act of additional property security on the principal obligation, I .e. where the principal obligation is established before and the property security right is established after, and where the property security right is formed at the same time as the principal claim, the administrator has no right of avoidance. However, in economic trade or financial financing, the vast majority of property security rights are formed at the same time as the main claim, so the author suggests that the provision be amended to all acts of external property security within one year prior to the bankruptcy application. Second, provide for a system for the retrieval of pledges and liens. Article 37 of the insolvency law provides that the administrator may retrieve the pledge, the lien, subject to the satisfaction of the debt or the provision of new security. As far as the author's bankruptcy business practice is concerned, in bankruptcy proceedings, the pledgee and lien can realize the pledge and lien at any time, and will generally realize quickly to reduce their own losses, which will easily cause the realization value of the pledge and lien to be lower than the market price, thus harming the interests of ordinary creditors. Therefore, the author suggests that the administrator be given the right to take back the pledge and the lien, that is, the administrator comprehensively considers the pledge, the condition of the lien and the cost of taking back, and applies to the court or the creditor committee to take back the pledge and the lien under the ex-right without harming the interests of the ex-right holder, so as to realize the overall price of the bankruptcy property and maximize the value of the bankruptcy property. Third, it provides for the premise of the exercise of the right of exclusion-the declaration of claims and the review system. According to the provisions of Articles 48, 49, 57 and 59 of the bankruptcy law [8], all creditors must declare their claims to the administrator, which shall be examined and confirmed by the administrator. Those who fail to declare their claims shall not be recognized as creditors, and shall not enjoy the right to attend and vote at the creditors' meeting, and their priority in the compensation of the secured property is even more impossible. This provision essentially identifies the nature of the exclusion right, that is, the exclusion right should first be an insolvency claim, and the exclusion right holder should be not only a security right holder, but also a creditor. However, in the case where the ex-right holder is only the creditor of the non-principal debt relationship of the security right holder, the declaration and review system of the claim of the ex-right holder is not clearly stipulated in the bankruptcy law of our country, and it is easy to cause confusion in judicial practice, so the author suggests that the judicial interpretation of the situation be made clear. Fourth, it provides for a system of suspension of the exercise of the right of exclusion. Article 19 of the Bankruptcy Law provides for a stay of execution regime, articles 75 and 96, paragraph 2, provide for the suspension of the exercise of security interests in reorganization proceedings and conciliation proceedings, respectively, and in conjunction with article 111 of the Bankruptcy Law and article 3 [9] of the Judicial Interpretation II of the Bankruptcy Law, the administrator's right to realize the secured property may be introduced. However, whether the exercise of the right of exclusion should be suspended under the bankruptcy liquidation procedure is not clearly stipulated in the bankruptcy law. Combined with the independence of the exercise of the right of exclusion and the principle of freedom without prohibition in civil law, if the ex-right holder requires priority payment of the secured property before the bankruptcy property is changed in value or distributed, the administrator has no strong legal defense, even if the bankruptcy law gives the administrator the right to realize the secured property. Therefore, the author suggests that the suspension system of the right of exclusion under bankruptcy liquidation should be clearly stipulated, and the administrator should be given the right to control the realization time of the secured property, so as to promote the bankruptcy liquidation procedure in an orderly manner and ensure the maximization of the value of the bankruptcy property. Fifth, it provides for the basis of the right of exclusion. Article 109 of the bankruptcy law provides that the right of exclusion is based on the real right of property security, and the right holder is the creditor with property security. However, in our legal system, there is some statutory special priority, as mentioned above, and the right of statutory special priority comes from the direct provisions of the law. In the practice of bankruptcy, the current judicial point of view will be the statutory special priority as a separate right, its exercise and realization of the way is no different from the separate right, but China's current bankruptcy law on the statutory special priority is not mentioned, the basis of the emergence of the separate right is not a bottom-up provisions. Therefore, the author suggests that the bankruptcy law of our country should introduce the concept of the right to separate, perfect the right basis of the right to separate, in order to reflect the scientific rigor of bankruptcy legislation. Comments: [1] Wang Xinxin, "Research on the Theory and Practice of Exemption in Bankruptcy", Political and Legal Forum, No. 1, 2007. [2] Fan Jian and Wang Jianwen, Bankruptcy Law, Beijing: Law Press, 2009, p. 146. [3] See article 37 of the the People's Republic of China Enterprise Bankruptcy Law. [4] Xu Jie, "The Function of Security Rights", Beijing: Law Press, 2006, p. 62. [5] Xu Defeng: "On the economic significance of security interests and the absence of our bankruptcy law" [J]. Tsinghua Jurisprudence, 2007,(3). [6] Zou Hailin and Zhou Zexin, "New Developments in Bankruptcy Law", China Social Sciences Press, 2013, pp. 15-18. [7] Li Fei, ed., "Contemporary Foreign Bankruptcy Law", China Legal Publishing House, 2006 edition, pp. 68-71. Unless otherwise stated, the provisions on foreign insolvency law referred to in this article are derived from that version. [8] See the relevant provisions of the the People's Republic of China Enterprise Bankruptcy Law (effective June 1, 2007), from which the following provisions of our bankruptcy law are derived, unless otherwise stated. [9] See the relevant provisions of the (II) of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Enterprise Bankruptcy Law, which, unless otherwise stated, the provisions of China's bankruptcy law mentioned herein are derived from that judicial interpretation. References: [1] Wang Xinxin, "Research on the Theory and Practice of Exemption in Bankruptcy", Political and Legal Forum, No. 1, 2007. [2] Fan Jian and Wang Jianwen: Bankruptcy Law, Beijing: Law Press, 2009
2022-08-02
01
2022-08
Viewpoint... A preliminary analysis of the dissolution path of the partnership.
The relevant legal provisions of the dissolution of the 1. partnership. Article 85 of the the People's Republic of China Partnership Law shall be dissolved under any of the following circumstances: (1) upon the expiration of the partnership period, the partners decide not to operate any more; (II) the reasons for dissolution stipulated in the partnership agreement appear; All partners of the (III) decide to dissolve; (IV) partners have not had a quorum for 30 days; (V) the partnership purpose stipulated in the partnership agreement has been realized or cannot be realized; the (VI) is revoked its business license, ordered to close down or revoked according to law; (VII) other reasons stipulated by laws and administrative regulations. Litigants in a 2. partnership dissolution action With reference to Article 4 of the Judicial Interpretation II of the Company Law, the plaintiff who initiated the dissolution of the partnership shall be a partner of the partnership, the defendant shall be the partnership, and the other partners shall participate in the litigation as the third party in the case. 3. the statutory circumstances of the dissolution of the partnership. The dissolution of the partnership in the case of the dissolution of the partnership in the (I) of the partnership agreement. The first (II) of the legal situation of dissolving the partnership (IV) the (V) situation summarizes the cases and opinions of local courts. The reason for dissolution stipulated in the partnership agreement appears. What is required is that the partnership agreement signed by all partners clearly stipulates the dissolution of the partnership enterprise. However, if the dissolution stipulated in the partnership enterprise occurs during the operation of the partnership enterprise, the dissolution of the partnership enterprise is applied. In the absence of an express agreement on the dissolution of the partnership, the purpose of dissolving the partnership cannot be achieved simply by dissolving the partnership agreement. [(2019) Supreme Court Min Shen No. 5588] The Supreme People's Court held that the key to whether Jushan Company's application for retrial in this case can be supported lies in whether it can withdraw from the partnership enterprise by exercising the legal right of rescission stipulated in the fourth paragraph of Article 94 of the Contract Law and rescind the Partnership Agreement. The essence of the claim in this case is to make itself withdraw from the partnership and recover its capital contribution. However, Jushan Company became a limited partner of Le Yu Chuang Investment by way of partnership, and then 12 partners, including Jushan Company, jointly signed the "first restated and revised Partnership Agreement" (the restatement and revision of the partnership agreement on May 19, 2015, hereinafter referred to as the "Partnership Agreement") on May 26, 2015, and revised the "Partnership Agreement" on the 19th of the same month. The Partnership Agreement is not an entry agreement for Giant Sequoia. The acquisition of partner status by Giant Sequoia is based on the consent of the other original partners and the partnership agreement, rather than the Partnership Agreement signed after the partnership. Therefore, even if the Partnership Agreement is dissolved, it cannot deny the fact that it has previously joined the Le Yu Venture Partnership by signing an agreement and obtained the status of a partner. On this basis, the court of first instance found that after the company entered the partnership, whether it could withdraw from the partnership should of course be judged by the Partnership Law rather than the Contract Law. And if the company is allowed to withdraw from the partnership without the special provisions of the Partnership Law on withdrawal and dissolution, it may harm the rights and interests of other partners, partnerships and partnership creditors. Accordingly, the court of first instance rejected the claim of Jushan Company in this case, which has the corresponding factual and legal basis. The original court also held that if Jushan Company believes that its legitimate rights and interests have been infringed, it should be resolved through other legal channels. The retrial applicant Jushan Company's request to revoke the original judgment lacks grounds, and this court will not support it. Usually at the stage when the partners sign the partnership agreement to form the partnership, most partners do not fully foresee the contradictions in the course of the partnership's operation, so there are few cases in which the partnership agreement expressly provides for the dissolution of the partnership. In this regard, most partners usually choose to dissolve the limited partnership through the provisions of Article 85, paragraph (V), of the Partnership Law or after the removal of the general partner because the partnership does not have a general partner, in accordance with Article 85, paragraph (IV), of the Partnership Law. A limited partnership with one GP and more than two LP (II) shall be dissolved after the resolution to remove GP according to law is made because the partnership has no general partner and does not meet the number of requirements stipulated in the partnership law. The number of partners stipulated in Article 85 of the Partnership Law no longer has a quorum of 30 days. It is usually applicable to a limited partnership with one GP and two or more LP when GP intentionally or grossly negligently causes losses to the partnership or executes partnership affairs due to improper acts during the period when GP is the managing partner. After unanimously deciding to remove GP from the name, the partnership has no general partner, dissolution of a partnership if the quorum conditions under the Partnership Act are not met. See Case (2018) Guangdong 0391 Minchu No. 255 "In accordance with the relevant provisions of China's Partnership Law, a limited partnership shall have at least one general partner, and if the limited partnership has only limited partners, it shall be dissolved. In this case, if the defendant is removed, the third party has only one partner and is a limited partner, which will result in the third party not having the legal requirements for the establishment and survival of the partnership, losing the legal characteristics of" partnership ", and may trigger the legal consequences of the dissolution of the third party. The Court believes that Article 85 of the Partnership Law stipulates that if the partners have not had a quorum for 30 days, the partnership shall be dissolved. In a partnership with only two partners, the partners of the partnership do not have a quorum after one partner is removed, and the legal characteristics of" partnership "are lost. The partnership is in a temporary illegal existence state, which may not only exist legally due to the addition of new partners, but also may be dissolved because the partners do not have a quorum to reach the legal period, so the partnership is not necessarily dissolved, dissolution depends on the presence or absence of a new partner, in this case the new partner is the new general partner. According to basic law, how the legal effect is only a reference factor for judging civil legal acts or civil adjudication acts is usually not a key factor in determining whether civil legal acts or civil adjudication acts should be made. Therefore, the proper exercise of the partner's right to remove the name, even if it may cause the partnership to temporarily lose the legal characteristics of" partnership ", or even lead to the dissolution of the partnership, can not be a legitimate cause to block the exercise of the right. The legal effects produced by the de-listing have corresponding relief treatment paths and do not affect the legal exercise of the right to de-listing." Article 49 If a partner has any of the following circumstances, he may be removed by resolution with the unanimous consent of the other partners: (1) Failure to perform the obligation of capital contribution; (II) cause damage to the partnership due to intentional or gross negligence Losses; improper behavior of the (III) in the execution of partnership affairs; (IV) the reasons agreed upon in the partnership agreement occur. 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. In the case of delisting under Article 49, paragraph (I) provides that the partners have not fulfilled their capital contribution obligations in full, and if the partners have partially fulfilled their capital contribution obligations, the provision cannot be applied to require the delisting of the partners, the specific reasons are not repeated herein. The second (II) is common in cases where the executive partner disposes of the property of the partnership without a unanimous resolution of the partners, such as the unauthorized release of the security of another person's claim to the partnership without a unanimous resolution of the partners or the provision of security without a unanimous resolution of the partners. In the (III) case, it is common to have the assets of the partnership transferred or diverted for other purposes by the executive partner. Dissolution of a partnership (III) the purpose of the partnership agreed upon in the partnership agreement has been achieved or cannot be achieved. Although the law allows judicial intervention in the deadlock of the company or partnership, the court is generally modest and cautious about the application of the judicial dissolution system. According to the reasons of the court's judgment, the court usually considers the following factors when deciding whether to judicially dissolve the partnership: the number of partners and the number of partners applying for judicial dissolution, the size of the share of partners applying for judicial dissolution, and whether the partnership has initiated foreign investment, whether the partnership is still in normal operation, whether the partnership still has foreign investment projects that have not been withdrawn, etc. See the following case: Not supporting the case Jiangsu Higher People's Court (2016) Su Minshen No. 5202 "After examination, the court found that Qu Wenshan's retrial request could not be established. Reason: 1. The mutual delisting between Qu Wenshan and Wei Mingwen has come into effect and the judgment is invalid. 2. According to the partnership agreement of the partnership involved in the case, the purpose of the partnership is to invigorate the market economy and facilitate the masses, and the operating period is long-term. Although Qu Wenshan, as a partner, has not participated in the operation of the fulcrum firm since January 2014, and there are disputes with Wei Mingwen, the fulcrum firm is still operating normally, so there is no situation where the partnership purpose cannot be realized. During the litigation of this case, Qu Wenshan said that he was not willing to continue the partnership operation, while Wei Mingwen said that he was willing to continue the partnership operation. Qu Wenshan and Wei Mingwen contributed 10% and 90% respectively to the fulcrum office. The partnership agreement of the partnership involved in the case also stated that the partnership could be dissolved under the condition that all the partners decided to dissolve. Accordingly, the second-instance judgment held that the dissolution of the fulcrum office is not the only way to solve the contradiction between Qu Wenshan and Wei Mingwen. Qu Wenshan can choose to withdraw from the partnership according to law, which does not affect his legitimate rights and interests, and can also make the fulcrum office continue to exist, which is legal and correct. 3. The post-divorce property dispute between Wei Mingwen and Han Kun is in litigation. Qu Wenshan claims to dissolve the fulcrum office on this ground, which lacks factual basis. 4. The fulcrum office stated that it had initiated administrative reconsideration on the punishment decision No. [2015]15 of the State Intellectual Property Office, and the business scope of the fulcrum office included other intellectual property agency affairs in addition to patent agency. Therefore, Qu Wenshan claimed to dissolve the fulcrum office on this ground, which lacked factual basis." The People's Court of Yinzhou District, Ningbo City, Zhejiang Province (2019) Zhejiang 0212 Minchu No. 17230 Court held that "the purpose of the partnership between the plaintiff and the third party is to undertake the management and operation of the established equity investment center for the partnership in accordance with the provisions of the Partnership Agreement, and the scope of business of the partnership is equity investment. Based on the debt performance determined by the effective judgment of the third party, the litigation of the plaintiff and the third party, the freezing of the equity of the third party in the defendant, the fact that the third party has been listed as a dishonest person to be executed, and the qualification of private equity fund manager has been canceled on May 3, 2016, the court believes that the defendant has been unable to continue to manage and operate in the field of equity investment. According to the available evidence, in fact, the defendant has not carried out business activities for about five years since its establishment. Moreover, the partnership pays attention to the human nature, but the plaintiff and the third person as two partners, the contradiction between the two sides is obvious, can not reach an agreement on the operation, can not achieve the purpose of the partnership. The defense opinions of the defendant and the third party on the liquidation of partnership affairs and the freezing of shares, except for further proof that the partners have lost the basis of the partnership and the purpose of the partnership can no longer be realized, are all liquidation issues at the time of the dissolution of the partnership. According to the provisions of Articles 35 and 36 of the Partnership Agreement and the provisions of Chapter 4 of the Partnership Law on liquidation, the defendant shall be liquidated when dissolved, and the creditors shall be notified and announced to declare their creditor's rights; after paying off debts, distributing property and liquidating according to regulations, the defendant may prepare a liquidation report by the liquidator, and submit the liquidation report to the enterprise registration authority within 15 days after being signed and sealed by all partners, apply for the cancellation of the partnership registration." Similar cases include Hangzhou Jianggan District People's Court (2019) Zhejiang 0104 Minchu No. 6 Civil Judgment and (2013) Zhejiang Taishang Zhongzi No. 580 Civil Judgment. Conclusion In addition to the way to withdraw from the partnership, partners can withdraw from the partnership through litigation to dissolve the partnership. This paper explores the way to dissolve the the People's Republic of China partnership through the analysis of the reasons for the dissolution of the partnership stipulated in Article 85 of the Limited Partnership Law. In addition, partners can also consider according to Article 45 of the the People's Republic of China Partnership Law "If the partnership period is agreed upon by agreement, during the existence of the partnership, A partner may withdraw from the partnership under any of the following circumstances: (1) the reason for withdrawal as agreed upon in the partnership agreement appears; the (II) is unanimously agreed upon by all the partners; the reason (III) it is difficult for the partners to continue to participate in the partnership occurs; (IV) the other partners have seriously violated their obligations under the partnership agreement." Choose the path to exit from the partnership through withdrawal litigation.
2022-08-01
27
2022-07
According to the 2022 China Corporate Payment Survey released by Coface, 53% of the companies surveyed experienced late payments in 2021, down from 57% in 2020. However, the average time to late payments rose from 79 days in 2020 to 86 days in 2021. The construction industry still has the longest overdue payment period of 109 days. In addition, the proportion of surveyed enterprises with ultra-long overdue payments accounting for more than 2% of annual turnover has increased significantly, from 47% in 2020 to 64% in 2021. Among them, the industry with the highest proportion of enterprises with long overdue payments accounting for more than 10% of annual turnover is also the construction industry (56%). In Coface's experience, 80% of ultra-long overdue payments may never be recovered. If the amount of ultra-long-term overdue payments accounts for more than 2% of annual turnover, you may be exposed to cash flow risk. From the above survey data, it can be seen that small and medium-sized construction materials companies belong to the downstream supply side of the construction industry, and are also in the hardest hit areas of cash flow risk, requiring additional support and protection. Background of the Regulations on Guaranteeing Payment for Small and Medium-sized Enterprises in 1. In recent years, affected by the complex and changeable economic situation at home and abroad and the downward pressure of the economy, the payback period of small and medium-sized enterprises has been extended, and some government organs, institutions and large enterprises have the problem of defaulting on small and medium-sized enterprises to varying degrees. it seriously infringes upon the legitimate rights and interests of small and medium-sized enterprises, aggravates the financial difficulties of small and medium-sized enterprises, and even endangers their survival. In this regard, the Party Central Committee and the State Council attach great importance to the payment of small and medium-sized enterprises. At the 2018 private enterprise symposium, General Secretary Xi Jinping asked to correct the behavior of some government departments and large enterprises that used their dominant position to bully the small and default on private enterprises, and repeatedly gave important instructions and instructions on establishing a long-term mechanism to prevent arrears. On September 4, 2019, the Ministry of Industry and Information Technology website published the Measures for the Administration of Timely Payment of Small and Medium-sized Enterprises (Draft for Comments), and after nearly a year, the Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises (hereinafter referred to as the "Regulations") will come into effect on September 1, 2020. It can be seen that the main purpose of the regulations is to ensure that the funds of small and medium-sized enterprises are paid in a timely manner, alleviate the financial pressure of small and medium-sized enterprises, effectively protect the legitimate rights and interests of small and medium-sized enterprises, and optimize the business environment. A typical case of 2. use of the Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises -- Taking the assumption of deferred payment liquidated damages as an example According to the above cases, it can be seen that in the building materials sales contract, the building materials purchaser generally provides the format text, while in the case of the building materials supplier signing the sales contract, even if there is no agreement on the overdue payment interest, in order to protect the interests of small and medium-sized enterprises, in the case of the building materials purchaser's breach of contract, the court can invoke Article 15 of the Regulations on Guaranteeing Payment for Small and Medium-sized Enterprises, "If government organs, institutions and large enterprises delay in making payments to small and medium-sized enterprises, they shall pay overdue interest. If the parties have an agreement on the interest rate for overdue interest, the agreed interest rate shall not be lower than the market quoted rate for one-year loans at the time of the conclusion of the contract; if no agreement is made, the overdue interest shall be paid at the daily interest rate of five ten thousandth." Therefore, the court ruled that the buyer of building materials should pay the overdue interest at the rate of five ten thousandments per day. Key elements of the 3. Regulations in terms of payment protection In addition to the overdue interest involved in the above-mentioned cases, the Regulations regulate the payment period of agencies, institutions and large enterprises, clarify inspection and acceptance requirements, prohibit disguised arrears, regulate the collection and settlement of deposits, publicize the information of arrears, and establish and improve complaints And supervision and evaluation mechanisms, clarifying the responsibility for delayed payment, etc. Specifically reflected in: (I) regulate payment behavior The Regulations provide for two main aspects: first, to regulate the payment period. It is stipulated that government organs and institutions purchasing goods, projects and services from small and medium-sized enterprises shall pay within 30 days from the date of delivery of the goods, projects and services, and if otherwise agreed in the contract, the maximum payment period shall not exceed 60 days; when large enterprises purchase goods, projects and services from small and medium-sized enterprises, they shall reasonably agree on the payment period and make timely payment in accordance with industry norms and trading habits; if the contract stipulates that settlement methods such as performance progress settlement and regular settlement shall be adopted, the payment period shall be calculated from the date on which the settlement amount is confirmed by both parties. Second, clear inspection and acceptance requirements. In view of the common problem of arrears of accounts owed to small and medium-sized enterprises due to failure to inspect and accept in time in practice, it is stipulated that if government organs, institutions and large enterprises agree with small and medium-sized enterprises to pass inspection or acceptance as the condition of payment, the payment period shall be calculated from the date of inspection or acceptance; both parties to the contract shall agree on a clear and reasonable inspection or acceptance period in the contract, and complete the inspection or acceptance within that period; if the inspection or acceptance is delayed, the payment period shall be calculated from the date of expiration of the agreed inspection or acceptance period. (II) prevention of delinquency The regulations mainly provide for three aspects: first, the prohibition of disguised arrears. It is stipulated that organs, institutions and large enterprises that use non-cash payment methods such as commercial bills to pay for small and medium-sized enterprises shall make clear and reasonable agreements in the contract, and shall not force small and medium-sized enterprises to accept non-cash payment methods such as commercial bills, and shall not use commercial bills to extend the payment period in disguise; it is not allowed to change the legal representative or the main person in charge to perform the internal payment process, or in the absence of an agreement in the contract, on the grounds of waiting for the approval of the completion acceptance, final accounts audit, etc.; refuse or delay the payment of small and medium-sized enterprises; unless otherwise agreed in the contract or otherwise provided by laws and administrative regulations, government agencies, institutions and Large state-owned enterprises shall not force the audit results of the auditing agency to be used as the basis for settlement. The second is to regulate the collection and settlement of margin. It is stipulated that except for the bid bond, performance bond, project quality bond, and migrant worker wage bond established in accordance with the law, no other bond shall be collected during the construction of the project, and the bond shall not be limited to cash; the deposit collection ratio shall comply with the relevant national regulations; after the guarantee period expires, The deposit shall be verified and settled in a timely manner. The third is to clarify the liability for delay in payment. If it is stipulated that government organs, institutions and large enterprises delay in making payments to small and medium-sized enterprises, they shall pay overdue interest in accordance with the contract and the interest rate standards stipulated in these Regulations. Organs and institutions that refuse or delay the payment of small and medium-sized enterprises shall take necessary restrictive measures in terms of official consumption, office space, and funding arrangements. In addition, the regulations also provide for the standardization of contract conclusion and fund guarantee, the establishment of information disclosure system, punishment system for breach of trust and credit supervision and evaluation mechanism. 4. epilogue As we all know, as an indispensable part of the industrial economic chain, small and medium-sized enterprises are in an obvious weak position in obtaining trading opportunities, capital turnover, risk resistance and so on. The "Regulations on Guaranteeing Payment of Small and Medium-sized Enterprises" balances the market transaction status of all parties, provides a legal guarantee for all parties to carry out transactions on the basis of substantial equality, and fully reflects the advantages of national macro-control. As small and medium-sized building materials enterprises, they should fully understand and flexibly use the regulations, and take it as a moat to protect their own rights and interests when their rights and interests are infringed.
2022-07-27
25
2022-07
The the People's Republic of China Company Law, which came into effect on March 1, 2014, stipulates that limited liability is subject to a registered capital subscription system, which is the total amount of capital contributions subscribed by all shareholders of the company and represents the creditworthiness of the company. The implementation of the registered capital subscription system has lowered the threshold for the establishment of a company and greatly stimulated market vitality. However, the company's limited liability has also brought many difficulties to the company's creditors to realize their own rights and interests, because some companies are just a shell and have no Fixed assets and funds have caused the company's creditors to sometimes win the lawsuit and cannot realize their own rights. At this time, in order to realize their own interests, creditors should consider the shareholders to bear supplementary liability in addition to suing the company. The basis for the shareholders of 1. Co., Ltd. to assume supplementary liability. (I) law 1. Companies Act of the People's Republic of China The first paragraph of Article 28 stipulates that shareholders shall pay in full and on time the amount of capital contributions they have paid as stipulated in the articles of association. 2. the People's Republic of China Enterprise Bankruptcy Law Article 35 stipulates that after the people's court accepts the bankruptcy application, if the debtor's contributor has not fully fulfilled its capital contribution obligations, the administrator shall require the contributor to pay the capital contribution paid, without being limited by the time limit of the capital contribution. (II) judicial interpretation 1. The Supreme People's Court on the application<中华人民共和国公司法>(III) on Certain Issues Article 12 stipulates that after the establishment of the company, if the company, shareholders or creditors of the company request that the shareholder withdraw his capital contribution on the grounds that the behavior of the relevant shareholder conforms to one of the following circumstances and damages the rights and interests of the company, the people's court shall support it: (1) making false financial and accounting statements to inflate profits for distribution; (II) transferring his capital contribution through fictitious creditor's rights and debt relationship; (III) transferring his capital contribution through related transactions; (IV) other acts of withdrawal of capital contributions without legal procedures. The second paragraph of Article 13 stipulates that if the creditors of the company request the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; if the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already assumed the above-mentioned responsibilities, the people's court shall not support the same request. The second paragraph of Article 14 stipulates that the shareholders of the company's creditors who request the withdrawal of capital contributions shall bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the withdrawal of capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions Where the people bear joint and several liability for this, the people's court shall support it. 2. Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Enforcement Article 17 stipulates that as a profit-making legal person subject to execution, the property is not enough to pay off the debts determined by the effective legal documents, and the applicant for execution applies for changes, additional shareholders, investors or shareholders who have not paid or have not paid in full capital contributions in accordance with the provisions of the Company Law. If the promoter who bears joint and several liability for the capital contribution is the person subject to execution, the people's court shall support it. (III) reference Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254) 6. Under the registered capital subscription system, shareholders enjoy the benefits of the term in accordance with the law. The people's court shall not support the creditor's request that the shareholders of the outstanding capital contribution period bear supplementary liability for the debts that the company cannot pay off on the grounds that the company cannot pay off the debts due. However, the following circumstances are excluded:(1) in the case of the company as the executed person, the people's court has exhausted the enforcement measures and has no property to enforce, and has the reasons for bankruptcy, but does not apply for bankruptcy;(2) after the company's debts are incurred, the company's shareholders (General Assembly) will decide or otherwise extend the period of shareholders' capital contribution. 2. Judgment Rules on Supplementary Liability of Shareholders of Limited Companies (I) Judgment Rules: If the company's property is not sufficient to pay off the debts determined by the effective legal instrument, the applicant for execution shall have the right to apply for the change or additional withdrawal of capital contribution as the executed shareholder, and the shareholder who has withdrawn the capital contribution shall bear supplementary liability for the part of the company's debt that cannot be paid off within the scope of the principal and interest of the capital contribution. Case 1: Xinjiang xingwo machinery technology service co., ltd., yin qun and Zhang yingcai, Xinjiang fuxing new materials co., ltd., Hangzhou Huiqun industrial investment co., ltd. and Kuqa xinfa mining co., ltd. applied for execution of the second instance civil judgment of objection [Xinjiang Uygur autonomous region higher people's court (2021) xinmin zong no 101] The court held that it was necessary to determine whether the following circumstances existed when it was found that the shareholders who had withdrawn their capital contributions had to bear supplementary liability for the unliquidated portion of the company's debts within the scope of the principal and interest of the withdrawn capital contributions: 1. Determine whether the company as the executed person belongs to the situation of "the company's property is insufficient to pay off the debts determined by the effective legal instrument". After court investigation, it is sufficient to confirm that Xinfa Company has not actively promoted the extension of the validity period of the prospecting right and has the auction conditions, resulting in Xingwo Company's creditor's rights to Xinfa Company still unable to be paid since 2016. The current property status of Xinfa Company belongs to the situation that "the company's property is insufficient to pay off the debts determined by the effective legal documents. 2. Determination of whether shareholders constitute a withdrawal of capital contributions (1) Determine whether the payment and other related actions are normal business practices of the company. That is, even if the ultimate interests of the company are impaired as a result of the relevant transaction, the transaction should not be considered as a withdrawal of capital contributions if the shareholders are not subjectively malicious at the time of the transaction and it is a normal operation of the company. In short, it cannot be concluded that a related company transaction is a withdrawal of capital contributions solely on the basis that the transaction ultimately results in actual damage to the company's interests. (2) If the capital is transferred out after the registered capital is paid in, although it cannot be directly identified as the withdrawal of capital contribution, when the time and amount of the transferred money are derived from the registered capital, and there is reasonable doubt about the existence of the withdrawal of capital contribution, since the creditor cannot query the bank accounts or financial books of the target company and its shareholders, the target company or its shareholders can only provide rebuttal evidence, it is proved that the transferred capital contribution is reasonable, is used for the normal operation of the company, and has gone through the legal procedures of the company, otherwise it shall bear the adverse consequences of the failure of the proof. Case 2: Shandong Weishan Lake Mining Group Co., Ltd., Jin Han Construction Co., Ltd. and other outsiders executed the second instance civil judgment of objection [Shandong Zibo Intermediate People's Court (2022) Lu 03 Min Zhong No. 158] The court held: 1. Weishan Lake Mining Group claimed that the above-mentioned 19 million transfer was the normal operation of the enterprise, but it could not explain the purpose of the money involved in the case and did not submit relevant basic transaction evidence. Therefore, Weishan Lake Mining Group constituted a withdrawal of registered funds from Jiuxing Longtai Company. 2. The above-mentioned frozen and sealed-up property of Jiuxing Longtai Company is not enough to pay off the debts determined by its effective judgment, and Weishan Lake Mining Group is added as the person to be executed, and it is in accordance with the law to assume responsibility within the scope of the withdrawal of capital contributions. (II) Judgment Rules: If a shareholder reduces the capital contribution without legal procedures, he shall be liable for supplementary compensation for the company's unliquidated debts. Case: Hebi Haichuang Industrial Transformation and Development Investment Fund, Zibo Haoxiang Wear-resistant Material Co., Ltd. and others have decided to apply for retrial and review of civil rulings on contract disputes [Henan Higher People's Court (2021) Yu Min Shen No. 8169] The court held that the shareholders of a limited liability company should not only fulfill the obligation of full capital contribution, but also that the capital contribution paid by the shareholders shall not be withdrawn or reduced without legal procedures. In this case, under the condition that Changye Chemical Company failed to fulfill its notification obligation to creditor Haoxiang Company, its shareholder Haichuang Fund and others reduced their capital through the resolution of the company's shareholders' meeting, which violated the principle of unchanged capital and capital maintenance of the company. It is no different in essence from the infringement of creditors' interests caused by shareholders' failure to fulfill their capital contribution obligations and withdrawal of capital contribution. Therefore, the company's shareholders cannot be exempted from the responsibility for the capital reduction. Although the company law theoretically distinguishes between substantial capital reduction and formal capital reduction, there is no clear distinction in China's current company law. Moreover, whether the company's capital reduction is substantial capital reduction or formal capital reduction, the beneficiaries of the capital reduction are all shareholders of the company. As for whether Haichuang Fund has recovered the capital reduction from Changye Chemical Company, it is its internal operation and does not affect its external responsibility. In summary, Haichuang Fund shall bear supplementary liability for the debts owed by Changye Chemical Company to Haoxiang Company within the scope of capital reduction. (III) Judgment Rules: If a prominent shareholder withdraws his capital contribution, he shall bear supplementary liability for the company's debts within the scope of the capital contribution. Case: Jiangsu Yangzhong Port Investment Development Co., Ltd., China Shipping Engineering Construction General Administration Co., Ltd. and other construction project contract disputes second-instance civil judgment [Hubei Higher People's Court (2021) E Min Zhong No. 133] The court held that: the case formed a complete chain of evidence, sufficient to prove that Yangzhong Development Company in the Shenghao Port Company after the capital contribution of 0.2 billion yuan to the use of fictitious creditor's rights and debts to transfer the capital contribution, constitute a withdrawal of capital contribution, should bear the corresponding legal responsibility. Yangzhong Development Company claims that the relationship between it and Shenghao Investment Company is an equity holding relationship, the Court believes that even if the holding is true, according to the effectiveness of the equity registration publicity, does not affect the legitimate rights of creditors to prominent shareholders, Yangzhong Development Company in the withdrawal of capital contribution of 0.2 billion yuan to bear the corresponding supplementary liability. (IV) Judgment Rules: If the period of contribution has not expired, the shareholders shall not be liable for compensation for the company's debts within the scope of the unfunded principal and interest. Case: Chongqing Shangcheng Landscape Art Co., Ltd. and Shanxi Boxin Construction Engineering Co., Ltd., Shanxi Shanggu Tourism Development Co., Ltd. and other construction project contract disputes retrial civil judgment [Shanxi Higher People's Court (2020) Jin Min Zai No. 270] The court held that the second paragraph of Article 13 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" stipulates: "The company's creditors request shareholders who have not fulfilled or fully fulfilled their capital contribution obligations to be within the scope of the principal and interest of the unfunded capital contribution. If the company's debts cannot be repaid, the people's court shall support it." This provision applies to the situation where the shareholder's capital contribution is due and fails to fulfill the capital contribution obligation. According to the second paragraph of Article 3 of the the People's Republic of China Company Law, which was amended and implemented on March 1, 2014, "the shareholders of a limited liability company shall be liable to the company to the extent of the amount of capital contribution they have paid; the shareholders of a joint stock limited company shall be liable to the company to the extent of the shares they have subscribed." It can be seen that the registered capital of a limited liability company is subject to a subscription system, under which shareholders enjoy the benefits of the term. The ancient travel company in the company's articles of association agreed that the shareholder subscription period is October 18, 2025, there is no violation of the law. Therefore, in accordance with the provisions of Article 13, paragraph 2, of the (III) of the Supreme People's Court on the Application of the the People's Republic of China Company Law, the original court ruled that Shangcheng Garden Company should bear supplementary compensation liability to Boxin Construction Company for the unpayable part of the debts of the ancient tourism company within the scope of the unfunded principal and interest. (V) Judgment Rules: In the case of the company as the executed person, the people's court has exhausted the enforcement measures and has no property to enforce, and has the reasons for bankruptcy, but does not apply for bankruptcy, the shareholders who have not reached the period of capital contribution shall bear supplementary liability for the debts that the company cannot pay off within the scope of capital contribution. (VI) Judgment Rules: After the company's debts arise, if the company's shareholders (large) will resolve or otherwise extend the period of shareholders' capital contribution, the shareholders who have not made the period of capital contribution shall bear supplementary liability for the company's unpayable debts within the scope of the unfunded capital contribution. (VII) Judgment Rules: After the People's Court accepts the bankruptcy application, if the debtor's contributor has not fully fulfilled its capital contribution obligations, the administrator shall require the contributor to pay the capital contribution paid, and the contributor shall bear supplementary liability for the company's unpayable debts within the scope of the unfunded contribution, without being limited by the period of contribution.</中华人民共和国公司法>
2022-07-25
25
2022-07
Recently, "owners of uncompleted residential buildings are forced to stop lending" rushed to the hot search. "The wave of supply and loan suspension has hit, involving many properties in many places across the country. According to incomplete statistics, at least 52 owners of unfinished and suspended buildings have issued a notice of compulsory suspension of loans to the authorities and banks. Including Zhengzhou, Wuhan, Xi'an, Taiyuan, Changsha, Xianning, Shaoyang, Suqian, Qingdao, Jinan and other cities, including a number of developers. Subsequently, a judgment (2019) min again No. 245 issued by the judicial committee of the Supreme People's court was screened on the social platform. The judgment held that in the case of the termination of the housing guarantee loan contract, the developer should bear the obligation to return the principal of the housing loan, and the house buyer should not have the obligation to return the principal of the loan to the commercial bank. The above judgment is diametrically opposite to the original judgment. The original judgment holds that the loan contract relationship is established between the buyer and the commercial bank. According to the principle of relativity of the contract, when the loan contract is terminated, the buyer should return the paid loan principal to the commercial bank. The judicial interpretation of the commercial housing sales contract says that "after the commercial housing sales contract is confirmed to be invalid or canceled or terminated, if the commercial housing guarantee loan contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right and the buyer respectively" should be understood as a third party (developer) to perform on its behalf. In the case that the developer fails to follow the instructions of the buyer to perform the loan principal return obligation in time, the corresponding debt has not been eliminated, and the buyer should still perform the loan principal return obligation to the commercial bank. In the face of the above two judicial views, is it legal for the owners to refuse to repay the remaining loans after the unfinished real estate? What legal consequences will the owners face after they stop lending? 01 The legal relationship involved in the interruption of the loan. There are two main legal relationships in the "down payment commercial loan" purchase model: The first level of legal relationship is the contractual relationship between the buyer and the developer for the sale of commercial housing, which stipulates that in addition to paying the down payment to the developer, the buyer also needs to apply for a house purchase loan from a commercial bank, and the bank will directly issue a loan to the developer. The second level of legal relationship is the secured loan contract relationship between the buyer and the bank, and the secured loan contract relationship can be subdivided into: the loan contract relationship and the mortgage guarantee relationship, which may also involve the developer's phased joint and several guarantee liability. After the bank issues the loan, the buyer needs to make a "monthly payment" in accordance with the loan contract and pay off the loan in installments. 02 The focus of legal controversy over the suspension of loans. The focus of the dispute in such cases is whether the buyer should bear the responsibility for the repayment of the remaining loan after the termination of the individual purchase loan and guarantee contract. Judgment Point 1: According to Article 21, paragraph 2 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes": "After the commercial housing sales contract is confirmed to be invalid or revoked or terminated, the commercial housing guarantee loan If the contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right holder and the buyer respectively." The property was unfinished, and the developer was unable to deliver the house to the buyer due to the bankruptcy liquidation procedure, resulting in the termination of the commercial housing sales contract. The judgment supported the buyer to terminate the personal purchase loan and guarantee contract. At the same time, the guaranteed loan contract was deemed invalid due to the bank's unilateral format clause. The final judgment was that the developer should bear the responsibility for returning the remaining loan and paying interest. Referee opinion 2: According to the principle of relativity of the contract, after the loan guarantee contract is terminated, the buyer should return the purchase loan to the developer. The provisions of Article 21, paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts shall be understood as the developer's return on behalf of the developer (I. e. the third party's performance on behalf of the third party), and the buyer shall not be exempted from the repayment responsibility. 03 Understanding and interpretation of the focus of controversy In the past two years, there has been no lack of similar judgments in judicial practice. The legal basis for the judgment of such cases lies in Article 21 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes. Judging from the content of the judicial interpretation, the buyer does not bear the responsibility of repayment. In addition to the termination of the commercial housing sales contract and the secured loan contract, the above clause cannot be understood as a "third party to perform on behalf of" clause, otherwise the developer cannot In the case of directly returning commercial loans to the bank, the buyer still has the obligation to repay the loan to the bank. Regarding the termination of the purchase contract, that is, the guarantee loan contract, the real estate is unfinished, the buyer can terminate the purchase contract according to the agreement on the developer's overdue delivery in the commercial housing sales contract or on the grounds that the purpose of the contract cannot be realized. Although the guaranteed loan contract and the commercial housing sales contract are two relative contracts signed by the buyer with the loan bank and the developer respectively, after the cancellation of the purchase contract, the buyer can base on the judicial interpretation of the commercial housing sales contract that "the purpose of the commercial housing guaranteed loan contract cannot be realized because the commercial housing sales contract is confirmed to be invalid or canceled or canceled, so that the purpose of the commercial housing guaranteed loan contract cannot be realized. If the party requests the cancellation of the commercial housing guaranteed loan contract, it should be supported, request the release of the secured loan contract. In the case that the house purchase contract and the secured loan contract are terminated, the direct legal consequence is to return the house purchase loan to the bank. The commercial housing sales contract stipulates that the "seller" shall be returned, but some referees believe that the "seller" return stipulated in the judicial interpretation It is performed on behalf of the buyer, and if the developer cannot return it, it should still be returned by the buyer. This view is based on the interpretation of the dual legal relationship in the sale of commercial housing, which has been stated in the first part of this paper. This view is based on the relativity of the contract, although it is reasonable to some extent, there are also obvious conflicts of legal value:(1) the developer should have a major fault in the performance of the contract for the sale of commercial housing due to poor management;(2) under the commercial housing presale system, the buyer pays the down payment to it and applies for the commercial bank to lend directly to it, which acts as the direct recipient of the purchase interest;(3) After the cancellation of the purchase contract and the secured loan contract, if the developer still enjoys the purchase benefits due to his own fault, and the buyer assumes the obligation to return the loan, the rights and obligations are obviously unequal. There is a suspicion that "the buyer pays for the developer's fault", and there is a conflict of legal value goals. To sum up, the author tends to think that when the commercial housing sales contract and the secured loan contract are terminated, the developer should bear the obligation to return the loan to the bank, and the buyer does not need to repay the remaining loan to the bank. 04 Lawyer Summary The real estate is unfinished, although the buyers do not have any fault behavior, and it seems that there is nothing wrong with the compulsory suspension of supply, but the one-way sending the "notice of cut off the supply" to the bank has no substantial legal effect. Although in recent years, there have been a number of cases in which buyers no longer repay loans after unfinished buildings, it is not a unified rule of judgment in judicial practice, and there is a certain degree of uncertainty as to whether the court will judge according to this idea. In the absence of a loan suspension agreement or without a court decision, the buyer has a legal risk of default and may be sued by the lending bank and enforced to repay the loan. For the majority of home buyers, in the event of unfinished real estate, at the level of judicial relief, the court should be requested to terminate the commercial housing sales contract and the secured loan contract in accordance with the law, and request the court to rule that the developer directly assume the obligation to return the house purchase loan to the bank, and obtain court support After that, the legal obligation to repay the principal and interest in the original loan guarantee contract can be eliminated.
2022-07-25
Zhongcheng Qingtai Jinan Region
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