How to safeguard one's legitimate rights and interests in a bill (commercial acceptance) dispute?

Commercial acceptance bills are endorsed by the company's reputation, and have gradually become one of the main tools for corporate financing due to their low threshold and easy operation. However, affected by the epidemic, market fluctuations, etc., commercial acceptance bills due acceptance difficulties, cash cost increase, there are also some areas of the glass association has issued a proposal, the initiative to uniformly reject commercial acceptance bills. However, under the general environment, many glass enterprises inevitably accept the commercial acceptance bill endorsed and transferred by the upstream company, and transfer it to the downstream enterprise again when the commercial acceptance bill is not due. When a commercial promissory note expires, if the acceptor is not able to accept it on time, how should the holder, the endorsement transferor and other parties protect their legitimate rights and interests? 1. the holder's right of payment request and bill recourse. Article 4 of the Bill Law clearly stipulates that "the right of the bill referred to in this Law refers to the right of the holder to request payment of the amount of the bill from the debtor of the bill, including the right to request payment and the right of recourse". The act of (I) an instrument is causeless, and the debtor of the instrument shall pay in full after the legitimate holder has prompted payment during the validity period. The holder's right to request payment of the bill, I .e., after the maturity of the bill, the holder shall request payment of the corresponding bill amount from the bill payer within the prescribed prompt payment period. A commercial promissory note with all necessary records and complete forms is a legal and valid instrument, and the payer shall pay in full after the bill of exchange is due and prompt payment within the validity period. Case: Supreme People's Court (2019) Supreme People's Court No. 166 Guotou Bio Jilin Co., Ltd. and Shanxi Hongdong Rural Commercial Bank Co., Ltd. Dispute over Claim for Bill Payment The court held that Hongdong Agricultural and Commercial Bank, as the holder of the ticket, claimed the right to the bill to the ticketing State Investment Biological Company, which was based on the law and should be supported. The note already states that "this bill of exchange has been accepted and is due for unconditional payment" and that the due date stated on it is December 28, 2015. As can be seen from the "Situation Note" issued by the State Investment Biology Company, Hongdong Agricultural and Commercial Bank has prompted the State Investment Biology Company for payment on January 6, 2016. In accordance with the provisions of Article 54 of the the People's Republic of China Bill Law: "If the holder prompts payment in accordance with the provisions of the preceding article, the payer must pay in full on the same day", the current Hongdong Agricultural Commercial Bank prompts payment behavior, has met the provisions of Article 53 of the the People's Republic of China Bill Law, the State Investment Biological Company is obliged to pay the holder in accordance with the bill in accordance with the law. (II) the right to the instrument is not exercised within two years after the maturity date of the instrument, the holder loses the right to the instrument, but has the right to return the interest in the instrument within the statute of limitations (three years) The holder's rights against the drawer and acceptor of the instrument shall be two years from the maturity date of the instrument, but the holder shall still have civil rights after losing the right to the instrument and may request the drawer or acceptor to return his interest equivalent to the amount of the unpaid instrument. Case: Jiangsu Xuzhou Intermediate People's Court (2020) Su 03 Min Zhong No. 6545 Anhui Education Publishing House and Bank of Communications Co., Ltd. Xuzhou Branch Dispute over Claim for Return of Bills The court held that Article 18 of the the People's Republic of China Bill Law stipulates that "if the holder loses the right to the bill because it has exceeded the statute of limitations of the right to the bill or because the bill is not recorded, he still has civil rights and may request the drawer or acceptor to return his interest equivalent to the amount of the unpaid bill." Anhui Education Press, as the holder of the bill, has lost the right to the bill, but its civil rights to the drawer and the acceptor have not been lost. Secondly, Bank of Communications Xuzhou Branch received all the bill payment, but it did not return the payment to the drawer Xuzhou Fusen Import and Export Co., Ltd. after the bill had passed the commitment period and the right period. The bank's continued holding of the bill constituted unjust enrichment. Finally, when Anhui Education Publishing House accepted the bill to Xuzhou Branch of Bank of Communications, it learned that the bill involved was still in the possession of the bank, and the bank's refusal to pay constituted infringement. Therefore, Anhui Education Publishing House claimed that the starting point of the statute of limitations for the interest of the bill should be April 1, 2020, the date when the prompt payment was rejected. The agency filed a lawsuit in the court of first instance in that year, xuzhou Branch of Bank of Communications shall pay 1 million yuan to the agency for the benefit of the bill. After the (III) bill is refused payment at maturity, the holder has the right to recover its forehand. The right of recourse to an instrument is the right of the holder to request repayment of the amount, interest and expenses of the bill of exchange against his forehand (endorser, drawer and other debtors) when the bill of exchange is refused payment or non-acceptance at maturity or for other legal reasons. The right of recourse to an instrument is a second-in-place right and may be exercised only if the right to request payment is exercised against the payer and is not available. The person being pursued may be more than one person and shall be jointly and severally liable to the bearer, including all the forehand endorser, drawer, acceptor, guarantor, etc. It is important to note that the holder's recourse to the forehand is only six months from the date of rejection of acceptance or rejection of payment, compared to the two-year statute of limitations on the bill. Case: Shandong Wucheng County People's Court (2019) Lu 1428 Minchu 2604 Dezhou Tiansen Air Conditioning Equipment Co., Ltd. and China Railway Third Bureau Group Construction and Installation Engineering Co., Ltd., Jiangsu Youan Fire Engineering Co., Ltd. Shanxi Branch Bill Recourse Dispute The court held that the "refusal to pay" provision of Article 61 of the the People's Republic of China Bill Law included not only the situation where the payer expressly "refused to pay", but also the objective inability of the payer to perform its obligation to pay. The proof in the provision of "refusal to prove, reason for refund or failure to provide other legal proof within the prescribed time limit" is a proof of refusal to accept or refuse to pay. According to the announcement of Pagoda Petrochemical Group Finance Co., Ltd. on July 10, 2018 provided by the plaintiff and the fact that Pagoda Petrochemical Group Finance Co., Ltd. had not actually paid until the end of the trial, the plaintiff Dezhou Tiansen has actually been refused payment, so the bill involved in the case has actually been refused payment. Texas Tiansen, through continuous endorsement, obtained the bill involved in the case, is the legal holder of the bill. Defendant Jiangsu You'an Fire Shanxi Branch argued that the plaintiff Dezhou Tiansen claimed that the bill right had exceeded the six-month limitation period of the bill right, and the right of recourse was thus eliminated. The plaintiff, Dezhou Tiansen, submitted the notice of refusal to pay and the letter of reminder to each endorser of the bill involved in the case, stating that the company has the right of recourse, requesting the endorser of the bill involved in the case to bear joint and several liability for the payment, and submitted the mail receipt, which can prove that the plaintiff, Dezhou Tiansen, sent a notice of recourse to his forehand within six months from the date when the bill was actually refused to pay, therefore, the Court held that when Texas Tiansen issued a notice of recourse to the defendants in this case (I. e., when issuing a notice of refusal of payment of the bill of exchange and a letter of reminder of payment) did not exceed the six-month limitation period of the bill rights, Texas Tiansen could claim the bill rights against its forehand. The holder of a 2. may sue its direct forehand on the basis of the underlying legal relationship. In the case of the holder's direct forehand, the holder may claim rights on the basis of both the legal relationship of the instrument and the underlying legal relationship (the relationship between the contract of sale and purchase). If the parties fail to pay the price or remuneration, the other party may require it to pay the price or remuneration, and the law does not prohibit the seller who accepts the bill of exchange from requesting the buyer who delivers the bill on the basis of the underlying legal relationship to pay the purchase price separately, and the holder of the bill has the right to demand the payment of its direct forehand on the basis of the underlying legal relationship. However, it does not rule out the court's choice to reject the holder's claim for payment on the basis of the underlying legal relationship in order to protect the forehand's right of re-recourse. Case 1: Jinan Intermediate People's Court (2021) Lu 01 Min Zhong No. 952 Shandong Jigang Alloy Material Technology Co., Ltd. and Zhangqiu Xindongda Machinery Parts Co., Ltd. Dispute over Sales Contract The court held that the bill in question was currently in a non-repudiation recourse pending settlement. Because the bill involved in the case is an electronic bank acceptance draft, according to the current electronic commercial bill of exchange system, if the acceptor of this type of bill of exchange does not respond to the holder's prompt payment, the holder objectively cannot obtain proof of refusal through the electronic commercial bill of exchange system. Based on the relevant announcement issued by Pagoda Petrochemical Group Finance Co., Ltd., New Dongda Company also submitted materials to the acceptor Pagoda Petrochemical Group Finance Co., Ltd. on site, which has not been paid so far. In summary, the instrument should be deemed to have been "refused payment". The right of Xindongda Company to obtain the purchase price has not been realized, and has the right to request Jigang Alloy Company to pay the money based on the sales contract between the two parties. Case 2: Disputes over Sales Contracts between Shanghai Xinwang Iron and Steel Co., Ltd. and Ganzhou Jiang Tungsten Alloy Co., Ltd., No. 119, Jiangxi Provincial Higher People's Court (2020) The court held that under the condition that the electronic bank acceptance bill involved in this case has not been paid so far, the holder of the bill, Jiang tungsten alloy company, has two kinds of claim rights, namely, the claim right based on the legal relationship of the sales contract and the claim right of bill recourse based on the relationship of bill creditor's rights and debts. Jiang tungsten alloy company has the right to choose one of the bill rights or the cause creditor's rights to file a lawsuit. However, because the electronic bank acceptance draft is a certificate of rights to securities, so Jiang Tungsten Alloy Company in the cause of the claim of the right at the same time, should return the original bill to Xinwang Iron and Steel Company, in order to protect Xinwang Iron and Steel Company can be the former and the drawer, the acceptor to claim the bill rights. As the electronic bank acceptance bill in this case is still in a state of being unable to be returned to Xinwang Iron and Steel Company, in order to protect Xinwang Iron and Steel Company's bill recourse, the court does not support the lawsuit request of Jiang Tungsten Alloy Company to require Xinwang Iron and Steel Company to pay 6 million yuan corresponding to the bill involved in the case and to bear liquidated damages for overdue payment based on the legal relationship of the sales contract. Jiang Tungsten Alloy Company may exercise its bill rights in accordance with the law, and separately claim the bill rights to Baota Petrochemical Group Finance Co., Ltd., Xinwang Iron and Steel Company or its predecessors. 3. the right of re-recourse of the holder or the person against whom the claim is made. The right of re-recourse is the right of the bill debtor who has paid off the bill debt through the recourse of other bill rights holders, and after obtaining the bill, the right to seek recourse from its forehand. After the person against whom the recourse is made has paid off the corresponding bill, he may exercise the right of re-recourse against other bill debtors for a period of three months from the date of payment or the date on which the action is brought. However, as mentioned earlier, not all holders will claim in an instrument relationship, and it is not ruled out that the holder may claim payment in an underlying legal relationship and be supported by the court. The holder of the ticket sues its direct forehand with the basic legal relationship, and the settlement of the debt arising from the basic legal relationship objectively produces the result of the liquidation of the bill in question, and the holder shall deliver the bill in question to the forehand, who shall enjoy the right of re-recourse of the bill. Case: Zhejiang Xiaoshan District People's Court (2020) Zhejiang 0109 Minchu No. 7899 Angang Jingu (Hangzhou) Metal Material Co., Ltd., Hong Jianlong and Hangzhou Mingning Chemical Co., Ltd. Bills Dispute The court held that: the case involved in the electronic bank acceptance bill endorsement continuous, multi-leng new materials Co., Ltd. as the legitimate holder. Due to the fact that the electronic bank acceptance bill involved in the case cannot be paid when it is due, Duoleng New Materials Co., Ltd. sued Angang Jingu (Hangzhou) Metal Materials Co., Ltd. according to the dispute over the sales contract, and then Angang Jingu (Hangzhou) Metal Materials Co., Ltd. paid the corresponding amount to Duoleng New Materials Co., Ltd. according to the effective judgment. Although the payment was not based on the bill relationship, however, the settlement of the debt arising from the underlying legal relationship objectively allows the corresponding instrument debt to be settled. After paying off its debts, Angang Jingu (Hangzhou) Metal Materials Co., Ltd. enjoys the same rights as the ticket holder, so it has the right to recover from its forehand. 4. Summary The bill does have the advantage of its existence in market circulation, but there is also a real risk of paying more time and energy to get the corresponding amount of payment when the bill is due and the payer refuses to accept it. After the maturity of the bill, the holder shall prompt payment in time to avoid damage to his own rights. In the event that the instrument cannot be honored, the holder may claim payment from all debtors of the instrument on the basis of the instrument relationship, or may claim payment from its direct forehand on the basis of the underlying legal relationship. After being pursued by the holder, the forehand of the non-bill payer has the right of re-recourse, but it needs to be exercised within three months from the date of liquidation or the date of the lawsuit. It is worth noting that if the holder claims payment on the basis of the legal relationship, it is still controversial in practice whether the direct forehand has the right of re-recourse after the settlement of the debt. Our lawyers believe that after the direct forehand pays off the debt based on the basic legal relationship, the objective result of the bill involved in the case is paid off, the holder should deliver the bill to the direct forehand, at this time the direct forehand enjoys the right of re-recourse of the bill, the statute of limitations from the date of prosecution or liquidation.

2022-07-05

Real estate perspective: can the construction team claim the project cost or labor cost from the employer?

Presentation of 1. issues In the judgment documents, the concept of "construction team" is often mentioned, and it is often combined with "actual constructors", "contractors" and "migrant workers. "Actual builder" refers to the contractor of invalid construction project construction contract, I .e. the contractor of illegal professional project subcontracting and labor operation subcontracting contract, sub-contractor and qualified constructors (affiliated constructors); The non-professional term "contractor" refers to the individual contractor who does not have the qualification of the main body of employment, who obtains the project through subcontracting and illegal subcontracting, and illegally solicits migrant workers for labor operations, pay labor remuneration to migrant workers, so as to form the smallest organizational unit in project management-"construction team" with migrant workers ". As mentioned above, the "construction team" and the contractor are at least separated by the "contractor", "actual builder" and "construction general contractor. Then, whether the "construction team" has the right to claim the project price or labor cost to the employer? If so, what is the basis for its claim? This paper intends to analyze the view of judicial judgment. 2. view of judicial adjudication There are generally three views on whether the construction team should be supported to claim the project price or labor cost from the contractor in judicial practice: first, the construction team does not belong to the actual builder in the legal sense, and has no right to require the contractor to bear the responsibility within the scope of the construction project price arrears according to the provisions of Article 43 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes (I) 2020 No; second, the construction team has no right to require the employer to advance the arrears of migrant workers' wages within the scope of the arrears of project funds in accordance with the provisions of Article 29 of the regulations on ensuring the payment of migrant workers' wages; third, the construction team has the right to require the employer to advance the arrears of migrant workers' wages within the scope of the arrears of project funds. The specific views of the referee are as follows: (I) construction team does not belong to the actual construction person in the legal sense, does not enjoy the right to break through the relativity of the contract, and requires the contractor to bear the responsibility within the scope of the price of the construction project. For example, (2019) Supreme Famin Shen No. 5594 Judgment holds that:… Peng Yunrui is the actual builder of Huai'an Mingfa Commercial Plaza project;… Le Dianping is the head of the mud team in the C block project of Huai'an Mingfa Commercial Plaza contracted by Peng Yunrui… The relationship between Le Dianping and Peng Yunrui is the labor legal relationship, and Le Dianping (team) is the personnel employed by Peng Yunrui to engage in mud labor service, not the actual construction person in the legal sense mentioned above, ...... Le Dianping requested Huai'an Mingfa Company, the contractor of the project involved in the case, to assume the liability for payment within the scope of the project payment owed on the grounds of Article 26 of the judicial interpretation, which lacked the corresponding factual basis and legal basis. For example, (2022) Lu 14 Min Zhong No. 263 Judgment holds that: ...... The actual construction party shall not include the labor operation contractor. In this case, the "Construction Contract" signed by the employer Jinming Wucheng Branch and Guoji Dezhou Branch is legal and valid. As the contractor, Guoji Dezhou Branch signed the "Labor Contract" with Senmao Company. As the labor contractor, Senmao Company hired Liu Jihai to engage in carpentry labor. Therefore, Liu Jihai was not the actual constructor of the project, ...... The case should be a labor contract dispute, not a construction contract dispute. Liu Jihai has no right to break through the relativity of the contract and claim the project payment from the contractor and the general contractor involved. (II) construction team has no right to require the employer to advance the arrears of migrant workers' wages within the scope of the unpaid project price in accordance with the regulations on ensuring the payment of migrant workers' wages. For example, (2021) Qing 01 Minzong No. 2341 Judgment holds that: The Internal Team Contract Agreement signed between Beijing Huaji Shengde Company and Zhang Jiazhi is a labor contract... Zhang Jiazhi's labor payment should be paid by the opposite party of the contract, Beijing Huaji Shengde Company. Beijing Huaji Shengde Company now requests Jiangsu Construction Engineering Group Co., Ltd. and Xining Hongxing Meikailong Company to pay Zhang Jiazhi's labor service fee on the grounds that Jiangsu Construction Engineering Group Co., Ltd. owes its project payment. The appeal reason is groundless, and the hospital does not support it. (III) in principle, the construction team has the right to require the contractor to advance the arrears of migrant workers' wages within the scope of the arrears of the project funds in accordance with the provisions of the Regulations on Guaranteeing the Payment of Migrant Workers' Wages. However, in terms of the allocation of the burden of proof, judicial decisions are different. 1. The construction team shall bear the burden of proof on the causal relationship between the fact that "the contractor did not allocate the project funds in time in accordance with the contract" and the result of "wage arrears of migrant workers. For example, (2021) Lu 02 Minzong No. 15249 Judgment holds that Xin Wei did not submit valid evidence to prove that Sunac Company in this case complies with the provisions of Article 29, paragraph 2, of the Regulations on Guaranteeing the Payment of Migrant Workers' Wages, which states that Sunac Company, as a construction unit, should advance the wages of migrant workers, the joint and several liability for the payment of labor costs and interest is not accepted by the Court on insufficient basis. Xin Wei is a labor team member, not a construction or labor company, regardless of whether there is illegal subcontracting or subcontracting of the project involved, Sunac does not meet the statutory circumstances that should bear joint and several payment liability. For example, (2021) E 05 Min Zhong No. 3489 Judgment holds that: Article 29, paragraph 2, of the State Council's Regulations on Guaranteeing the Payment of Migrant Workers' Wages, which came into effect on May 1, 2020, stipulates: "If the construction unit fails to timely allocate the project funds in accordance with the contract, the construction unit shall advance the arrears of migrant workers' wages within the limit of the outstanding project funds." Therefore, the application of Article 26 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of construction contract disputes breaks through the relativity of the contract, which is that the construction unit fails to timely allocate the project funds in accordance with the contract, resulting in the arrears of migrant workers' wages. In this case, the construction unit Yichang Housing Investment Company has paid 90% of the total project price to the general contractor, China Construction Third Bureau, that is, about 0.3 billion. The general contractor, China Construction Third Bureau, has paid 12.84 million yuan to the illegal subcontractor Zhongzhi Xincheng Company. The reason why China Construction Third Bureau has not paid the remaining project price to Zhongzhi Xincheng Company is due to court co-operation and quality assurance problems. Therefore, there is no case in this case that Zhongzhi Xincheng Company did not pay Xu Yangtao for the project due to the construction unit Yichang Housing Investment Company. Based on the principle that the people's court should adhere to the principle of equal protection for all parties in the construction industry, while protecting the interests of Baotou workers and migrant workers, it should not harm the legitimate rights and interests of qualified construction enterprises and contractors, ...... The court of first instance did not find that Yichang Housing Investment Company was responsible for the debts owed by Zhongzhi Xincheng Company within the scope of the construction project price. 2, in the case of the contractor and the construction general contractor has not yet settled, the construction team advocates that the contractor to the outstanding project funds as the limit of advance payment of the arrears of migrant workers wages conditions will not be achieved. (The following part of the case is the actual construction of the contractor to require the contractor to bear the responsibility within the scope of the project payment, can refer to the applicable). For example, (2021) the Supreme People's Court ruled No. 339 that Li Haijun and Cui Youliang advocated that Zhongfa Source Company should bear the responsibility within the scope of the outstanding project funds. ... The case involving Times Square was not completed, and the settlement between China Development Source Company and Huangwatai Company was not made, so we could only confirm the fact that Huangwatai Company and Huangwatai Qinghai Branch Company owed Li Haijun and Cui Youliang project funds. Whether Zhongfa Source Company owes Huangwatai Company and Huangwatai Qinghai Branch the project funds, the amount of the project funds owed and other facts cannot be found out due to unsettled accounts, and the rights and obligations between the actual constructor and the employer are not clear. Therefore, Li Haijun and Cui Youliang claimed to Zhongfa Source Company that the conditions for them to assume responsibility within the scope of the project funds owed were not fulfilled. For example, (2021) Liao 03 Min Zhong No. 4477 Judgment holds that Haicheng Huayuan Company (the employer) has not made effective settlement with the qualified subject, so it is not clear whether the employer has determined the amount of outstanding project funds in this case, and the audit and settlement of project funds between Haicheng Huayuan Company and Liu Fangping or other qualified subjects has not been carried out at present, and the settlement may involve legal relations between other subjects, therefore, in this case, it is not possible to determine whether the contracting party still owes the project funds. Therefore, the court of first instance rejected Qu Mingguo's claim that the contracting party should bear the responsibility for payment within the scope of the project funds not paid. It is not improper for Qu Mingguo to file a separate lawsuit after the settlement of the project involved in the case. For example, (2021) Lu 0113 Minchu No. 3673 judgment held that: Ma Zhanfeng claimed that the project involved was contracted by Panghui Company to Chengda Company, so according to the relevant provisions of the Regulations on Guaranteeing Wage Payment for Migrant Workers, Panghui Company should pay labor fees to it. In response, the court believes that since neither Panghui Company nor Chengda Company took part in the lawsuit, it is impossible to find out whether Panghui Company failed to pay the project funds to Chengda Company as promised, and Ma Zhanfeng clearly indicated that it was employed by Chengda Company and Chengda Company settled with it. Therefore, the court does not support Ma Zhanfeng's request to order Panghui Company to pay its labor costs. 3, in the case of the contractor and the construction general contractor has not yet settled, the contractor shall bear the burden of proof on the "settled project funds", otherwise, the construction team has the right to require the contractor to advance the outstanding project funds to advance the wages of migrant workers in arrears. For example, (2021) Yue 20 Min Zhong No. 9286 Judgment holds that the second paragraph of Article 29 of the Regulations on Guaranteeing the Payment of Wages for Migrant Workers stipulates that if the wages of migrant workers are in arrears due to the failure of the construction unit to allocate the project funds in time in accordance with the contract, the construction unit shall advance the wages of migrant workers in arrears to the extent of the outstanding project funds; ...... In this case, Southern Grid Energy Company confirms that it has not settled with the general contractor, nor has it provided evidence to prove that the project payment has been settled. According to the second paragraph of Article 29 of the above-mentioned regulations, China Southern Power Grid Energy Company shall be responsible for the advance payment of Chen Zhipeng's labor remuneration within the scope of the outstanding project payment of Zoomlinda Company; For example, (2021) Liao 10 Min Zhong No. 2036 Judgment holds that the construction unit shall allocate the project funds in a timely manner in accordance with the agreement and pay the workers' expenses in full and on time. If the construction unit fails to allocate the project funds in time as agreed in the contract, resulting in the wages of migrant workers in arrears, the construction unit shall advance the wages of migrant workers in arrears to the extent of the outstanding project funds. There is no dispute between the appellant and the appellee Longxin Company that the project payment has not been settled. At the same time, the dispute is in another lawsuit. The court of first instance found that the project payment owed by Shangda Company exceeded the wages claimed by 41 people such as Zheng Chengwei, so it ordered Shangda Company to bear joint and several liability for the workers' wages. If this fact is found to conflict with another case, both parties can resolve the dispute in this case separately. The scope of joint and several liability of Shangda Company shall be limited to the outstanding project funds. 3. legal analysis According to the provisions of laws, administrative regulations and judicial interpretations, combined with the rules of judgment of similar cases in judicial practice, the following legal analysis is carried out on whether the construction team has the right to claim rights against the contractor, or, as far as the contractor is concerned, how to avoid its responsibility to the construction team that it has never contacted: 1, the construction team to the contractor to claim rights, contrary to the principle of fairness, should not become judicial guidance. The construction team is not the subject of the contract under the construction project contract dispute, not the actual construction person, not the scope that should be considered in civil and commercial cases, and its interest protection should belong to the functional category of the administrative construction department, and in practice, the wage deposit system, bank guarantee system and labor supervision system of migrant workers have all become the channels to safeguard their legitimate rights and interests. From the contractor's point of view, if the provisions of the regulations on the protection of migrant workers' wages allow the construction team to file a lawsuit against it, the contractor is often inexplicably sued, followed by property preservation. This is extremely unfair to the contractor. The employer needs to spend a lot of litigation energy, prove in numerous cases that he no longer has project arrears, or realize account unsealing through property replacement to maintain normal operation, which actually makes him in a kind of insecurity: on the one hand, he does not know when he will be sued and sealed up again; On the other hand, I don't know why the contractor didn't pay the project payment in full to the downstream subcontracting teams and teams. In addition, in practice, there are also contractors or subcontractors due to poor management, unable to pay the actual construction of the project, team wages, will negotiate fictitious claims, false litigation, etc., thereby harming the rights and interests of the contractor. 2, the construction team has no right to require the contractor to pay the project. According to the provisions of Article 43 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Construction Contracts of Construction Projects, (I) the Interpretation of the Supreme People's Court [2020] No. 25, the main body that requires the employer to bear the responsibility within the scope of the unpaid construction project price is only the "actual constructor". However, Article 7 of the "Answers to Several Questions of the First Civil Court of Shandong Higher People's Court on the Trial of Construction Project on the Trial of Construction Contract, the construction team does not belong to the actual construction person in the legal sense. Therefore, the construction team has no right to file a dispute over the construction contract and require the contractor to pay the project money to it. 3. The construction team requires the contractor to advance the wages of migrant workers who are owed in advance, and should bear a greater burden of proof, and should be strictly controlled in judicial practice. First of all, the construction team shall bear the burden of proof for the direct causal relationship between "the employer fails to allocate the project funds in time according to the contract" and "the wage arrears of migrant workers"; and the determination of whether there is a "causal relationship" can be comprehensively considered from factors such as the employer's payment amount, payment proportion, labor cost proportion, and non-payment reasons, it is not simply and roughly determined that the contractor should bear the responsibility of "advance payment" as long as there is the fact of "arrears of project payment" and the fact of "arrears of migrant workers' wages; Secondly, in the case that the employer and the general construction contractor have not yet settled the account, since the employer cannot find out the facts such as whether the employer owes the project payment and the amount owed, in order to avoid infringing on the rights and interests of other subjects and not to avoid litigation, it should be determined that the conditions for the construction team to require the employer to assume the responsibility for advance payment within the scope of the project payment are not fulfilled; Third, in the case that the employer and the general construction contractor have not yet settled the settlement, as long as the employer reasonably explains that the settlement has not yet been made for the purpose of delay, and can prove that it does not owe the progress payment at present, such as providing monthly progress statements, payment vouchers, etc., it should be determined that it does not owe the project payment and does not need to bear the responsibility of "advance payment. 4. epilogue The Regulations on Guaranteeing the Payment of Migrant Workers' Wages stipulate that the employer shall advance the arrears of migrant workers' wages within the limit of the outstanding project payment. This clause has caused the employer to be innocent and involved in the lawsuit, and the judicial practice is different, and it has also been criticized by the theoretical circle. The only basis for its existence lies in the position of "special protection of the interests of migrant workers"; with the increasing improvement and improvement of the protection system for the interests of migrant workers, construction teams have not used this clause as a "shield" for a long time. As far as the contractor is concerned, although the "involved in the lawsuit" is indeed "innocent", once the lawsuit is involved, if you want to get out, the effort is still routine, such as timely and sufficient labor costs.

2022-07-04

Construction project construction contract dispute first judgment case.

Case description Company A is a private enterprise with real estate development and management qualifications. Company B has the special qualification for general contracting of construction projects. In 2017, Company A identified Company B as the construction unit of a residential project it invested in and developed by inviting tenders. Company B contracted the construction project invested and developed by Company A. The two parties signed two contracts for the project, namely the "black and white" contract. The actual performance of the contract clearly stipulates that "if the contractor is unable to continue to perform or clearly indicates that it does not perform or has substantially stopped performing the contract, the party issuing contract may notify the contractor to terminate the contract immediately and deal with it in accordance with the relevant laws. If the contractor fails to take measures to rush the work for more than 30 days, the party issuing contract has the right to terminate the contract." Later, during the performance of the contract, Company B requested the construction period to be postponed and the material and labor costs to be increased, and Company A was required to pay the losses on the grounds that the project would stop production, outage, material and labor costs would rise. In this regard, the two sides did not reach an agreement. Since then, part of the project is in a suspended or semi-suspended state. Company A has repeatedly urged, but Company B still refuses to resume work. In 2018, Company A mailed a notice of termination of the contract to Company B in accordance with the contract, notifying Company B of the termination of the project general contract signed by both parties (actual performance of the contract). After Company B receives the notice of cancellation. In the same year, Company A filed a lawsuit to confirm that the contract in question had been terminated and demanded that Company B pay liquidated damages and compensate for the losses. litigation ideas The key point of the lawsuit is to confirm which of the two contracts is the actual performance of the contract and the breach of contract by Company B. In this case, the contract number and contract amount filled in by company B in the application form for payment of project funds to company a are completely consistent with the construction contract provided by company a in the lawsuit. therefore, the contract provided by company a is the actual performance of the contract by both parties, the true intention of both parties, does not violate the mandatory provisions of laws and administrative regulations, and is a valid contract. both parties shall fully perform their respective obligations according to the contract. Company A mailed a notice of termination to Company B in accordance with the actual performance of the contract. Company B did not raise any objection after receiving the notice of termination. During the trial, Company B recognized the fact that the contract had been terminated and Company B admitted that it had stopped the construction of the project on a certain day. Therefore, Company A requested to confirm that the contract involved in the case provided by it had been terminated and complied with the legal provisions. In view of the fact that Company A requests to confirm that the contract has been terminated in this case, the facts are clear, and other claims of Company A are more complicated. According to the relevant legal provisions of "advance judgment" in the the People's Republic of China Civil Procedure Law, in order to prevent the loss of work stoppage from continuing to expand, Company A applies to the court to make an advance judgment to confirm that the contract has been terminated. Litigation results Based on the above facts and relevant legal provisions, the court made a first judgment, the judgment confirmed that the contract has been terminated, and other claims of Company A will be judged after the relevant facts are found out. description of meaning This case is to use the first judgment litigation ideas to solve the construction contract dispute cases. The plaintiff's request for confirmation of the termination of the contract is clear. In order to prevent the loss of work stoppage from continuing to expand, the plaintiff, in accordance with relevant laws and regulations, applied to the court for a first judgment that the contract has been terminated. For the plaintiff's other claims, due to the complexity, the judgment will be made after the relevant facts are found out. The first judgment is to face difficult cases and multiple litigation requests of the parties. When some facts are clear, it can ensure timely access to judgments, prevent litigation delays, and improve litigation efficiency.

2022-06-27

Viewpoint | Analysis of the validity of private entrusted financial contracts

Overview of 1. Private Entrusted Financial Management Entrusted financial management is an economic activity in which the principal entrusts his funds, financial assets, etc. to the trustee, who invests the assets in futures, securities and other trading markets or manages them through other financial forms, and the proceeds are distributed by both parties as agreed or the trustee collects agency fees. According to the main characteristics of the trustee, entrusted financial management can be divided into financial institutions entrusted financial management and non-financial institutions entrusted financial management. Financial institutions engaged in entrusted financial management business mainly include commercial banks, securities companies, trust companies, insurance companies and fund management companies. Non-financial institutions as trustees mainly include asset management companies, investment consulting companies and natural persons with certain professional knowledge. In recent years, due to the lack of specific supervision of the corresponding financial institutions, various forms and the lack of standardized guidance on rights and obligations, disputes have occurred frequently. In judicial practice, there are still differences in the validity of the private entrusted financial management contract, and this paper mainly combines the typical cases in judicial practice to analyze the effectiveness of the private entrusted financial management contract. The influence of the qualification of the 2. trustee on the effectiveness of the private entrusted financial contract. If the trustee is a legal person of a non-financial institution, the (I) shall review the content of its entrusted financial management and its business qualifications, subject qualifications, business scope, etc. If the content of the trustee's entrusted financial management exceeds its business scope, if the excess is prohibited, Restricted operation and franchise operation, the entrusted financial management contract is generally deemed invalid. Except for the trustee who accepts the entrustment of an unspecified object to engage in fiduciary wealth management business, in general, a contract entered into by a non-financial institution who accepts the entrustment of a specific object to engage in private entrusted wealth management is not considered invalid. However, if the trustee exceeds the scope of business and the excess is prohibited, restricted or franchised, or if the trustee is a practitioner in the financial industry, the financial contract will be deemed invalid. Typical case: Shanghai No.1 Intermediate People's Court (2020) Hu 01 Min Zhong No. 1847 Judgment held that "First of all, this court believes that Chen Jiping is listed as the authorized representative of relevant subordinate funds, regardless of the three-party naming on the front page of the dispute subscription agreement or the agreement in the general provisions of Article 1 of the dispute subscription agreement, and has made an agreement on the rights and obligations different from Puying Company as an investment consultant. In the process of the implementation of the dispute subscription agreement, Chen Jiping also carried out the relevant collection and transfer of funds in his own name in accordance with the agreement, and signed relevant documents on behalf of Ma Wenwei. Although Chen Jiping argued that these acts were the performance of his duties, this claim was clearly inconsistent with the contractual agreement and actual performance. After examination, the court has so far failed to provide sufficient evidence to prove that before and after the signing of the dispute subscription agreement, Ma Wenwei to accept its entrusted financial management and has a settlement relationship with the other party of the contract subject is Puying Company, and Chen Qiping and Ma Wenwei there is no direct payment, settlement relationship is known and recognized. Therefore, it is difficult for the Court to accept Chen Kiping's independent subject of his non-litigation subscription agreement. The court of first instance said that Chen Qiping was only a channel for Puying Company to invest in the trust company and collect funds, so the reasons and basis for Chen Qiping's determination that he did not have to bear civil liability were insufficient, and it was difficult for the Court to agree. Secondly, the parties in this case have not raised any objection to the invalidity of the subscription agreement, and there is no evidence that Ma Wenwei was obviously at fault in signing the subscription agreement in this case. In contrast, Chen Jiping and Puying, as specialized securities investment practitioners, are obviously more professionally aware of the investment projects and legal consequences involved in the case, and the prohibitions on the securities industry should be clearer. Knowing that the dispute subscription agreement violated the spirit of the relevant documents of the financial regulatory authorities and violated the order of securities market supervision, he still signed the dispute subscription agreement with Ma Wenwei, which eventually led to the invalidity of the agreement. Chen Jiping and Puying Company have unshirkable responsibilities. As the fault party, they should jointly bear Ma Wenwei's capital loss in accordance with the law". (II) if the trustee is a natural person, he or she generally does not need to be approved for accepting financial management entrustment, but if the trustee is a financial industry practitioner, the trustee should be examined for any violation of the prohibition of employment. For example, securities companies, trust companies and other practitioners privately accept financial management entrustment in their own name. In such cases, violation of the mandatory provisions of legal effect will render the entrusted financial management contract invalid. Typical case: Beijing Haidian District People's Court (2021) Beijing 0108 Minchu No. 29015 Judgment held that "judging from the WeChat chat records of both parties and the facts stated by all parties, Li Shengli accepted Yan Chunsheng and Liu Huiting's entrustment to manage their respective stock accounts and carry out relevant trading operations according to their own will and experience, although there is no written contract between the parties, but between Yan Chunsheng and Li Shengli and between Liu Huiting and Li Shengli is the legal relationship between the entrusted financial contract. According to the facts stated by the parties, Li Shengli was a securities practitioner when he accepted the entrustment of the two persons to operate the stock account for financial management. According to the provisions of paragraph 1 of Article 40 and paragraph 2 of Article 136 of the the People's Republic of China Securities Law, employees of securities trading places, securities companies and securities registration and settlement institutions, staff of securities regulatory institutions and other personnel prohibited by laws and administrative regulations from participating in stock trading shall not hold, buy or sell stocks or other securities with equity nature directly or in the name of others during their term of office or within the statutory time limit, nor may they accept shares or other securities of an equity nature as gifts from others. The employees of a securities company shall not privately accept the client's entrustment to buy or sell securities. The above provisions are mandatory provisions of validity. Therefore, in this case, Li Shengli, as a securities practitioner, engaged in securities wealth management business, and his entrusted wealth management contract with Yan Chunsheng and Liu Huiting is invalid". 3. the validity of the bottom clause in the private entrusted financial management contract. There is no clear agreement in the current law on the validity of the guarantee clause of the private entrusted wealth management contract. At present, in judicial practice, most courts have found that the minimum guarantee clause violates the principle of fairness in civil law and the principle of responsibility in entrustment contracts, violates economic laws, and should be deemed invalid; a few courts have found that the minimum guarantee clause does not infringe on national interests, does not disturb the order of the financial market, damages the public interest, and does not violate public order and good customs, so it should be deemed valid. Cases identified as invalid: Shanghai No. 2 Intermediate People's Court (2022) Hu02 Minzong No. 729 Judgment determined that "the entrusted financial management contract is the true intention of Fang Peili and Zheng Chao, and it does not violate the mandatory provisions of laws and administrative regulations. It is legal and effective. Both parties should comply with the principle of good faith, but the guarantee clause agreed by both parties should be invalid. Article 5 of the Receipt states that" the third party's income commitment shall ensure that the income shall not be less than 28% from May 26, 2015 to December 31, 2015 ", that is, the trustee Zheng Chao and the principal Fang Peili agreed to guarantee the minimum return of principal and interest, which is a guaranteed clause. Although the guarantee clause is the result of the autonomy of both parties, it unreasonably transfers the risk burden category that belongs to the client to the trustee, resulting in unequal civil rights and obligations of both parties, violating the basic principle of the client's own risk in the entrustment contract, and also violating the principle of fairness and the basic laws of the financial market, which is not conducive to promoting the healthy development of the securities market and maintaining the stability of the securities market, therefore, the agreement of the guarantee clause should be found to be invalid". Cases found to be valid: Guangdong Guangzhou Intermediate People's Court (2021) Yue 01 Min Zhong No. 25284 found that "regarding the validity of the guarantee clause involved in this case, the court's analysis is as follows: first, Article 144 of the the People's Republic of China Securities Law stipulates:" Securities companies shall not make promises in any way to the profits of customers' securities trading or to compensate for the losses of securities trading." In this case, although Deng Zhongyi, as the trustee, made a promise to ensure that the principal of the entrusted assets for stock investment will not be lost, Deng Zhongyi does not belong to the securities companies and their employees that are not allowed to engage in financial management on behalf of clients and promise returns as stipulated in articles 144 and 145 of the the People's Republic of China Securities Law, while the restrictive provisions of the law on the behavior of special subjects cannot be directly applied to non-special subjects by analogy, therefore, there is no violation of the aforementioned provisions or other mandatory provisions of laws and regulations resulting in the invalidity of the contract. Secondly, the performance of the contract involved in this case is that Deng Zhongyi was entrusted to use his own funds in He Qianlan's account to invest in securities for him, which does not involve the national interest, nor does it endanger the stability of the financial market and the public interest of society, such as the use of capital allocation for highly leveraged transactions. Deng Zhongyi involved in accepting entrustment to carry out stock investment financial management disputes, in Guangzhou two-level court only case, Deng Zhongyi self-admitted that is only accept He Qianlan's entrustment to carry out entrusted financial management, the principal does not come from the society is not a specific object, Deng Zhongyi is not mainly entrusted financial management profit income as a source of income. Therefore, the minimum guarantee clause involved in the case did not infringe on national interests, did not reach the level of disrupting the order of the financial market and harming the public interest, and there was no violation of public order and good customs. Finally, the civil status of both parties in this case is equal, and neither of them is the subject of monopoly in the market. Both parties have sufficient choice when determining the subject of the transaction. Both parties have full freedom of expression and freedom of contract on whether to conclude the entrusted financial management contract and the specific terms of the contract. The terms reached should be considered as the result of independent consultation and prudent decision-making, it is the embodiment of the principle of voluntary and the principle of autonomy of the civil subject. Judging from the WeChat chat records of both parties, Deng Zhongyi had bought shares from He Qianlan recommend many times and made analysis before the two parties established a private entrusted financial management contract. It can be seen that Deng Zhongyi has certain professional investment and financial management experience and knowledge, and has the ability to predict investment risks. Deng Zhongyi in the conclusion of the contract in order to strive for 30% of the profit sharing, voluntarily bear the risk, in the premise of not bearing the obligation to contribute to the bottom as a condition, voluntarily accept He Qianlan entrusted to use his funds for stock investment. Even because the securities market is a high-risk investment place, Deng Zhongyi's stock trading began to suffer losses in October 2019. Since then, Deng Zhongyi has continued to pay a "guaranteed profit" of 3000 yuan every month from November 2019 to March 2020 without raising any objection to the validity of the guaranteed clause. Therefore, the guaranteed clause is not invalid because it violates the principle of fairness. Based on the above analysis, the guaranteed clause formed by Deng Zhongyi and He Qianlan through agreement does not violate the prohibitive provisions of laws and regulations. The two parties distribute the benefits and losses between the parties. The rights and obligations of the parties are essentially balanced. The guaranteed clause is valid. The court of first instance found that the guarantee clause involved in the case was invalid, and the court corrected it." After the 4. determines that the guarantee clause is invalid, the validity of the private entrustment contract and the principle of loss determination. In judicial practice, after determining that the guarantee clause is invalid, most courts have determined that the guarantee clause belongs to the purpose clause and core clause of the entrusted financial management contract and cannot become a relatively independent invalid part of the contract. Therefore, the ineffectiveness of the guarantee clause leads to the invalidity of the entrusted financial management contract as a whole, and both parties to the contract share the losses arising from the performance of the entrusted financial management contract according to their fault. Typical case: Beijing Financial Court (2022) Beijing 74 Minzong No. 126 Judgment held that "this court believes that the agreement in the Account Entrusted Investment Agreement that" if Party A's account suffers a loss of principal after the end of the entrustment, Party B shall compensate Party A "by ensuring that the investment principal will not be lost and Li Jisheng will be exempted from the investment risk, which is a guaranteed clause, in view of the fact that the" guaranteed clause "belongs to the purpose and core clause of the entrusted financial management contract in this case, the court of first instance ruled that this cannot be a relatively independent invalid part of the contract, resulting in the" Account Entrusted Investment Agreement "signed by Li Jisheng and Jin Zhichao to entrust the financial management contract as a whole invalid, and there is no obvious impropriety. After the entrusted financial management contract is confirmed to be invalid, the trustee shall return the principal amount of the entrusted assets to the principal, and the income from the entrusted financial management shall first offset the amount of principal that should be returned". 5. Conclusion With the increasing number of disputes over private entrusted financial contracts, how to identify the effectiveness of private entrusted financial management in practice is undoubtedly crucial. The author thinks that if the trustee does not take "entrusted financial management" as the main business, and does not violate the legal effect of prohibition, the private entrusted financial management contract including the guarantee clause has legal space. Here, we look forward to further attention and response to this issue at the judicial level. 6. legal basis Civil Code Article 6 When engaging in civil activities, a civil subject shall follow the principle of fairness and reasonably determine the rights and obligations of all parties. Article 999 A contract of entrustment is a contract in which the principal and the trustee agree that the trustee shall handle the affairs of the principal. Article 929 If a paid entrustment contract causes the principal's loss due to the trustee's fault, the principal may request compensation for the loss. For a gratuitous entrustment contract, if the trustee's intentional or gross negligence causes the principal's loss, the principal may request compensation for the loss. If the trustee exceeds his authority and causes losses to the principal, he shall compensate for the losses. Securities Act of the People's Republic of China Article 40 Employees of securities trading venues, securities companies and securities registration and settlement institutions, employees of securities regulatory bodies and other persons prohibited by laws and administrative regulations from participating in stock trading shall not hold, buy or sell stocks or other securities of an equity nature directly or under a pseudonym or in the name of another person during their term of office or within the statutory time limit, nor may they accept shares or other securities of an equity nature as gifts from others. Article 135 A securities company shall not make a commitment to the proceeds of the trading of securities by its clients or to compensate for the losses incurred in the trading of securities. Article 136 If a practitioner of a securities company executes the instructions of the securities company to which he belongs or violates the trading rules by taking advantage of his position in the course of securities trading activities, the securities company to which he belongs shall bear full responsibility. The employees of a securities company shall not privately accept the client's entrustment to buy or sell securities. the People's Republic of China Securities Investment Fund Law Article 20 The fund manager of a publicly offered fund and its directors, supervisors, senior managers and other practitioners shall not commit the following acts: (4) It is prohibited to promise gains or bear losses to fund share holders in violation of regulations. Interim Provisions on the Operation and Management of Private Asset Management Business of Securities and Futures Institutions Article 3 Securities and futures business institutions and relevant sales institutions shall not sell asset management plans in violation of regulations, and shall not improperly publicize, mislead and defraud investors, and promise investors that the principal will not be lost or the minimum return will be promised in any way, including but not limited to the following situations: (1) There are expressions in asset management contracts and sales materials that contain the connotation of capital preservation and return, such as zero risk, guaranteed return, worry-free principal, etc; the name of the (II) asset management plan contains the word "capital preservation"; the (III) and investors privately sign repurchase agreements or commitment letters and other documents, directly or indirectly promise to protect capital and income.

2022-06-20

Viewpoint... An analysis of the liability of shareholders for the company's debt.

1. Introduction The failure of shareholders to fulfill their capital contribution obligations refers to the behavior of the shareholders of the company who fail to fulfill their capital contribution obligations or fail to fully fulfill their capital contribution obligations in accordance with the articles of association of the company. Shareholders who have not fulfilled their capital contribution obligations violate the principle of capital enrichment of the company, which not only harms the interests of the company, but also infringes the interests of other shareholders and creditors of the company, thus affecting the normal development of the company's business. In judicial practice, the case of the company's creditors suing the shareholders who have not fulfilled the obligation of capital contribution to bear the supplementary liability occurs from time to time, especially after the enterprise capital is changed from the original paid-in system to the payment system, the shareholders' insufficient capital contribution, overdue capital contribution, false capital contribution, evasion of capital contribution and other acts have increased, which leads to more special legal problems. The third interpretation of the company law gives the creditors of the company the right to investigate the capital contribution liability of the shareholders who have not fulfilled their capital contribution obligations, rather than the right of subrogation. Article 13 clearly stipulates that the creditors of the company have the right to request the shareholders who have not fulfilled their capital contribution obligations to bear supplementary compensation liability for the part of the company's debts that cannot be paid within the scope of the company's liability property, it is an asset that creditors can expect, which gives creditors a legitimate right to make up their contributions. In the previous article, "The limitation of the company's surplus distribution right of shareholders who have not fulfilled their capital contribution obligations", the author briefly analyzes the limitation of the company's surplus distribution right of shareholders who have not fulfilled their capital contribution obligations, and this article will mainly discuss the liability of such shareholders for the company's debts. 2. relevant laws and regulations (I) Company Law Interpretation II Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. (II) Company Law Interpretation III 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 to withdraw capital contributions shall bear supplementary compensation liability for the unpayable part of the company's debts within the scope of the principal and interest of the withdrawn capital contributions, and other shareholders, directors, senior managers or actual controllers who assist in the withdrawal of capital contributions If the controller assumes joint and several liability for this, the people's court shall support the shareholder who has already assumed the above-mentioned responsibilities and other creditors make the same request. Article 18 stipulates that if a shareholder of a limited liability company fails to perform or fully performs the obligation of capital contribution, the transferee knows or should know that if the company requests the shareholder to perform the obligation of capital contribution and the transferee bears joint and several liability for it, the people's court shall support it; if the creditor of the company brings a lawsuit against the shareholder in accordance with the second paragraph of Article 13 of these provisions, At the same time, the people's court shall support. (III) 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. (IV) Additional Provisions on Implementation of Changes Article 19 stipulates that the company as the person subject to execution has insufficient property to pay off the debts determined by the effective legal documents, and its shareholders transfer their equity if they fail to fulfill their capital contribution obligations in accordance with the law. The people's court shall support the application for the executor to change or add the original shareholder or the promoter who bears joint and several liability for the capital contribution in accordance with the provisions of the company law. Minutes of the Nine Minds in (V) Article 6 stipulates that under the registered capital subscription system, shareholders shall 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. (VI) company law (revised draft) for comments Article 48 stipulates that if a company is unable to pay off its debts as they fall due and is manifestly insolvent, the company or its creditors shall have the right to require shareholders who have paid their capital contributions but have not paid their capital contributions in advance. 3. Focus Analysis Should the shareholders of the (I) defective capital increase bear supplementary compensation liability for the debts before the capital increase of the company? The view that shareholders should bear supplementary liability for the claims formed after the capital increase is not controversial in judicial practice, but there are two views in practice as to whether shareholders should bear the debts before the capital increase of the company. The first view is that the company is only subject to supplementary liability for the debt after the capital increase, and the second view is that the time of the formation of the claim is not directly related to whether the shareholders should be liable. According to the Reply of the Executive Office of the Supreme People's Court on Whether Shareholders Should Be Responsible to the Company's Creditors for Defects in Capital Increase after the Establishment of the Company, shareholders with defective capital increase shall only bear corresponding responsibilities to the traders (creditors of the company) after the capital increase registration, and shall not be liable for the company's debts incurred in the transaction with the company before the capital increase. However, the Company Law Interpretation III, published thereafter, does not make special provisions on the timing of the defective capital increase, as the interpretation is of higher legal rank and is therefore preferred, I .e., the defective capital increase shareholders are liable for supplementary liability for the company's debts regardless of when they are formed. Can (II) creditors request shareholders who have not reached the end of the capital contribution period to fulfill their capital contribution obligations in advance? First of all, Article 35 of the Enterprise Bankruptcy Law clearly stipulates that in the case of bankruptcy, if the capital contribution of shareholders is accelerated to expire, and after the people's court accepts the bankruptcy application, the debtor's capital contribution has not fully fulfilled its capital contribution obligations, the administrator shall require the capital contribution to be paid by the capital contribution, without being limited by the time limit of the capital contribution. Secondly, in the case of dissolution, there is also a corresponding legal basis for the accelerated maturity of shareholders' capital contributions. Article 22 of Interpretation II of the Company Law clearly stipulates that when the company is dissolved, the outstanding capital contributions of shareholders shall be regarded as liquidation assets. As to whether the accelerated maturity system is applicable to the non-bankruptcy liquidation stage, there is no unified conclusion of judicial decisions because there are no clear laws and regulations or judicial interpretations. Among them, there are two main bases for holding a positive attitude: first, the period of shareholders' capital contribution is an agreement between the company and the shareholders, and cannot be opposed to a third party other than the two; second, Article 6 of the Jiumin Minutes has added two situations in which shareholders' capital contribution is accelerated under the subscription system, and its normative intention is to better protect the interests of creditors. The negative attitude is based on the fact that the Company Law does not clearly stipulate the accelerated maturity system of shareholders' contributions in the case of non-bankruptcy liquidation stage, and it is not appropriate to expand the interpretation of the provisions of the law on "unfulfilled or incomplete capital contributions"; moreover, individual liquidation in the case of bankruptcy or dissolution is not conducive to the fair liquidation of all creditors. Article 48 of the newly published Company Law (Revised Draft) for comments in December 2021 further clarifies the provisions of the Nine People's Minutes on the accelerated maturity of shareholders' contributions in non-bankruptcy situations, making it a legislative norm and directly clarifying that the judgment standard for accelerated maturity of shareholders' contributions in the non-bankruptcy stage is "the company cannot pay off its due debts and obviously lacks solvency", which is more conducive to the protection of the interests of creditors. Should the original shareholders be liable for the debts of the (III) if the shareholders transfer their shares without fulfilling their capital contribution obligations? According to Article 18 of the interpretation III of the company law, if the shareholders who fail to fulfill the obligation of capital contribution transfer their equity, if the original shareholders know or should know, they shall bear the obligation of capital contribution, because the paid in capital contribution can be inquired through the national enterprise credit information publicity system, etc., so according to the above provisions, the original shareholders and the transferee shall bear joint and several liability for this. At the same time, Article 19 of the Additional Provisions on Changes in Implementation also stipulates that at the stage of implementation, creditors may add that the original shareholders who have not fulfilled their capital contribution obligations in accordance with the law, that is, the transfer of equity, shall be the executed person. However, if the shareholder's capital contribution is not due at the time of equity transfer, can the creditor request the transferring shareholder to take responsibility for the company's debts? There are three views on this issue in the theoretical and judicial practice circles. The first point of view is that the creditor cannot claim rights against the transferring shareholder, because the transferring shareholder's capital contribution is flawless and the fact of the transfer has been registered and publicized; the second point of view is that the creditor can claim that the transferring shareholder shall bear joint and several liability. The "failure to perform or fully perform the obligation of capital contribution" stipulated in Article 18 of the Interpretation III of the Company Law includes "the period of unexpired capital contribution"; The third point of view, the original shareholders shall bear joint and several liability, otherwise, the original shareholders shall not bear joint and several liability. In judicial practice, there are also some cases that the Company Law Interpretation III was promulgated in 2011, when the capital contribution system had not yet been implemented, so Article 18 does not apply to the original shareholders who have not fulfilled their capital contribution obligations to transfer shares. Yang Linping, then president of the Second Civil Division of the Supreme People's Court, also proposed in the Supreme People's Court on Several Specific Issues in Current Commercial Trial Work that Article 18 of the Judicial Interpretation of the Company Law is to make up for the civil liability of capital contributions when false capital contributions are made. At present, there is no law or judicial interpretation to clearly stipulate who shall bear the responsibility for the transfer of equity when shareholders fail to pay their capital contributions because the capital contribution period has not expired. Because the unpaid contribution at this time is legal rather than illegal, the provisions of the above judicial interpretation cannot be applied of course. It can be seen that the Supreme Court's decision is more inclined to the first view, that is, the original shareholders in the case of the capital contribution period has not yet expired, that is, only the current shareholders of the outstanding capital contribution period to bear supplementary liability for the company's unliquidated debts. 4. related cases (I) Case 1:(2019) Chuan 01 Min Zhong No. 15335 Basic case: In 2007, Times Company sued Sichuan Construction Company for a dispute over a construction contract. The court finally ordered Sichuan Construction Company to pay 400000 yuan to Times Company. In 2015, Sichuan Construction Company held a shareholders' meeting and made a resolution to increase the company's registered capital from 10 million yuan to 20 million yuan. The increased registered capital of 10 million yuan was contributed by shareholder Gao Yuan in cash, and the subscription time was December 31, 2016. Before. In 2019, Plaintiff Times Company sued Defendant Highland Compensation Times Company for project payments, interest on funds for overdue payments, case acceptance fees and its litigation costs. The court of first instance (Chengdu Qingyang District People's Court) held that: Plateau is a shareholder of Sichuan Construction Company, its capital increase subscription time has expired, Plateau should fulfill the obligation of shareholder capital contribution. Although the debt involved in the case occurred before the plateau's capital increase, the plateau's failure to fulfill its capital contribution obligations violated the company's capital maintenance principle and posed a greater threat to the interests of the company's creditors. The current Sichuan Construction Company's assets are not enough to pay off the company's creditor's rights. The Times Company has the right to request the shareholder Plateau to bear the liability for compensation. Therefore, the Times Company has the right to claim the 200000 yuan for the project payment and the interest occupied by the overdue payment of the company. The court of second instance (Chengdu intermediate people's Court of Sichuan Province) held that the facts of the first instance judgment were clear, the applicable law was correct, and should be maintained. (II) Case 2:(2017) Zhejiang Min Shen No. 1111 The basic case: after the effective judgment, kangrun washing company owed the plaintiff Miao fugao 50400 yuan. after entering the execution termination procedure because kangrun washing company had no property to execute, miaofugao filed a lawsuit demanding ye mankang and other three shareholders to bear joint and several supplementary liability for the amount owed by kangrun washing company to the extent that the company did not make capital contribution. After examination, Congrun Washing Company was established on July 24, 2014. According to the articles of association of the company, the registered capital of the company is 500000 yuan, with Ye Mankang and Xu Fengyong each contributing 150000 yuan, Xie Baojin contributing 200000 yuan, and the three shareholders contributing before December 31, 2054. On August 18, 2014, Ye Mankang and Xu Fengyong transferred their shares to Xie Baojin, and then went through the industrial and commercial change registration procedures, but the revised articles of association did not change the time for shareholders to subscribe for capital contributions. The Court of Second Instance (Zhoushan Intermediate People's Court) held that: According to Article 26 of the the People's Republic of China Company Law as amended in 2013, the registered capital of a limited liability company is the amount of capital contribution paid by all shareholders registered with the company registration authority. The period of capital contribution subscribed by the shareholders of Congrun Washing Company is before December 31, 2054, before which the shareholders do not need to actually make capital contributions. As a creditor of the company, it has no right to require the shareholders of the company to assume the responsibility of performing the capital contribution. Only in the event of the dissolution of the company, bankruptcy and other statutory circumstances, the shareholders of the contribution of the obligation to accelerate the expiration of the company's creditors in accordance with the Supreme People's Court on the application.<中华人民共和国公司法>若干问题的规定（三）》第十三条第二款的规定，要求未履行或者未全面履行出资义务的股东在未出资本息范围内对公司债务不能清偿的部分承担补充赔偿责任。据此，判决驳回苗福高的诉讼请求。   再审法院（浙江省高级人民法院）认为：一、二审法院驳回苗福高的诉讼请求并无不当。   （三）案例三：（2021）京02民终17362号 基本案情：被告庄惟嘉系第三人亚太迈思公司的股东，经生效判决，亚太迈思公司应付东莞祥丰公司18.2万元货款，因亚太迈思公司未履行判决确定的义务，东莞祥丰公司向法院申请强制执行，执行过程中，东莞祥丰公司又提出执行异议，主张庄惟嘉作为亚太迈思公司的原股东未履行出资义务，申请追加庄惟嘉为案件的被执行人，在其认缴未实缴106万元的出资范围内承担清偿责任，庄惟嘉称其认缴出资期限为2044年，且于2018年开始与李茂盛洽谈股权转让事宜，在向李茂盛转让股权时，已向其告知亚太迈思公司的涉诉情况，亚太迈思公司在双方进行股权转让时除货物外没有其他资产，故庄惟嘉以8万元的价格将股权转让给了李茂盛，故不同意</中华人民共和国公司法>

2022-06-17

Professional perspective | Shareholders writing off a company without liquidation may not be jointly and severally liable for the company's debts

Brief case] A mechanical and electrical Co., Ltd. (hereinafter referred to as "mechanical and electrical company") was established in 2010 with a registered capital of 10 million yuan. Among them, shareholder Zhang holds 30% and shareholder Li holds 70%. In 2018, the mechanical and electrical company ceased operations after being sued for an external debt of 5 million yuan, and the court ruled that it was finally executed because it had no property to enforce. After the shareholders, shareholders Zhang and Li wrote off the mechanical and electrical company without liquidation. Later, the creditors demanded that the shareholders Zhang and Li be liable for compensation on the grounds that the shareholders were "idle in fulfilling their liquidation obligations. focus of controversy] If a limited liability company meets the conditions for liquidation, should the shareholders be liable for liquidation if they cancel the company without liquidation (neglecting to fulfill their liquidation obligations)? legal analysis] ▶Article 183 of the Company Law stipulates that "...... the liquidation group of a limited liability company shall be composed of shareholders, and the liquidation group of a joint stock limited company shall be composed of directors or persons determined by the general meeting of shareholders", and the Supreme People's Court's Rules on the Application<中华人民共和国公司法>Article 18 of the (II) on Certain Issues stipulates that "the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to set up a liquidation group to start liquidation within the statutory time limit, ...... the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to perform their obligations ......", and the liquidation obligor of a limited liability company is "shareholder", the liquidation obligors of a joint stock limited company are "directors and controlling shareholders". According to the Supreme People's Court's Application.<中华人民共和国公司法>Article 18 of the (II) on Certain Issues stipulates: "The shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in the devaluation, loss, damage or loss of the company's property. If the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused, the people's court shall support it in accordance with the law. If the shareholders of a limited liability company, the directors and controlling shareholders of a limited liability company fail to perform their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and the liquidation cannot be carried out, and the creditors claim that they are jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law." referee gist] (2021) Lu Min Zhong No. 1937 The shareholders of a limited liability company are negligent in fulfilling their liquidation obligations and are jointly and severally liable for the company's debts: (1) The shareholders are negligent in fulfilling their obligations; (2) The company's main property, books, important documents, etc. are lost and cannot be liquidated; (3) There is a causal relationship between the failure of shareholders to perform their obligations and the inability to liquidate the loss of the company's main property, books, important documents, etc. In this case, there is a causal relationship between the non-payment of the creditor's claim and the fact that the electromechanical company has no property to enforce. Even if the liquidation and cancellation procedures of the electromechanical company are flawed or even illegal, it cannot be concluded that there is a causal relationship between the non-payment of the creditor's claims involved and the failure of the shareholders of the electromechanical company to fulfill their liquidation obligations. Creditors should be well aware that even if the shareholders of the electromechanical company fulfill their liquidation obligations or they receive the liquidation notice of the electromechanical company and they declare their claims in accordance with the law, it will be difficult to be paid off. Therefore, in the absence of the element of causality, creditors claim that shareholders Zhang and Li should be liable for the debts owed by the mechanical and electrical company, without factual and legal basis. Lawyer Advice] When there is a reason for dissolution of a limited liability company, the shareholders fail to set up a liquidation group in time, resulting in devaluation, loss, damage or loss of the company's property, loss, damage or loss of the company's main property, account books, important documents, etc., and the liquidation cannot be carried out, the shareholders abuse the independent status of legal person and the limited liability of shareholders to seriously infringe the interests of creditors, creditors can pierce the legal person veil and require shareholders to bear joint liability for the company debts. However, if there is no causal relationship between the loss of the company's property or the company's inability to pay off its debts and the failure of the shareholders to set up a liquidation group in time and to fulfill their liquidation obligations, the shareholders may not be liable for compensation. Recommendations: A shareholder of a limited liability company shall, in order to avoid being claimed, do the following in the event of a dissolution of the company: 1. Establish a liquidation group in time; 2, to protect the company's property, to avoid the loss of company property; 3, after the establishment of the liquidation group to actively fulfill the liquidation obligations; 4, save the company's books, important documents; 5, shall not take advantage of the power to accept bribes or other illegal income, shall not embezzle the company's property; 6. If the company's property is found to be insufficient to pay off its debts, it shall apply to the court for bankruptcy in accordance with the law.</中华人民共和国公司法></中华人民共和国公司法>

2022-06-16

Administrative Litigation Vision (VI) | Administrative Litigation Evidence

Foreword Determined by the nature of administrative litigation, the ultimate fact that the evidence of administrative litigation is to prove is the legality of the accused administrative act. Under normal circumstances, the defendant bears the legal burden of proof to prove the legality of the accused administrative act. Throughout the proceedings, the defendant and his agent shall not collect evidence from the witnesses and the plaintiff on their own. The plaintiff may also request the people's court to collect evidence if it is difficult to collect evidence. 1 Types and Characteristics of Evidence in Administrative Litigation Administrative litigation evidence is all the facts that can prove the true situation of administrative cases. According to Article 33 of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Administrative Procedure Law"), administrative litigation evidence includes the following categories: (I) documentary evidence. It is an instrument recorded or expressed in words or symbols to prove the facts to be proved. (II) physical evidence. Refers to an article that uses the appearance, characteristics, quality, etc. of the article to explain part or all of the facts to be proved. (III) audiovisual materials. It refers to the factual materials related to the case recorded by means of audio or video recording. Audio tapes, videotapes and other items belong to the carrier, and the contents of their records belong to the audio-visual materials in the evidence. The audiovisual materials may be provided by the parties concerned, and the people's court may also, on its own initiative, request or copy them from the units or individuals concerned. (IV) witness testimony. Refers to the statement of the facts of the case made by the witness to the people's court orally or in writing. Except for those who are mentally or physically defective and cannot correctly express their will and the litigation agent of the case cannot be a witness in the case, any citizen and organization has the obligation to testify. Witnesses should generally appear in court in person to testify. If there are special circumstances that cannot appear in court, they may testify in the form of written testimony with the permission of the people's court. (V) the parties' statements. It refers to the statement of the facts of the case and the circumstances proving these facts submitted to the people's court by the person directly interested in the case. The statement of the parties is an important clue to find out the facts of the case, but the parties may adapt the objective facts for their own interests, so the people's court should conduct a comprehensive review in combination with other evidence in the case. (VI) identification conclusion. It refers to the technical conclusions made by appraisers with professional and technical expertise on special issues related to the case by using special instruments and equipment. Including medical identification, document identification, technical identification, accounting identification, chemical identification, physical identification, etc. (VII) inspection records and on-site records. The record of inspection refers to the records made by the staff of the administrative organ or the judicial personnel of the people's court for the investigation, inspection, measurement, drawing and photographing of the scene or articles related to the administrative case. On-site transcripts refer to the written records made by the staff of administrative agencies on the on-site conditions related to administrative cases and their handling in the course of administrative management. Evidence in administrative litigation should have three characteristics, namely, objective authenticity, relevance and legitimacy. Objective authenticity means that litigation evidence must be an objective fact that can prove the truth of the case and does not depend on subjective consciousness. Relevance means that the fact as evidence is not only an objective existence, but also has a logical connection with the facts to be found out in the case, so as to explain the facts of the case. Legitimacy means that the evidence must be provided by the parties in accordance with legal procedures, or by statutory authorities, statutory personnel in accordance with the statutory procedures for investigation, collection and review. Evidence that does not meet the above requirements cannot be used as the basis for the court to determine the facts to hear the case. Regardless of the form of the above seven kinds of evidence, the people's court examines its authenticity and legality, and at the same time examines the interrelation between the various kinds of evidence and the relationship with the facts to be proved. Burden of Proof in 2. Administrative Litigation The system of burden of proof is an important part of administrative litigation, and its specific meaning is that the parties who claim the existence of facts in litigation should bear the burden of proof, that is, "who claims, who gives evidence". In order to balance the unequal status of the parties in administrative litigation, the rule of the allocation of the burden of proof in administrative litigation in our country is that the defendant bears the burden of proof in principle, and in exceptional cases, the plaintiff bears the burden of proof, or the court investigates the evidence. (I) the defendant bear the burden of proof Article 34 of the Administrative Procedure Law stipulates: "The defendant shall bear the burden of proof for the administrative act he has committed, and shall provide the evidence for the administrative act and the normative documents on which it is based. If the defendant fails to provide or fails to provide evidence without justifiable reasons, it shall be deemed that there is no corresponding evidence." Therefore, the defendant, that is, the administrative organ, should bear the corresponding burden of proof to prove the legitimacy of its administrative act. "If the defendant fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons, it is deemed that there is no corresponding evidence", which is mainly applicable to the profit and loss administrative act made by the administrative organ against the administrative counterpart, because according to the principle of obtaining evidence before ruling, the administrative organ must have collected sufficient and conclusive evidence when making a profit and loss administrative act, and the administrative organ fails to provide evidence or fails to provide evidence within the time limit without justifiable reasons in litigation, it is difficult for the people's court to support the administrative act. However, when the administrative action involves the legitimate rights and interests of the third party, the simple application of this rule is to transfer the adverse consequences to the third party. This shows that the evidence of administrative litigation should not only be provided by administrative organs, and all legal evidence that can prove the facts of the case can become the basis for the final decision of administrative litigation. In the course of litigation, subject to the rule of "obtaining evidence first, ruling later", the evidence provided by the defendant to prove the legality of the administrative act can only be limited to the evidence that he has already collected when he made the administrative act. If the accused administrative act is made in the absence of evidence or insufficient evidence, the administrative act has been illegal. (II) the plaintiff bear the burden of proof Although the defendant bears the burden of proof for the legality of the administrative act, this principle of distribution of proof does not mean that all the facts to be proved in the administrative litigation shall be proved by the defendant. The plaintiff shall prove whether the conditions for prosecution are met, whether the accused administrative act exists and is implemented, the facts that have been applied for when prosecuting inaction, and the damage suffered in the case of administrative compensation. 1. Eligible for prosecution. Article 4 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" (hereinafter referred to as the "Provisions on Evidence") stipulates: "When citizens, legal persons or other organizations file a lawsuit in the people's court, they shall provide corresponding evidence materials that meet the conditions for the lawsuit." Whether the conditions for prosecution are met shall be provided by the citizen, legal person or other organization, that is, it is necessary to prove that it is the counterpart of the administrative act or a person who has an interest in the administrative act, otherwise the people's court will rule not to file the case or dismiss the prosecution after filing the case. 2. The existence and implementation of administrative acts. When the defendant has the burden of proof for the administrative act, he should provide the evidence and the normative documents on which the administrative act is based. It does not mean that the defendant needs to bear the burden of proof for all the facts of the accused administrative act. When the accused administrative act is an act, according to the above-mentioned legal provisions on the burden of proof, the defendant needs to prove that the administrative act he made has factual and legal basis and is a legal administrative act, as to whether the administrative act has been made and who is the subject of the administrative act, it should be proved by the plaintiff. Otherwise, it will make it difficult for the defendant who claims negative facts to fulfill the corresponding burden of proof in the trial of the case. In the case of (2016) Supreme Law Application No. 2907, the Supreme Court held that the plaintiff should obviously prove whether the alleged administrative act exists and whether the administrative act was carried out by the defendant. This is the factual basis for the plaintiff to accuse the administrative organ of having committed an administrative act that infringes its legitimate rights and interests, and also the substantive reason for the establishment of the litigation request, it is not to shift the burden of proof of the illegal administrative act to the plaintiff. 3. The fact that an application has been filed. When the accused administrative act is a failure to perform statutory duties or an omission as an administrative act, the plaintiff should generally prove that it has applied to the defendant, unless there are special provisions. The first paragraph of Article 38 of the Administrative Litigation Law stipulates: "In a case where the defendant is sued for failing to perform his statutory duties, the plaintiff shall provide evidence of his application to the defendant. However, one of the following circumstances is excluded; (I) the defendant should take the initiative to perform his statutory duties ex officio; (II) the plaintiff is unable to provide evidence for legitimate reasons." Therefore, the plaintiff's burden of proof for the performance of the application is not absolute. In the above two cases, even if the plaintiff fails to provide evidence, it will not bear the adverse consequences of the inability to provide evidence. 4. Administrative compensation and compensation cases. According to the second paragraph of Article 38 of the Administrative Litigation Law: "In a case of administrative compensation or compensation, the plaintiff shall provide evidence of the damage caused by the administrative act. If the plaintiff is unable to provide evidence due to the defendant's reasons, the defendant shall bear the burden of proof." The first paragraph of Article 47 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Procedure Law (hereinafter referred to as the "Application Interpretation") stipulates: "According to the provisions of the second paragraph of Article 38 of the Administrative Procedure Law, in administrative compensation In a case of compensation, if the plaintiff is unable to prove the damage due to the defendant's reasons, the defendant shall bear the burden of proof for the damage." Article 5 of the "Evidence Regulations" stipulates: "In administrative compensation litigation, the plaintiff shall provide evidence of the fact that the specific administrative act being sued has caused damage." According to the above-mentioned provisions, for the fact and amount of damage caused by administrative acts, in principle, follow the rule of proof of who claims who gives evidence, and the plaintiff gives evidence. However, this rule of proof is also not absolute and there are exceptions. In the case of (2016) Supreme Law Administration No. 791, the plaintiff was unable to prove the specific loss due to the defendant's reasons. The Supreme Court held that when Huashan District government organized the demolition of the applicant's house, it failed to register and preserve the articles in the house according to law, and failed to make a list of articles and submit it to the applicant for signature confirmation. As a result, the applicant could not prove the damage to the articles, so whether the loss existed and the specific loss, according to law, the respondent Huashan district government shall bear the burden of proof. In the case that the Huashan District government failed to provide sufficient evidence, the court of second instance, referring to the reasonable market price and in accordance with the principle of "high is not low", supported the applicant's reasonable claim for compensation for indoor goods, which has fully protected the applicant's rights. However, in the administrative compensation litigation, if the plaintiff is unable to provide evidence due to the defendant's reasons, the plaintiff is not automatically exempted from the burden of proof to prove the existence of the loss and the scope of the loss. In the case of (2017) Supreme Law Xing Shen No. 26, if the Supreme Court considers that the plaintiff's proof of the loss is obviously unreasonable, the people's court may determine the corresponding amount of compensation in accordance with the law in the light of the objective facts found after the trial. Although in principle, the defendant bears the burden of proof in administrative litigation, this does not mean that the plaintiff cannot prove the facts of his claim, but that the plaintiff does not bear the consequences of the inability to prove, nor does it of course exempt the defendant from the burden of proof. Article 37 of the Administrative Procedure Law stipulates: "The plaintiff may provide evidence to prove that the administrative act is illegal. If the evidence provided by the plaintiff is not tenable, the defendant shall not be relieved of the burden of proof." In addition, according to Article 46 of the applicable interpretation, if the plaintiff or a third party does have evidence to prove that the evidence held by the defendant is beneficial to the plaintiff or the third party, it may apply in writing to the people's court to order the administrative organ to submit it before the hearing. If the reasons for the application are established, the people's court shall order the administrative organ to submit it. If the administrative organ refuses to submit it without justifiable reasons, the people's court may presume that the facts claimed by the plaintiff or a third party based on the evidence are established. In such a case, even if the plaintiff or a third party does not prove the facts claimed by him, the court still presumes that the facts claimed by him are established and the defendant bears the adverse consequences. (III) people's court to conduct investigation and collect evidence Although the burden of proof and the consequences of the failure of proof shall be borne by the original defendant, under certain circumstances, the people's court may, ex officio, require the parties to provide evidence, collect evidence on their own, or obtain evidence on the application of the plaintiff or a third party. 1. Ex officio. In order to protect the legitimate rights and interests of the State, society and others, the people's court may require the parties to provide and supplement evidence. Article 39 of the Administrative Procedure Law stipulates: "The people's court has the right to require the parties to provide or supplement evidence." Article 37 of the applicable interpretation further explains: "according to the provisions of Article 39 of the administrative procedure law, the people's court may order the parties to provide or supplement relevant evidence if there is no dispute over the parties, but the facts involve the national interests, public interests or the legitimate rights and interests of others." At the same time, the court has the right to investigate and collect evidence on its own. Article 40 of the Administrative Litigation Law stipulates: "The people's court shall have the right to obtain evidence from the relevant administrative organs, other organizations and citizens. However, it shall not obtain, for the purpose of proving the legality of an administrative act, evidence that was not collected when the defendant took the administrative act." Article 22 of the "Evidence Regulations": "According to the second paragraph of Article 34 of the Administrative Litigation Law, the people's court has the right to obtain evidence from relevant administrative agencies, other organizations, and citizens under any of the following circumstances: (1) The determination of facts involving national interests, public interests, or the legitimate rights and interests of others; (II) involving procedural matters such as adding parties ex officio, suspending litigation, terminating litigation, and withdrawal." It can be seen that the court is also bound by the rule of "taking evidence first, ruling later" in the process of obtaining evidence. This provision is not only a requirement of doctorism, but also a requirement of the principle of neutrality. (2017) In the Supreme Law Application No. 2926 case, the Supreme Court held that the court could neither accept the evidence that the defendant did not collect when he made the administrative act, nor obtain the evidence that the defendant did not collect when he made the administrative act in order to prove the legality of the administrative act. 2. Upon request. Article 41 of the Administrative Litigation Law: "If the plaintiff or a third party cannot collect the following evidence related to this case on its own, it may apply to the people's court for access: (1) Evidence kept by state agencies and must be obtained by the people's court; (II) evidence involving state secrets, trade secrets, and personal privacy; (III) other evidence that cannot be collected by itself due to objective reasons." In civil proceedings, if the plaintiff and the defendant are unable to collect evidence on their own for objective reasons, they may apply to the court to obtain evidence. In administrative litigation, the defendant, as an administrative organ, has a higher ability to obtain evidence than the plaintiff and the third party, so the law stipulates that only the plaintiff and the third party have the right to apply to the court for investigation and evidence collection. 3. epilogue Compared with civil litigation, the rule of proof in administrative litigation has its particularity, based on the fact that the status of the plaintiff and the defendant is not equal, it is necessary to ensure the equality of the litigant's litigation status through the distribution of the burden of proof, so the traditional rule of proof of "who claims, who gives evidence" is not fully applicable to administrative litigation. In judicial practice, courts often allocate the burden of proof reasonably on the basis of legal provisions according to the ability of both parties to prove the case, combined with the facts of the case.

2022-06-10

Viewpoint... A preliminary exploration of civil liability for misrepresentation of private equity bonds that can be publicly traded.

摘要：近来，资本市场中可公开交易私募债券虚假陈述案件频频“爆雷”，相关法律法规却鲜有触及责任主体及责任承担比例等问题。虽然最高院于2022年1月出台了《最高人民法院关于审理证券市场虚假陈述侵权民事赔偿案件的若干规定》，但由于私募债券与公募债券或公开发行股票有着本质区别，对于证券种类或性质不同其法律适用应予以区分对待。本文尝试就可公开交易的私募债券涉及虚假陈述的民事责任主体及责任比例进行探讨，并建议尽快制定符合私募债券性质的相关法律法规或司法解释，以符合资本市场的发展。   关键词：可公开交易的私募债券、虚假陈述民事责任   Abstract：The subject and proportion of civil liability for misrepresentation cases of publicly traded private placement bonds in the capital market have rarely been touched upon by relevant laws and regulations. Although the Supreme Court issued several provisions of the Supreme People's Court on the trial of civil compensation cases for misrepresentation infringement in the securities market in January 2022, the definition of the types or nature of securities and their legal application should be treated differently, as private placement bonds are fundamentally different from public offering bonds or public offering stocks. This paper attempts to discuss the subject and size of civil liability for misrepresentation of privately offered bonds that can be publicly traded, and suggests that relevant legal and judicial interpretations in line with the nature of privately offered bonds be formulated as soon as possible to refine the provisions to comply with the development of the capital market.   Key words：publicly traded private placement bonds, civil liability for misrepresentation   一、引言   2022年1月12日起施行的《最高人民法院关于审理证券市场虚假陈述侵权民事赔偿案件的若干规定》（以下简称“若干规定”）虽然明确和细化了证券市场虚假陈述侵权民事赔偿责任的构成要件及追究机制等内容，但没有对公开发行的证券中的股票与债券、公募债券和私募债券等概念进行区分；虽然文义上将适用范围扩大到可公开交易的私募债券等领域，但没有根据私募债券的特点进行细化规定。   “私募”的概念包含于“非公开发行”的范畴之中，在“非公开发行”的定义上我国采取的是“并列规定模式”（或“反向推定模式”），即分别规定公开发行及非公开发行的定义，并在此基础上规定公开发行采取注册制、非公开发行采取备案制及证券发行、交易管理的其他制度，因此在我国关于证券的性质界定及其引发的问题应当是尤为重要的问题。本文将在辨析基础概念的基础上以我国私募债券虚假陈述民事责任法律制度的完善为目的，从梳理、分析立法目的和理论基础为出发点，分析可公开交易的私募债券虚假陈述民事责任制度的法律修订与完善。   二、可公开交易的私募债券概述   （一）可公开交易的私募债券定义   私募债券是指 “在中国境内以非公开方式发行和转让，约定在一定期限还本付息的债券” ， “非公开方式”是指向每期不超过两百人的合格投资者发行且不采用广告、公开劝诱和变相公开方式。实践当中存在“大公募”、“小公募”和“私募”的惯常用法 ，“大公募”和“小公募”均是公开发行，而“小公募”要求向合格投资者发行，“私募”更近一步是指向合格投资者非公开发行。   从法律关系的角度，私募债券不同于股权，持有私募债券代表投资人与发行人之间存在债权债务关系，且其披露文件的作用是供合格投资者判断发行人在经过将来的一段时间后是否还具有还本付息的能力，其风险在于发行人部分或完全丧失还本付息的能力而违约。   根据《公司债券发行与交易管理办法（2021年修订）》，参照2022年《上海证券交易所非公开发行公司债券挂牌交易转让规则（2022年修订）》，非公开发行的债券在已经合法发行之后符合规定完结程序可以在上交所挂牌转让。挂牌转让的交易双方在符合双方皆是合格投资者、转让发生后不会导致债券投资者超过200人、双方协商一致并向交易所申报等规则后即可进行交易，由于交易所有公共平台的性质，本文称之为可公开交易的私募债券。   （二）私募债券的合格投资者制度   合格投资者制度是私募法律制度的核心，我国证券法对投资者设定风险辨识和承担能力门槛并规定合格投资者应当自行承担债券的投资风险，主要借鉴美国的高收益债券的立法经验，其目的是平衡融资便利性和投资者保护，合格投资者在迈入私募债券这种有着更高收益债券的购买门槛的同时，应当承担起相较普通投资者更高的交易注意义务和风险承担能力。合格投资者制度引入，实现对我国证券市场投资者的分类管理，为私募债券等私募证券设置准入门槛，高门槛意味着高风险，高风险中蕴含着高收益，合格投资者应当秉持着善意投资的主观心理进行投资，并且为自己的选择负责。   虽然私募债券中合格投资者承担更高的注意义务与“买者自负”原则，但是这并不意味着虚假陈述民事责任人可以因此免责。   （三）可公开交易的私募证券的交易机制   2022年4月22日上海证券交易所和深圳交易所分别发布《上海证券交易所非公开发行公司债券挂牌规则（2022年修订）》和《深圳证券交易所非公开发行公司债券挂牌规则（2022年修订）》，同时2018年版即时废止。新规没有对挂牌债券的转让规则作出明确规定，参见新规的修订说明，新规完善债券转让机制，重点在于增加原则性规定，同时为后续完善相关规则留出空间。可见有关债券转让机制的详尽立法已经被立法者提上日程。虽然旧规已被废止，但尚没有具体的债券转让机制的规定，旧规仍可以反映可公开交易的私募债券的交易模式。旧规中规定债券转让以协商为主要方式进行，转让双方应当就转让的价格、数量等要素达成一致，应当向交易所提出申报。同时实践当中有关交易需在特定的“固定收益平台”上进行，交易需买卖双方事先确定交易价格、数量后在平台上输入只有他们掌握的特殊编码，才可成功申报。因此虽然可公开交易的私募债券在交易所进行挂牌，但区别于公开发行的债券面向不特定对象交易，其交易模式是典型的在公开交易市场的私下协商交易，双方平等协商的“一对一”交易模式。   （四）可公开交易的私募债券法律适用的困境   1、适用《证券法》的困境   《证券法》没有排除私募证券的法律适用，但是其中仅有第九条、第三十七条和第九十八条规定为有关非公开发行证券的规定，且均在规定中明确“非公开发行”。《证券法》关于信息披露义务的规定，均没有提及“非公开发行”，在第五章信息披露章节中也没有规定非公开发行的债券信息披露规则，则有理由认为《证券法》部分规定仅规范公开发行的债券，或只能在处理非公开发行的债券信息披露时作为参考。   2、适用《若干规定》的困境   2022年1月12日起施行的《若干规定》没有对公募和私募进行区分，规定“信息披露义务人在证券交易场所发行、交易证券过程中实施虚假陈述引发的侵权民事赔偿案件，适用本规定”，且没有进行例外规定。《若干规定》对比2003年《最高人民法院关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定》中明确规定仅适用于公募证券，文义上拓展了适用范围，扩大到了可公开交易的私募债券等领域。但是非公开发行证券是否应当适用《新虚假陈述若干规定》存在争议。   学者雷继平、王巍、兰朝晖，提出“在证券交易场所发行、交易”的判断标准，或可进一步界定为证券发行、交易“是否使用了证券交易场所的场地和设施”。私募债券在非公开发行阶段由发行人和承销商负责，发行完成后依据相关流程在交易所挂牌，没有使用证券交易场所的场地和设施，不属于“在证券交易场所发行、交易”，同时结合立法目的，认为私募债券不应适用《新虚假陈述若干规定》。   私募债券的可公开交易亦为“一对一”交易，实践当中存在债券发行前就已经约定好交易价格、交易对象和交易时间的“准内部交易”，债券发行和交易均没有使用证券交易所的场所和设施，私募债券对于该等交易的责任分担，应不适用《若干规定》，应在此后的司法解释或法律法规中予以明确。笔者认为，除了上述解释外，私募债券的发行和交易的方式可能存在发行前交易、内幕交易的可能性，故应区分情况以决定是否适用《若干规定》。   三、可公开交易的私募债券虚假陈述民事责任   （一）虚假陈述行为性质   证券市场是一个依赖信息汇集、分析和决策进行交易的场所，其高效健康的运行有赖于高质量的信息披露。在此过程中，投资者不需要支付或仅需支付微小对价即可以获取相关信息。中介机构等信息披露主体非基于同投资者之间的合意，而是基于法律法规、规范性文件规定以及同发行人、上市公司之间的契约关系而进行信息审核，因此投资者追究中介机构虚假信息披露民事责任难以通过以相对性为核心的合同责任。将证券虚假陈述民事责任定义为侵权责任是世界上的大趋势，我国立法和理论都将证券虚假陈述行为定义为侵权行为。证券虚假陈述表面上侵犯的是投资者的获取真实信息权，实质上是侵犯投资者的财产权。根据经济学的“有效市场”假设，在弱势有效市场和半强势有效市场，证券价格难以有效、及时、充分的体现未公开信息，某些未公开信息掌握者可以以信息差获取高额利润，而未掌握信息的投资者会因此受到财产损害。这种针对不确定对象故意或过失损害其绝对权，又依照法律规定承担民事责任的行为，符合侵权行为的定义。采取侵权责任说，可以不受合同相对性限制而追究非证券交易合同主体的责任，更有利于保护投资者并促进行业自律，推动证券市场良性发展。   （二）可公开交易的私募债券纠纷中因果关系探讨   有学者主张推定因果关系的理论基础是“市场欺诈理论”。“市场欺诈理论”巧妙的将投资者对市场定价的信赖与对虚假信息的信赖画等号，桥梁是经济学的“有效市场假设”。由于债券与股票不同，以及收益来源的差异和流通性差异，债券市场恐怕无法归类于强势或半强势有效市场，无法基于“有效市场假设”而成立推定信赖原则。但是除了“市场欺诈理论”还有其他理论可以帮助在私募债券市场成立推定信赖原则。私募债券高度类似合同交易，可公开交易的私募债券对比合同交易主要区别在于合格投资者制度和在公开平台上的信息披露要求。其在公开平台上的信息是经过多方保证真实性、准确性、完整性并在上交所等官方平台上披露的，其信息的可信度远远超出普通合同欺诈

2022-06-08

Viewpoint... How to protect the rights and interests of small shareholders of the shareholder representative litigation system.

Under the modern corporate system, investors tend to believe in capital majority decision, with the primary goal of having more control of the company. However, the problem that follows is that when the interests of controlling shareholders conflict with those of minority shareholders, the interests of minority shareholders are often vulnerable to infringement. This paper will focus on the protection of minority shareholders' rights and interests by means of shareholder representative litigation. The main forms of infringement of the interests of small shareholders in 1.. The fundamental reason for the infringement of the interests of minority shareholders is that the controlling shareholders can essentially control the operation of the company, but the company and shareholders are independent of each other at the legal level, and the property of the company is independent of the property of the shareholders. therefore, when the controlling shareholders make decisions involving the company, they do not proceed from the interests of the company, but encroach on the property of the company through a series of transactions that damage the interests of the company. This will lead to the loss of the company's property and endanger the interests of the company, other shareholders and creditors. If the company were to go bankrupt and liquidate as a result, although the controlling shareholder would have to share the losses with the minority shareholders, the controlling shareholder may have already benefited from the company by using its controlling position to far outweigh the loss of its capital contribution, and the interests of the minority shareholders would not be protected. In this regard, the shareholder representative litigation system directly gives minority shareholders the right to file lawsuits on behalf of the company under certain conditions, which is conducive to protecting the interests of the company and minority shareholders, and investigating the relevant responsibilities of controlling shareholders, directors and supervisors. 2. the subject qualification of shareholder representative litigation. The plaintiff in a (I) shareholder's representative action shall be a shareholder of the company, and the shareholder of a joint stock limited company shall also meet the limit on the period and number of shares held. According to Article 151 of the Company Law, the subject of the shareholder representative action is the shareholder. There are no restrictions on the shareholders of a limited liability company, but the shareholders of a limited liability company have restrictions on the period of holding shares and the number of shares held. The specific requirements are: the shareholders of a limited liability company hold more than 1% of the company's shares for more than 180 consecutive days in order to have the legal qualification to bring a lawsuit. (II) whether the damage to the company occurred before or after the plaintiff obtained shareholder status, it does not affect the right of the shareholder to bring a shareholder representative action. Article 24 of the Ninth Minute provides that "if a shareholder files a shareholder representative action and the defendant defends that the shareholder is not a qualified plaintiff on the grounds that the plaintiff has not yet become a shareholder of the company at the time of the act, the people's court shall not support it". (III) companies should be listed as third parties Since shareholder representative litigation is a dispute arising from the operation of the company, it is to safeguard the interests of the company and involves the entity rights and interests of the company. Therefore, Article 24 of the Judicial Interpretation IV of the Company Law stipulates that the company shall be listed as a third party in the shareholder representative action. Application of 3. shareholder representative litigation According to Article 151 of the Company Law, shareholder representative litigation applies to situations where others infringe on the interests of the company, including the following two types: (I) directors, supervisors and senior executives have caused losses to the company in violation of laws and regulations when performing their duties. This is the most typical situation of filing a shareholder representative lawsuit, directors, supervisors and executives are the actual management personnel of the company, and when they violate the duty of loyalty and diligence and cause losses to the company, they usually have no incentive to file a lawsuit against themselves in the name of the company, and allow the company's property to suffer losses. (II) another person to infringe upon the legitimate rights and interests of the company and cause losses to the company In addition to the previous typical application, the company law expands the scope of application of the shareholder representative litigation system, and any third party (including other shareholders) has room to apply the shareholder representative litigation system as long as it infringes on the legitimate rights and interests of the company. Common scenarios are as follows: 1. Abuse of control by controlling shareholders or actual controllers to infringe on the interests of the company 2. Defective contributions by shareholders 3. The non-performance of the debt of the company's debtor. 4. Misconduct by members of the liquidation team Pre-procedure for shareholder representative litigation in 4.. (I) statutory pre-procedure The main purpose of setting up the pre-procedure is to avoid excessive involvement of judicial factors, to ensure the internal autonomy of the company, and to prevent the abuse of shareholder litigation. According to Article 151 of the Company Law, shareholders are required to perform the legal pre-procedure to file a representative lawsuit, that is, a written request to the board of supervisors, the supervisor of a limited liability company without a board of supervisors, the board of directors, and the executive director of a limited liability company without a board of directors to file a lawsuit. A shareholder has the right to bring a shareholder representative action only if the aforementioned subject refuses to bring a lawsuit, or if the aforementioned subject fails to bring a lawsuit within 30 days from the date of receipt of the request. This requires that before filing a shareholder representative lawsuit, the shareholder must first exhaust the company's internal remedies, and if the plaintiff shareholder does not request the supervisory board, supervisor or board of directors or executive director to file a lawsuit in writing, and there is no sufficient evidence to prove that there is an exception to the pre-procedure in the case, the court will rule to dismiss the lawsuit. Exceptions (II) exemption from statutory pre-procedure 1. In case of emergency According to Article 151 of the Companies Act, shareholders have the right to file a lawsuit directly in case of emergency, I .e. no statutory pre-procedure is required. Examples of emergency situations are as follows: (1) The failure of shareholders to immediately file a lawsuit will result in the expiration of the statute of limitations; (2) The infringer transfers the company's property, and its act of harming the company's interests is continuing, and the company's interests will be irreparable if it does not file a lawsuit immediately. Thus, "urgency" requires urgency to stop the violation, I .e., a real and imminent danger, rather than a remote or speculative one. 2. There is no possibility of litigation by the relevant authorities of the company. Article 25 of the Nine People's Minutes stipulates that "the pre-procedure is aimed at the general situation of corporate governance, that is, when the shareholders submit a written application to the relevant organs of the company, there is a possibility of litigation by the relevant organs of the company. If the relevant facts identified show that there is no such possibility at all, the people's court shall not dismiss the prosecution on the ground that the plaintiff has not fulfilled the pre-procedure". Among them, the case where "there is no possibility of litigation by the relevant organs of the company" is as follows: (1) The company does not have a board of directors, a supervisory board, or a person who has already left the company without serving; (2) The directors or supervisors of the company are under the control of the controlling shareholder who committed the infringement and it is impossible for the directors or supervisors to sue the controlling shareholder; (3) The directors and supervisors themselves have an interest in the act involving damage to the interests of the company, or the directors and supervisors are the defendants in the case. Therefore, "there is no possibility of litigation by the relevant organs of the company", which requires that there is no possibility of performing the pre-procedure objectively. Attribution of interests in 5. litigation Article 25 of the Judicial Interpretation IV of the Company Law stipulates that "in a case where a shareholder directly brings a lawsuit in accordance with the provisions of paragraphs 2 and 3 of Article 151 of the Company Law, the winning interest belongs to the company. If the shareholder requests the defendant to bear civil liability directly to him, the people's court shall not support it". Since in a shareholder representative action, the shareholder is suing to defend the interests of the company, the interest in the shareholder representative action is vested in the company. 6. Summary In general, China's shareholder representative litigation system provides less, but the future application scenario is more extensive, the current should encourage minority shareholders to sue. Before filing a lawsuit, the minority shareholders should self-examine whether the subject is qualified, whether it has fulfilled the pre-procedure, whether it meets the pre-procedure exemption and other preconditions for prosecution, in order to fully protect their rights and interests.

2022-06-08

In the case of the case, if the guarantor is not required to assume the responsibility of the guarantee during the guarantee period, the guarantee liability is exempted.

Recently, a private lending dispute case handled by the author received a second-instance judgment made by the Jinan Intermediate People's Court (hereinafter referred to as the "Jinan Intermediate Court"). The court of first instance in the case ruled that the guarantor of the debt involved in the case was jointly and severally liable for the debt involved in the case. The author filed an appeal on behalf of the guarantor, and the Economic South Intermediate Court heard the trial. The final judgment revoked the first instance judgment, and the guarantor was not required to bear joint and several liability for the debts involved in the case, effectively safeguarding the legitimate rights and interests of the guarantor. Brief of the case On August 20, 2000, a company signed a Repayment (Repayment Guarantee) Agreement with Zheng and Zhang, agreeing that Zheng would lend a loan of 244000 yuan to a company with an annual interest rate of 13% until August 1, 2000. Zhang, as the vice president of the company, signed the agreement as the guarantor of repayment, and promised to "provide unconditional full repayment guarantee for the loan with his family property". At the bottom of the agreement, write "this agreement as an attachment to the original loan contract (No.998060). all parties agree that party B (a company) can repay it in monthly installments at a rate of 10% per month until June 2001", with Zhang's signature attached, but the words "monthly installments at a rate of 10% per month" and "June 2001" have been altered. In August 2021, Zheng filed a lawsuit with a district court in Jinan City, demanding that a company repay the principal and interest, and Zhang bear joint and several liability. Zhang did not appear in court to participate in the proceedings. A district court held that a company should bear the responsibility for repayment in accordance with the contract, and Zhang, as the vice president of the company, promised to provide unconditional full repayment guarantee for the loan with his family property, and should bear joint and several liability with the borrower, and accordingly ruled that Zhang should bear joint and several liability for the debts involved in the case. Zhang refused to accept the judgment of the first instance and entrusted the author to appeal. Grounds of Appeal 1. There are a large number of traces of alteration in the key evidence provided by Zheng in the first instance, and the alteration shall not be used as the basis for the final decision without Zhang's consent; 2, Zhang in this case is joint and several guarantee liability, the agreement did not agree on the guarantee period, and Zheng did not require Zhang to assume the guarantee responsibility within the statutory six-month guarantee period, Zhang's guarantee responsibility has long been exempted; 3, even if the court found that Zhang should bear the responsibility of guarantee, the statute of limitations of the main debt in this case has expired, as a guarantor of Zhang in accordance with the law to enjoy the main debtor's statute of limitations defense, no need to bear the responsibility of guarantee. The focus of the second trial dispute Whether Zhang is jointly and severally liable for the debts involved, I .e. whether Zhang's guarantee has exceeded the guarantee period. case analysis 1. On the issue of altered evidence The handwritten part at the bottom of the agreement, "divided into months at a rate of 10% per month" and "June 2001", was altered without Zhang's consent, and the above altered content is obviously beneficial to Zheng, so it has no legal effect on the above altered. Zhang, as the vice president and guarantor of the company, is deemed to have changed the repayment period of the debt involved in the case, that is, the performance period of the principal debt involved in the case should be "June 2001". 2. The question of whether the guarantee liability has passed the guarantee period. In this case, Zhang assumed joint and several guarantee liability, but the agreement involved in the case did not stipulate the guarantee period. Therefore, the guarantee period for Zhang to bear joint and several liability in this case should be six months after the expiration of the main debt performance period stipulated by law. In this case, Zheng did not provide evidence to prove that he required Zhang to bear the guarantee responsibility within six months from July 1, 2001, and should bear the adverse consequences. Therefore, Zhang's guarantee responsibility has been due to Zheng's failure to make a claim within the guarantee period. Exempt. Referee result After trial, the Jinan Intermediate People's Court revoked the original judgment of first instance that Zhang should bear joint and several liability for repayment, and changed the judgment to reject Zheng's claim against Zhang. Article Link Article 77 of the the People's Republic of China Contract Law "The contract may be changed if the parties agree through consultation. Where laws or administrative regulations stipulate that the modification of a contract shall be subject to approval, registration and other procedures, such provisions shall be followed." Article 78 of the the People's Republic of China Contract Law "If the parties are not clear about the content of the contract change, it is presumed that it has not been changed." Article 24 of the the People's Republic of China Guarantee Law "Where the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor, and without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If it is otherwise agreed in the guarantee contract, it shall be in accordance with the agreement." Article 26 of the the People's Republic of China Guarantee Law "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period of performance of the independent debt. If the creditor fails to require the guarantor to assume the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be relieved from the guarantee liability." Lawyer Reminder 1, for creditors, in order to avoid the guarantor out of the insurance, it is necessary to claim the guarantee liability to the guarantor or re-sign the guarantee contract within the guarantee period. 2. For the guarantor, the first is the defense that the guarantee period has passed the guarantee liability has been exempted, and the second is to exercise the defense rights of the principal debtor according to law, including the statute of limitations. 3. After the implementation of the Civil Code, the contents of the main creditor's rights and debts contract shall be changed without the consent of the guarantor, and if the debt is reduced, the guarantor shall still bear the guarantee liability for the changed debt, and if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part. (Author: Zhang Wenhong)

2022-06-08