Viewpoint | The determination of the nature of the obligation to make up the difference and the analysis of the rules of judicial application.

Introduction In order to ensure the realization of the creditor's claim, it is common for parties outside the contract to provide similar commitment documents such as difference compensation, but there are different understandings in practice as to how the legal nature of such credit enhancement measures should be determined and how relevant disputes should be handled. This paper will combine the relevant cases of the Supreme Law to sort out the nature of the obligation to make up the difference and the thinking of the referee, and analyze the legal liability of the obligation to make up the difference under different circumstances. The concept and classification of the obligation to make up the difference in 1.. The obligation to make up the difference refers to the obligation to make up the difference in order to ensure the relationship between the creditor and the debtor, and to agree that when the debtor fails to perform its obligations in accordance with the agreement or the amount of money is insufficient to pay, the debtor or a third party shall bear the obligation to make up the difference in accordance with the agreement. The obligation to make up the difference can be divided into the debtor's obligation to make up the difference and the third party's obligation to make up the difference according to the subject. Among them, the debtor's obligation to make up the difference is borne by the debtor himself, and the third party's obligation to make up the difference is generally committed by the third party to provide a unilateral commitment letter or sign an agreement with the creditor. Depending on the relationship between the main rights and obligations guaranteed, the obligation to make up the difference can be divided into the difference to make up the debt, the difference to make up the dividend and the difference to make up the collection of funds, of which the most common difference to make up the debt mainly includes the class guarantee type difference to make up and the class debt to join the difference to make up. The judicial point of view of the legal nature of the obligation to make up the difference of 2.. At present, there are mainly the following views on the legal nature of the obligation to make up the difference: one view is that the obligation to make up the difference constitutes the addition of debt, that is, if the parties promise to bear the responsibility for making up the difference as long as the principal and interest of the loan are overdue or in default, it constitutes the addition of debt; the other view is that the obligation to make up the difference constitutes a guarantee, that is, if the contract is, after the contract is, regardless of the form of claim or right of the secured party, the shortfall-making party shall be unconditionally liable for joint and several guarantees. In addition, there are other determinations of a nature such as the obligation to make up the difference constitutes a commitment to pay. The addition of 1. debt. Case: [(2020) Supreme Law Minzong No. 295] Dispute over Loan Contract between Jiangsu jintao Investment Holding Co., Ltd. and Jiangxi Kete Investment Co., Ltd. The court held that the Deficiency Agreement in question had the nature of debt accession. The Deficiency Agreement stipulates that Jin Tao and Zhu Yongning shall unconditionally perform the obligation to make up the difference between the fixed income and principal obtained by Cote Company under the Loan Contract, and Jin Tao and Zhu Yongning shall bear unlimited joint and several liability for the above obligations. The Difference Replenishment Agreement does not expressly stipulate that Jin Tao Company and Zhu Yongning are to provide guarantee for the debts of Yizhou Company under the Loan Contract, and from the agreement of the Difference Replenishment Agreement, the difference replenishment obligation of the difference replenishment person does not have the attribute of debt. Therefore, Jin Tao Company and Zhu Yongning belong to the debt joining, not to the general guarantee. Opinion 2. Guarantee Case: [(2019) Supreme Law Minzong No. 560] Huarong International Trust Co., Ltd. and Kaidi Ecological Environment Technology Co., Ltd. Dispute over Financial Loan Contract The court held that the determination of whether the Contract for Deficiency was a guarantee or a common debt burden should be determined in accordance with the content of the contract. According to the agreement of the "Difference Supplement Contract", the difference supplement liability of Kaidi Ecological Company is based on the fact that the principal debtors Kaidi Energy Company and Kaidi Power Company cannot fulfill their obligations to repay the principal and interest in accordance with the agreement of the "Trust Loan Contract", that is, Kaidi Ecological Company is responsible for the debts of the principal debtors Kaidi Energy Company and Kaidi Power Company. Obviously, the nature of the Deficiency Payment Contract is not a common debt burden but a guarantee. Viewpoint 3. Payment Commitment Case: [(2019) Supreme Law Minzong No. 1524] Dispute between Antong Holding Co., Ltd. and Ankang Business Trust The court held that the obligation to make up the difference refers to: Ankang's interest distribution date under the Trust Contract (including the distribution date of the net income of the trust during the existence of the trust and the distribution date of the trust due), if due to any reason including but not limited to Renjian Company's failure to pay off the principal and interest under the Trust Loan Contract in time and in full, if Ankang fails to obtain the distribution of trust benefits on time and in full according to the 13% annual trust return rate, Guo Dongze shall bear full supplementary responsibility for the difference, including: during the duration of the trust, if Ankang's net trust income according to the Trust Contract fails to reach the 13% annual return rate, Guo Dongze shall make up the difference to Ankang; On the due distribution date of the trust, guo Dongze shall pay Ankang the principal of the trust loan of 0.2 billion yuan, and the difference that has not been made up to the annualized 13% income. Determination of the nature of the obligation to make up the difference in 3. with the Minutes of the Ninth People's Conference "Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as "Minutes of the Nine People's Conference") 91. If the parties outside the trust contract provide similar commitment documents such as third-party balance compensation, performance of due repurchase obligations, liquidity support and other similar commitment documents as credit enhancement measures, the contents of which conform to the provisions of the law on guarantee, the people's court shall determine that a guarantee contractual relationship has been established between the parties. If the content does not conform to the provisions of the law on guarantee, the corresponding rights and obligations shall be determined according to the specific content of the commitment document, and the corresponding civil liability shall be determined according to the facts of the case. For the first time, the "Minutes of the Ninth People's Conference" clarified the nature of the trust credit enhancement measures including the difference compensation agreement in the judicial policy document: if the content of the document meets the provisions on guarantees, it should be recognized as a guarantee contract relationship; its content If it does not conform to the provisions of the guarantee, the corresponding rights and obligations shall be determined according to the specific content of the commitment document, and the corresponding civil liability shall be determined according to the facts of the case. From the point of view of the interpretation of the text, the above rules can be further summarized as: guarantee guarantee priority, independent contract inferior. 4. the nature of the obligation to make up the difference in the Judicial Interpretation of the Guarantee System. Article 25 of the interpretation of the Supreme People's Court on the application of the guarantee system in the the People's Republic of China Civil Code (hereinafter referred to as the "judicial interpretation of the guarantee system"), the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability only when the debtor is unable to perform the debt or is unable to repay the debt, and the people's court shall recognize it as a general guarantee. If the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform the debt or fails to repay the debt, unconditionally bear the guarantee liability and other similar contents, and do not have the intention that the debtor should bear the responsibility first, the people's court shall recognize it as a joint and several liability guarantee. Article 36 If a third party provides a creditor with similar commitment documents such as shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and if the creditor requests the third party to assume the responsibility for the guarantee, the people's court shall deal with it in accordance with the relevant provisions of the guarantee. If the commitment document provided by the third party to the creditor has the intention of joining the debt or sharing the debt with the debtor, the people's court shall determine that the debt is joined under Article 552 of the Civil Code. If it is difficult to determine whether the commitment document provided by the third party in the preceding two paragraphs is a guarantee or a debt, the people's court shall determine it as a guarantee. The Judicial Interpretation of the Guarantee System and the Minutes of the Ninth People's Conference have roughly the same determination of the nature of the obligation to make up the difference, but compared with the Minutes of the Ninth People's Conference, the Judicial Interpretation of the Guarantee System has a broader and clearer scope of application to the determination of the nature of the obligation to make up the difference due to the inclusion of debt in the Civil Code. Specifically, the nature of the obligation to make up the difference is specified in three cases: the first is a guarantee and the second is a debt addition, both of which require a clear indication of meaning in the agreement. When it is not possible to determine whether it is a guarantee or a debt addition on the basis of a deficiency replenishment agreement, it tends to be recognized as a guarantee. However, when it can neither be recognized as a guarantee nor as a debt accession according to the agreement, it should be recognized as belonging to the third case, that is, an independent contractual obligation, and the difference making obligor does not need to bear joint and several liability or guarantee liability, but when the difference making agreement is valid, it still needs to bear the agreed obligations or corresponding civil liability in accordance with the agreement.

2022-05-14

Civil and Commercial Perspective | Who is the Defendant in the "Bear" Child Causing Trouble in Single Parent Families

Brief description of case Ms. Xu and Mr. Zhang got married on May 8, 2007 and gave birth to a son, Zhang Xiaoming, on March 2, 2008. On December 3, 2018, the two parties were divorced by the court; the legitimate child Zhang Xiaoming was raised by Mr. Zhang; Ms. Xu paid Zhang Xiaoming a maintenance fee of 3000 yuan before the 3rd of each month; Ms. Xu visited twice a month, and each visit was for one day., The specific date is negotiated between the two parties. After the divorce, Ms. Xu paid maintenance on time every month, but Mr. Zhang never allowed Ms. Xu to visit the children. Mr. Zhang is usually busy with his work, and the children are looked after by his grandmother for a long time. Grandma usually dotes on the children, which leads to the children being very naughty. Ms. Xu was anxious in her heart, but there was nothing she could do. On March 22, 2022, Zhang Xiaoming injured his classmate Xu Yuxin at school. Xu Yuxin sued Mr. Zhang, Ms. Xu, Zhang Xiaoming and the school, asking Mr. Zhang, Ms. Xu, Zhang Xiaoming and the school to compensate Xu Yuxin for medical expenses, nursing expenses, transportation expenses, compensation for mental damage, study counseling and other related expenses totaling 45488 yuan. As the injured part is prone to fracture again, the right to continue to demand payment of medical expenses, nursing expenses, transportation expenses, etc; to bear the costs of litigation. The People's Court notified Ms. Xu to participate in the proceedings. Ms. Xu believes that she has been divorced for five years. According to the divorce judgment of the people's court, the child is directly raised by her father. She has not lived with the child and cannot exercise the right to educate him. Moreover, the father of the child directly deprived her of the right to visit the child. Therefore, the court informed her that there was no legal basis to participate in the proceedings with the child's father as the child's legal guardian. He is also a victim himself. In the face of his own flesh and blood, he cannot meet each other. Moreover, it is the grandmother who directly raises and takes care of the child. To take a step back, even if he is responsible, it should be the father and grandmother of the child. Lawyer's opinion First of all, according to Article 67 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, if a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian are co-defendants. Specifically in this case, because Zhang Xiaoming injured his classmate Xu Yuxin at school, Xu Yuxin has the right to sue Zhang Xiaoming and his parents. Secondly, the relationship between the rights and obligations of parents and children based on blood relationship, is a kind of natural parental relationship. The existence of such a relationship does not depend on the marital status of both parents and the existence of direct upbringing and education of children. Although Ms. Xu did not directly raise her children after her divorce, the mother-child relationship with her children has not changed, and the legal relationship of rights and obligations has not disappeared. After the people's court accepted the case of the right to health dispute in which her child was the defendant, it was informed that there was a sufficient legal basis for her to participate in the lawsuit. Finally, although Zhang Xiaoming's grandmother actually takes care of Zhang Xiaoming's daily life, she should not be listed as a defendant because she is not the legal guardian of the child. Legal provisions 1. Article 1084 of the the People's Republic of China Civil Code stipulates that the relationship between parents and children shall not be eliminated by the divorce of the parents. After divorce, the children, whether raised directly by the father or mother, remain the children of both parents. After divorce, parents still have the right and duty to raise, educate and protect their children. The first paragraph of Article 27 of the the People's Republic of China Civil Code stipulates that parents are the guardians of minor children. 3. Article 1,178 of the the People's Republic of China Civil Code stipulates that if a person without civil capacity or a person with limited civil capacity causes damage to others, the guardian shall bear tort liability. If the guardian fulfills his duty of guardianship, his tort liability may be reduced. If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, he shall pay compensation from his own property. 4. Article 67 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law stipulates that if a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian are co-defendants.

2022-05-13

Viewpoint... Whether the actual investor can "hard" the applicant in the enforcement procedure -- an analysis of the protection of the rights of the trust interests of the hidden shareholders and the ordinary creditors of the prominent shareholders.

Foreword The so-called anonymous shareholder is the actual investor, which means that although it contributes to the company, it should enjoy its shareholder rights, but for various reasons it is not registered in the company's register of shareholders, the company's articles of association and the Market Supervision Administration, but holds the company's equity on behalf of the prominent shareholder. The inconsistency between the appearance of rights and the actual capital contribution is derived from the difficulties in confirming the qualification of dormant shareholders, the limitation of the right to know, and the possibility of excluding the enforcement of ordinary creditors of prominent shareholders in judicial practice, which essentially reflects the determination of the legal relationship between dormant shareholders and prominent shareholders, with the company and other shareholders, and with third parties other than the company and shareholders, which is controversial in academic and judicial practice. This paper only from the hidden shareholders to enjoy the civil rights and interests can be sufficient to exclude the prominent shareholders ordinary creditors on behalf of the rights of the enforcement of the application for entry and preliminary combing, analysis, with a view to the practical treatment to provide some help. The judiciary has different views 1. whether the dormant shareholders can block the implementation. Through the search and analysis of the relevant cases, the court has two different ideas and views on whether the civil rights and interests enjoyed by the hidden shareholders can be sufficient to exclude the application for enforcement of the rights of the ordinary creditors of the prominent shareholders. One view is that dormant shareholders are not sufficient to exclude enforcement, while another view is the opposite, that dormant shareholders are sufficient to exclude enforcement. After incomplete statistics, the majority of cases advocate the first view. The inconsistency of judicial views makes the case handling of such problems increase the difficulty and flexibility of the argument. The core of the 2. is whether the ordinary creditors of prominent shareholders enjoy the interests of trust. Regardless of the referee's view, the core of the reasoning is whether the ordinary creditor of the prominent shareholder enjoys a trust interest and whether that trust interest can be protected in preference to the rights of the anonymous shareholder. The interest of reliance stems from the principle of commercial appearance, that is, the transaction decision made by the relative based on the trust of the registered appearance, even if the appearance of the right is inconsistent with the actual right, it should be presumed that the appearance of the right is true and valid, so as to ensure the trust interest of the relative and maintain the security of the transaction. This principle is enshrined in article 65 of the Civil Code and article 32 of the Companies Act. However, whether the ordinary creditor of a prominent shareholder is a "bona fide counterpart" or a "third party" as stipulated by the law, the law does not clearly stipulate that the "bona fide counterpart" or "third party" is limited to a third party based on equity transactions. Whether it includes a non-trading third party, the practical point of view is controversial here, which is supported by a large number of cases such as the Supreme Court and the Provincial Court. The Shandong Provincial High Court issued the "Answers to Several Questions of the Second Civil Division of the Shandong Higher People's Court on the Trial of Corporate Dispute Cases", which limited the "bona fide counterpart" or "third party" to the third party in equity transactions, and the ordinary creditors of prominent shareholders because They are not the third party in the proxy shareholding transaction and do not enjoy the trust interest based on the appearance of the equity registration right have risen to the guiding principle of trial. It is believed that "the actual funder's request for suspension of execution should be supported". The reason is that, according to Article 25 of the (III) of Interpretation of the Company Law, the subject of the system of good faith acquisition of equity is limited to third parties who have equity transactions with nominal shareholders. The scope of application of the principle of commercial appearance does not include third parties to non-equity transactions. In the case of the inconsistency between the appearance right and the actual right, according to the theory of the appearance of the right, if a bona fide third party conducts a civil legal act with the nominal right holder on the basis of trust in the appearance of the right, the effect of the civil legal act shall be protected by the law. However, if the creditor of the nominal shareholder applies for the execution of the general creditor's rights formed by the nominal shareholder due to the loan relationship with the nominal shareholder, and the creditor does not engage in civil legal acts involving equity transactions with the nominal shareholder, from the principle of the appearance of rights, the creditor at this time is not a bona fide third party of civil legal acts that need to be protected based on the appearance of the right, so its claim cannot be protected in priority over the actual right holder. However, when hearing such cases, the evidence submitted by the actual funder to prove the existence of the right should be strictly examined to find out the authenticity of the right, not only to prevent false litigation to avoid debt, but also to prevent the infringement of the actual funder's actual rights. The claim that "bona fide counterpart" or "third party" is not limited to third parties based on equity transactions, but also includes a number of cases of non-trading third parties. For example, the Supreme People's Court (2019) Supreme Law Minzai No. 46 Tuo Siwei and Liu Jin retrial civil judgment held that "even if the enforcement claim is formed before the share registration information is publicized, the creditor does not trade with the debtor based on the share registration information, and there is still the problem of protecting the creditors' trust interests at the enforcement stage. As the law clearly denies the seizure of excessive standards, the applicant for execution must give up the application for seizure of other property in order to realize the seizure of a particular property. If the trust interest of the seizure is not protected, it will not only be unfair to the applicant for execution, but also damage the trust interest of the judicial enforcement agency. Therefore, it is legitimate and reasonable that the scope of protection of bona fide third parties should not be limited to third parties engaged in transactions with respect to a particular subject matter, and that they should be extended to the executing creditors of the nominal shareholders, in the event that the actual contributors to the shares involved in the case are inconsistent with the publicized nominal shareholders." Thus, this view recognizes that ordinary creditors of prominent shareholders enjoy a trust interest, and there are even cases that extend this trust interest to the enforcement stage. Identification of dormant shareholders in 3. The Supreme Court (2016) Supreme Law No. 701 case held that an anonymous shareholder may file an enforcement objection in the enforcement proceedings and request confirmation of the shareholder's qualification. If the dormant shareholders simultaneously file a claim for confirmation of their rights, the people's court shall hear the case and make a decision together. The identification of dormant shareholders is essentially the identification of the rights of dormant shareholders. The dormant shareholder itself has the qualification of the actual investor, but it is not mentioned in the articles of association, the register of shareholders, industrial and commercial registration and other relevant legal documents, which is easy to cause the dislocation of the rights and obligations of the dormant shareholder. Due to the "hidden" nature of dormant shareholders, the identification of their identity has formed three views of "substantive elements", "formal elements" and "compromise. The substantive elements say that capital contribution is the most important element of the identification of shareholders, regardless of whether the register of shareholders, articles of association or whether the registration authority is registered is only a formal element defect, as long as the holding agreement does not violate the mandatory provisions of laws and administrative regulations, then the identification of shareholders should respect the autonomy of the parties. Article 21 of the (III) of Interpretation of the Company Law can also be understood as the identification of anonymous shareholders. The strict implementation of the principle of commercial appearance will inevitably lead to the inability to effectively protect the rights of anonymous shareholders. The compromise states that a distinction is made between the application of different standards within and outside the company. If the interests of a bona fide third party are not involved, the true meaning of the parties shall be explored in accordance with the agreement of the parties, and when the interests of a third party are involved, the commercial appearance doctrine shall be fully reflected and priority shall be given to the protection of bona fide third parties. At present, compromise is the mainstream view, but there are many disputes involving dormant shareholders, and specific cases should be analyzed in order to effectively balance the interests of the parties. Capital contribution is the key issue for the court to determine the identity of shareholders. Under the comprehensive subscription system, the qualification of shareholders is not based on the paid-in contribution, but because the equity generation holds a certain degree of secrecy, the paid-in capital contribution can prove that the anonymous shareholders have the desire to become shareholders, so the paid-in capital contribution becomes an important evidence of the identity of the anonymous shareholders. Relevant financial information, the flow of capital contributions, etc. can be used as direct evidence to determine the actual contribution. In the case of indirect contributions by dormant shareholders, multiple legal relationships need to be identified to determine the contribution. In particular, in cases where an anonymous shareholder has funds injected into the company, the court will still focus on examining the nature of the funds and distinguishing them from indirect shareholdings and private lending relationships. The equity holding agreement is the embodiment of the autonomy of the rights and obligations of the hidden shareholders and the prominent shareholders, in the absence of violation of the provisions of the legal effect, should be considered valid, only insurance, funds and other special industries, in the context of strong national supervision, the corresponding special provisions on equity holdings, such as the Interim Measures for the Administration of Equity in Commercial Banks, the Measures for the Administration of Equity in Insurance Companies, and the Measures for the Administration of Initial Public Offering and Listing, etc. Articles 10 and 12 of the Interim Measures for the Administration of Equity in Commercial Banks explicitly negate the act of holding equity in commercial banks, which requires shareholders of commercial banks not to entrust or accept the entrustment of others to hold equity in commercial banks. For insurance companies, listed companies equity holding, the court in the specific case of different circumstances also invoked different provisions to make different distinctions between the validity of the agreement. In addition, Article 28 of the "Nine People's Minutes" stipulates: "If the actual investor can provide evidence to prove that more than half of the other shareholders of the limited liability company know the facts of their actual capital contribution and have not raised any objections to their actual exercise of shareholder rights, the actual investor The people's court shall support the request to register as a shareholder of the company." In the company's informed equity holding type and incomplete equity holding type, the hidden shareholders often directly or indirectly with the company, other shareholders, influence or exercise part of the rights of shareholders, judicial practice also to a certain extent recognized the company's other shareholders of the "implied consent". Conclusion The value orientation of the judiciary can be seen from the reasoning part of the Supreme Court (2019) Supreme Court Minzai No. 46 case: "From the perspective of the value pursuit of the legal system and the value orientation of the judicial policy, the proxy relationship itself is not a normal shareholding relationship. It deviates from the company registration system, social credit system and other systems, and shareholders arbitrarily create the appearance of rights, this leads to inconsistency between the registered right holder and the actual right holder, while providing convenience to the actual investor, allowing the prominent shareholders to release false signals of asset prosperity to the outside world, causing confusion to the company's legal relationship and registration information, and increasing the overall commercial risks and costs of the society, which should be borne by the actual investor ...... If emphasis is placed on recognizing and protecting the rights of the actual investor to prevent implementation, objectively, it will have the legal effect of encouraging the evasion of supervision and debt through the holding of shares, because the 'holding agreement' is a hidden relationship, the two sides usually have a special identity or interest relationship, it is easy to choose whether to avoid legal risks by 'holding on behalf of the external risks to be faced. Therefore, the determination of the rights of the actual contributor cannot exclude enforcement and is conducive to the realization of the values of security, order and efficiency that the law focuses on and pursues in the commercial field". Through the summary of the theory and judicial practice experience, it can be concluded that it is difficult for the hidden shareholders to exclude the common creditors of the prominent shareholders to apply for the enforcement of the holding rights. The enforcement objection may be accompanied by a claim for shareholder identification, and it is argued that the rights of the anonymous shareholder should be protected in preference to the applicant's trust interests.

2022-05-13

Point of View... The way of relief of the endorser in the case of the refusal of the bill of exchange.

2022-05-11

Viewpoint... Legal practice and operational points of investment compliance of state-owned enterprises.

Outline Investment Principles of 1. Enterprises 1. Principles of investment quality 2, reflect the principle of investor will. 3. Investment compliance principles 4, in line with the main business principle. 5. Principle of moderate investment 2. Investment Supervision Authority Division 1. The main responsibility of the enterprise 2, the state-owned regulatory department funder responsibilities. 3. Investment Plan Management 1, the preparation of the annual investment plan. 2. Consideration and reporting of the annual investment plan 3. Management of annual investment plans by state-owned regulatory authorities 4. SOE Investment Procedures Necessary procedures to be followed before (I) investment decisions 1. Project establishment 2, due diligence, feasibility study, risk assessment. 3, legal opinions, review argument. 4. Audit and evaluation matters (II) investment decision-making process 1. Investment decision-making bodies 2, investment decision review materials. 3, investment decision-making opinion and record. 4, re-fulfill the investment decision-making process matters. (III) special regulatory projects, reported to the state-owned regulatory authorities for review before investment implementation. 1, enterprises should be required to state-owned regulatory authorities to submit project materials 2, the investor audit procedures, feedback written comments. 5. post-investment management (I) post-investment management methods 1. Post-investment management of state-owned enterprises 2. Post-investment supervision by state-owned regulatory agencies (II) equity investment post-investment management 1, according to the law to perform the duties of shareholders. 2, pay attention to the return on investment. 3, promote the normalization of financial control. 4. Strengthen property rights management 5, improve the appointment of personnel performance management system. 6, strict leadership part-time management 7. Strengthening Party Building 6. investment risk management and system construction (I) investment risk management 1, Optimize the governance structure of participating companies and prevent investment management risks. 2, strengthen the management of participation in capital contributions, to prevent the risk of false capital contributions. 3, standardize the use of intangible assets such as name, to prevent the risk of goodwill. 4, the whole process of project risk management. 5, strengthen the audit of investment project agreements. Construction of (II) Investment Management System 1. Basic principles to be followed in investment 2. Investment management process, management department and related responsibilities 3. Investment decision-making procedures, decision-making bodies and their responsibilities 4. Negative list of investment projects 5. Post-investment management system 6, the enterprise investment authorization and supervision system. Text Investment behavior is not only an important means of the layout of state-owned assets, but also an important economic behavior of state-owned enterprises, and the quality of investment affects the preservation and appreciation of state-owned assets to a certain extent. The state-owned assets supervision department has always attached great importance to the supervision of the investment behavior of state-owned enterprises. From the central to the local state-owned assets supervision department, a series of regulations on the management of investment behavior have been issued, and special regulations have been made for domestic and foreign investment. Among them, the special regulations for domestic investment management mainly include the investment management regulations of central enterprises represented by the "Central Enterprise Investment Management Measures", as well as the "Shandong Provincial Enterprise Investment Supervision and Management Measures" issued by local governments such as Shandong Province and Jinan City. Local state-owned enterprise investment management regulations such as the "Jinan Municipal Enterprise Investment Supervision and Management Measures". In addition, there are some related supporting regulations, for example, "Notice on Further Strengthening the Supervision of Financial Derivative Business of Central Enterprises", "Notice of the State-owned Assets Supervision and Administration Commission of Shandong Province on Confirming and Announcing the Main Business of Provincial Enterprises", "Guiding Opinions of the State-owned Assets Supervision and Administration Commission of Shandong Province on Strengthening the Management of Shareholding of Provincial Enterprises", etc. The special regulations for overseas investment supervision mainly include the "Measures for the Supervision and Administration of Overseas Investment of Central Enterprises", "," Measures of Shandong Province. Based on the above norms, this paper will make a comprehensive analysis of the basic issues related to investment compliance, with the investment business process as the main line, in order to guide the compliance investment of state-owned enterprises and promote the preservation and appreciation of state-owned assets. Investment Principles of 1. Enterprises The investment principle is the fundamental criterion that enterprises should follow in the investment behavior and the establishment of the investment system, which is at the core of investment supervision and provides guidance and direction for us to correctly understand the relevant provisions of investment. In the central and local state-owned regulatory provisions, both include the content of investment principles, to sum up, the investment behavior of state-owned enterprises should follow the principle of investment quality, reflect the principle of investors' will, the principle of investment compliance, in line with the principle of main business, the principle of moderate investment, the specific points are as follows: 1, the principle of investment quality. Vigorously cultivate and develop strategic emerging industries, follow the concept of value creation, and improve the level of return on investment; implement the new development concept, adhere to quality first, benefit first, focus on key core technologies and development model innovation, enhance the core competitiveness of enterprises, and achieve high Quality development. 2, reflect the principle of investor will. Serve the national development strategy, in line with the national industrial policy, development planning, as well as the state-owned capital layout structure adjustment orientation, reflecting the wishes of investors. 3, investment compliance principles. Abide by relevant laws and regulations and the articles of association of the enterprise, adhere to the principle of prudence, strictly implement the investment management system, strictly implement the investment decision-making procedures, fully estimate the investment risk, and do a good job in the pre-project feasibility study and post-investment evaluation. 4, in line with the principle of the main business. In line with the enterprise's functional positioning, development strategic planning and investment management system, adhere to the focus on the main business, strict control of non-main business, serious overcapacity industry, high-risk business and low-end inefficient industry investment. 5, the principle of moderate investment. The scale of investment is commensurate with the size of the enterprise's assets, profitability, level of operating cash flow, level of assets and liabilities and financing capacity, and with the enterprise's management capacity and human resources. 2. Investment Supervision Authority Division Clarifying the authority of state-owned assets supervision is the basic work to ensure regulatory compliance. In recent years, the CPC Central Committee and the State Council have successively issued a series of opinions on deepening reform and improving the state-owned assets management system, and successively issued the guiding opinions of the CPC Central Committee and the State Council on deepening the reform of state-owned enterprises and some opinions of the State Council on reforming and improving the state-owned assets management system, Further clarify the authority of state-owned assets supervision, the government's state-owned regulatory agency has also developed a corresponding list of delegated powers. 1, the main responsibility of the enterprise. The enterprise is the main body of decision-making, execution and responsibility of investment, and the responsibilities of the main body of enterprise investment mainly include the construction of the system and the organization and implementation of the two aspects, as follows: In the aspect of system construction:(1) reasonably determine the investment direction, strategy and standard according to the functional orientation and development strategic planning;(2) establish the investment management system, improve the investment management system, optimize the investment management system, formulate a more strict and specific negative investment list of the enterprise, improve the scientific decision-making mechanism of investment, and strengthen the construction of investment management institutions and talent team. Organization and implementation:(1) formulate and implement annual investment plans;(2) strictly manage the investment process and strengthen investment risk prevention and control. Strengthen the preliminary work such as due diligence, feasibility study, examination and demonstration of investment projects, make prudent decisions on investment projects, and report special supervision projects to the provincial SASAC for examination and approval after fulfilling the decision-making procedures;(3) organize the implementation of investment projects, earnestly strengthen project management, and carry out post-project evaluation;(4) fulfill the obligation of submitting investment information and cooperate with supervision and inspection, report the investment management system, investment plan and implementation, post-evaluation of investment projects, etc. in accordance with regulations, and cooperate with supervision and inspection;(5) implement the investment management and accountability system. 2, the state-owned regulatory department funder responsibilities. In accordance with the principle of capital management, the State-owned Assets Supervision and Administration Commission focuses on guiding the direction of investment, standardizing decision-making procedures, improving capital returns, and maintaining capital security. It supervises and manages the investment activities of enterprises and performs the responsibilities of investors, mainly including: (1) To study and guide the investment direction of state-owned capital, confirm the main business of enterprises, and support enterprises to invest according to the development strategic planning and around the main business;(2) to guide and supervise enterprises to establish and improve the investment management system;(3) to urge enterprises to prepare and implement the annual investment plan according to the strategic plan, link it with the financial budget, and implement the record management of the annual investment plan. (4) Formulate a negative list of investment projects for supervision of enterprises, and conduct classified supervision of enterprise investment projects;(5) Supervise and inspect the implementation of the enterprise investment management system, including investment decision-making, implementation, and post-evaluation. (6) Establish a reporting system for enterprise investment matters and an investment supervision information system to monitor and analyze enterprise investment information;(7) Hold accountable for the loss of state-owned assets and other adverse consequences caused by illegal investments. The SASAC has issued a negative list of investment projects for supervised enterprises, set up prohibited and specially supervised investment projects, and implement classified supervision. For prohibited investment projects, enterprises are not allowed to invest; for special supervision investment projects, enterprises should report to the SASAC to perform relevant procedures. The content of the negative list of enterprise investment projects remains relatively stable and is adjusted dynamically in due course. 3. Investment Plan Management The investment behavior of state-owned enterprises shall follow the planned management. Article 11 of the measures for investment supervision and administration of central enterprises clearly stipulates that the investment activities of enterprises shall be included in the annual investment plan. In principle, investment projects not included in the annual investment plan shall not be invested, and the annual investment plan shall be adjusted if additional investment is really needed. The enterprise shall strictly implement the annual investment plan. If the planned investment project changes (including suspension or suspension of implementation, additional investment, new projects, etc.) due to major changes in the production and operation environment, the impact of the change shall be analyzed and the corresponding procedures shall be performed in accordance with the regulations. 1, the preparation of the annual investment plan. An enterprise shall prepare an annual investment plan based on its development strategic plan. The annual investment plan shall follow the investment principle and be in line with the financial budget, and the proportion of non-main business investment in the total annual investment plan shall comply with the provisions of state-owned supervision. The investment projects listed in the plan shall complete the necessary preliminary work and meet the conditions for implementation within the year. Among them, the "Shandong Provincial Enterprise Investment Supervision and Management Measures" clearly stipulates that the proportion of non-main business investment in the total annual investment plan shall not exceed 10% in principle. 2. Consideration and reporting of the annual investment plan After the annual investment plan of the enterprise is reviewed and approved by the board of directors (or the corresponding decision-making body, the same below), it shall be reported to the SASAC in accordance with the regulations, and relevant materials shall be attached. State-owned assets regulatory agencies at all levels have different requirements for the submission of investment plans. Article 12 of the Measures for the Supervision and Administration of Investment by Central Enterprises stipulates that the annual investment plan includes: the main direction and purpose of investment; the scale of investment and the level of asset-liability ratio; investment structure Analysis; sources of investment funds; major investment projects. Article 12 of the "Shandong Provincial Enterprise Investment Supervision and Administration Measures" stipulates that the annual investment plan shall be accompanied by materials such as the feasibility analysis report of the investment plan, the resolutions of the board of directors and meeting minutes, and the review opinions of the chief financial officer. The annual investment plan mainly includes: the overall objectives of the annual investment, including the expected contribution of the implementation of the annual investment to the industrial upgrading, structural optimization, development quality and efficiency improvement of the enterprise; the scale and source of investment, including the total amount of planned investment, the source and composition of funds, the impact of the implementation of investment on the asset-liability ratio, etc.; the direction and structure of investment, including the scale and proportion of various investments, investment regions, investment methods; the main investment projects of the plan, including the investment subject enterprise, the planned investment amount, the source of funds, the schedule, etc. Articles 15 and 16 of the Measures for the Supervision and Administration of Investment of Jinan Municipal Enterprises stipulate that the annual investment plan of an enterprise shall report the annual investment plan, the annual investment plan analysis report, the minutes of the Party Committee and the resolution of the board of directors. Among them, the analysis report of the annual investment plan of the enterprise mainly includes the principle, basis and scope of the preparation of the annual investment plan; the situation of the annual investment plan, including the analysis of the investment direction, scale, structure and major investment projects; the necessity and feasibility, including the analysis of the internal and external environment of the investment, the expected contribution of the investment, the supporting conditions required for the implementation of the plan, the source of funds, etc. 3. Management of annual investment plans by state-owned regulatory authorities State-owned assets regulatory agencies at all levels have different requirements for the management of investment plans. Article 13 of the "Measures for the Supervision and Administration of Investment by Central Enterprises" clearly stipulates that the annual investment plans of central enterprises shall be subject to record management. The state-owned assets supervision departments of Shandong Province and Jinan City have not made clear the filing management of the annual investment plan, and realize the supervision through the supervision and guidance of the annual investment plan. The state-owned assets supervision department supervises and guides the preparation of the annual investment plan of the enterprise according to the main business of the enterprise, the negative list of investment projects and the strategic plan of the enterprise development, focusing on the decision-making process, investment direction, investment scale, capital source and other aspects. When necessary, feedback to the company within a specified period of time after receiving the annual investment plan report. Companies should make changes to their annual investment plans based on feedback. 4. SOE Investment Procedures Necessary procedures to be followed before (I) investment decisions 1. Project establishment. In the process of project establishment, the focus is on examining whether the project conforms to the annual investment plan, whether it belongs to the prohibited investment project on the negative list, whether it conforms to the enterprise's functional orientation and main business management regulations, development strategic planning and investment management system, and shall not enter the prohibited project field or participate in commercial speculation through equity participation and other means. 2, due diligence, feasibility study, risk assessment. Before making a decision on an investment project, an enterprise should do a comprehensive and adequate due diligence, feasibility study, risk assessment and other preliminary work from the aspects of policy, market, technology, efficiency, environment, safety and social stability, and do a good job in the research and demonstration of the whole process of project financing, investment, management and exit. For new investment projects, in-depth feasibility studies and demonstrations in technology, market, finance and law should be conducted. (1) Due diligence on the object of cooperation. According to the relevant provisions of the "Guiding Opinions of the State-owned Assets Supervision and Administration Commission of Shandong Province on Strengthening the Management of Provincial Enterprises' Equity Participation" (Lu Guozi [2021] No. 12), equity participation investment should be combined with feasibility studies and demonstrations, comprehensive and in-depth due diligence, through various credit information platforms, Third-party investigations and other methods review the qualifications and reputation of partners, screening and judgment one by one, and selecting partners with high management level, good qualifications and strong economic strength. Intended partners with records of breach of trust or administrative penalties, criminal offences and other illegal records shall be prudent or prohibited to cooperate depending on the circumstances. An enterprise shall not choose a partner who has a specific relationship with the participating investor and the leaders of its controlling shareholders at all levels (referring to the kinship of spouses, children and their spouses, as well as the relationship of common interests, etc.). (2) On the manner of participation. According to the relevant provisions of the "Guiding Opinions of the State-owned Assets Supervision and Administration Commission of Shandong Province on Strengthening the Management of Provincial Enterprises' Equity Participation" (Lu Guozi [2021] No. 12), equity participation investment should be combined with its own business development needs, and the shareholding ratio should be reasonably determined, with capital as the link and property rights As the basis, the rights and obligations of all shareholders are reasonably agreed upon in accordance with the law. It is not allowed to carry out equity participation cooperation by means of fixed dividends and other "named equity participation cooperation, actual loan financing", as well as equity holding, false joint ventures, affiliated operations and other means. 3. Legal opinion

2022-05-10

Viewpoint... A preliminary exploration of the framework system of the whole process of government procurement of goods-to the central budget unit procurement of medical devices as an example.

政府采购是以《政府采购法》为核心的综合性法律工程，《政府采购法》不仅与《预算法》《民法典》《招标投标法》《行政处罚法》《行政事业性国有资产管理条例》等法律法规构成了我国政府采购活动的全过程，还与《中小企业促进法》《节约能源法》《环境保护法》《科学技术进步法》等法律共同组成了我国的政府采购政策体系，在财政支出体系中具有无可替代的重要地位，为实现我国的宏观经济调控发挥着重要作用。医疗器械作为政府采购中较为特殊的货物，具有政府采购货物一般特征的同时，又因直接关系人体健康和生命安全而有其特殊性，本文以中央预算单位采购医疗器械为例，对政府采购货物全流程框架予以简析，期望能够为政府采购工作提供实践参考。   一、政府采购与医疗器械概述   （一）政府采购概述   依据《政府采购法》的规定，政府采购是指各级国家机关、事业单位和团体组织，使用财政性资金采购依法制定的集中采购目录以内的或者采购限额标准以上的货物、工程和服务的行为。因此，政府采购的构成要素有采购主体、资金来源、集中采购目录和采购限额标准、采购标的等四要素。   采购主体包括国家机关、事业单位和团体组织。政府采购医疗器械的采购主体主要是公立医院，而公立医院则属于事业单位。   政府采购使用的资金为财政性资金，即纳入预算管理的资金。依据《政府采购法》的规定，政府采购活动的监督管理职权主要由各级人民政府财政部门行使。依据《预算法》的规定，国家实行一级政府一级预算。预算体系包含中央，省、自治区、直辖市，设区的市、自治州，县、自治县、不设区的市、市辖区，乡、民族乡、镇五级预算。但是，考虑乡镇政府采购规模较小、管理水平相对落后、“乡财县管”、政府采购意识较淡薄等诸多因素，我国的大多数乡镇一级政府采购均纳入县级政府采购管理，比如，《山东省政府采购管理办法》（山东省人民政府令第262号）第五十四条即做了如此规定。   政府采购标的，包括货物、工程和服务。依据《政府采购法》及其实施条例的规定，货物是指各种形态和种类的物品，包括原材料、燃料、设备、产品等。工程，是指建设工程，包括建筑物和构筑物的新建、改建、扩建、装修、拆除、修缮等。服务，是指除货物和工程以外的其他政府采购对象，包括政府自身需要的服务和政府向社会公众提供的公共服务。   此外，为了进一步明确“采购”的概念，《政府采购法》还规定，采购是指以合同方式有偿取得货物、工程和服务的行为，包括购买、租赁、委托、雇用等。政府采购作为公共财政支出的重要组成部分，先预算后采购应是政府采购的题中应有之义。根据《民法典》《民法典担保解释》等法律法规的规定，我国对机关法人、公益为目的的非营利性医疗机构等主体提供的担保行为存在诸多限制，同时，鉴于我国对政府举债融资行为作出了严格的限制，因此，作为兼具融资和法定非典型担保属性的融资租赁行为，不宜作为政府采购医疗器械的采购形式。   （二）我国医疗器械的行业现状概述   根据《医疗器械监督管理条例》的规定，医疗器械是指直接或者间接用于人体的仪器、设备、器具、体外诊断试剂及校准物、材料以及其他类似或者相关的物品，包括所需要的计算机软件；其效用主要通过物理等方式获得，不是通过药理学、免疫学或者代谢的方式获得，或者虽然有这些方式参与但是只起辅助作用；其目的是：（一）疾病的诊断、预防、监护、治疗或者缓解；（二）损伤的诊断、监护、治疗、缓解或者功能补偿；（三）生理结构或者生理过程的检验、替代、调节或者支持；（四）生命的支持或者维持；（五）妊娠控制；（六）通过对来自人体的样本进行检查，为医疗或者诊断目的提供信息。   根据《国家食品药品监督管理总局关于发布〈医疗器械分类目录〉的公告》（国家食品药品监督管理总局公告2017年第104号）和《国家药监局关于发布〈医疗器械分类目录动态调整工作程序〉的公告》（国家药品监督管理局公告2021年第60号）的规定，医疗器械按技术专业和临床使用特点可以分为22个子目录。子目录由一级产品类别、二级产品类别、产品描述、预期用途、品名举例、管理类别等组成。国家依据该目录对医疗器械的注册、备案进行管理。另外，根据国家药监局医疗器械标准管理中心《关于公开〈中国医疗器械标准目录及适用范围〉的通知》的规定，按照医疗器械技术领域，对现行有效的1852项医疗器械标准的适用范围以及标准层级、效力、名称、归口单位等信息逐一进行了梳理，为医疗器械的采购、管理提供了指引性依据。   我国医疗器械行业市场规模较大，且增长持续。根据中国药品监督管理研究会的统计，2019年，医疗器械市场规模为7200亿元，较2015年的3080亿元增长了一倍。2020年，因新冠疫情的突发，与疫情防控相关的大量诊断试剂、医用口罩、体外膜肺氧合（ECMO）机器等一系列医疗器械的需求迅速激增，医疗器械行业主营销售总收入达8725亿元左右，增长幅达21%。自2015年以来，医疗器械行业收入的年均增长率保持在20%左右。   （三）政府采购医疗器械的范围   根据《财政部关于印发〈政府采购品目分类目录〉的通知》（财库〔2013〕189号，以下简称“财库〔2013〕189号文”）的规定，与“医疗器械”相关的货物品目有“医疗设备（编码：A0320）”品目及其33个子品目，包括手术器械（编码：A032001）、普通诊察器械（编码：032002）……其他医疗设备（编码：A032099）等品目。   以中央预算单位采购医疗器械为例，根据《国务院办公厅关于印发中央预算单位政府集中采购目录及标准（2020年版）的通知》（国办发〔2019〕55号，以下简称“国办发〔2019〕55号文”）的规定，前述“医疗设备（编码：A0320）”品目及其33个子品目未纳入中央预算单位政府集中采购目录，同时，中央预算单位分散采购货物的限额标准为100万元以上。因此，中央预算单位预算年度内采购同一品目或类别的医疗器械达到100万元以上的，属于政府采购医疗器械。   二、政府采购预算管理   （一）政府采购预算编制   根据《政府采购法》的规定，负有编制部门预算职责的部门在编制下一财政年度部门预算时，应当将该财政年度政府采购的项目及资金预算列出，报本级财政部门汇总。部门预算的审批，按预算管理权限和程序进行。根据《预算法》的规定，预算的组织程序包含预算草案编制、预算草案的汇总与审批、正式预算、预算执行、预算调整、决算、预算执行情况报告等环节。   实践中，预算草案经编制、汇总、审批形成正式预算前，涉及经费测算、新增资产配置预算、政府采购预算、一上预算、二上预算等多个过程。其中，在政府采购的采购环节中，预算“二上数”具有重要的实践意义。根据《财政部关于做好政府采购信息公开工作的通知》（财库〔2015〕135号）的规定，采购项目的预算金额以财政部门批复的部门预算中的政府采购预算为依据；对于部门预算批复前进行采购的项目，以预算“二上数”中的政府采购预算为依据。   实践中，公立医院使用“自有资金”的采购存在未编制政府采购预算、未纳入政府采购范畴等问题。《财政部对十三届全国人大四次会议第8584号建议的答复》（财库函〔2021〕6号）明确指出，根据《预算法》《事业单位财务规则》（财政部令第108号）等法律规定，公立医院的财政补助收入以及事业收入、经营性收入和其他收入等全部收入，均应纳入预算管理，公立医院凡使用纳入预算管理的资金开展的政府采购活动，都应当执行政府采购规定。   （二）绩效管理   根据《预算法》《中共中央 国务院关于全面实施预算绩效管理的意见》、《国务院关于进一步深化预算管理制度改革的意见》（国发〔2021〕5号）、《财政部关于贯彻落实〈中共中央 国务院关于全面实施预算绩效管理的意见〉的通知》（财预〔2018〕167号）等有关规定，各级政府收支预算全面纳入绩效管理，政府采购项目的全过程纳入绩效管理。   公立医院采购医疗器械的绩效管理，需要按照《事业单位财务规则》（财政部令第108号）、《财政部 卫生部关于印发〈医院财务制度〉的通知》（财社〔2010〕306号）、《财政部 国家卫生计生委 国家中医药局关于加强公立医院财务和预算管理的指导意见》（财社〔2015〕263号）、《国家卫生健康委、国家中医药管理局关于印发〈公立医院全面预算管理制度实施办法〉的通知》（国卫财务发〔2020〕30号）等有关规定的要求，区分预算编制、审批、执行、决算与评价等环节，完善绩效管理流程，制订、执行预算绩效管理制度和实施细则，并按照《国务院办公厅关于加强三级公立医院绩效考核工作的意见》（国办发〔2019〕4号）、《国家卫生健康委办公厅关于印发〈国家三级公立医院绩效考核操作手册（2022版）〉的通知》（国卫办医函〔2022〕92号）的规定进行绩效考核。   （三）资产配置标准   根据《政府采购法》及其实施条例、《行政事业性国有资产管理条例》和《中共中央 国务院关于印发〈党政机关厉行节约反对浪费条例〉的通知》（中发〔2013〕13号）等有关规定，政府采购应当依法完整编制采购预算，严格执行经费预算和资产配置标准，合理确定采购需求，不得超标准采购。   就医疗器械的资产配置，根据《医疗器械监督管理条例》和《国家卫生健康委 国家药品监督管理局关于印发〈大型医用设备配置与使用管理办法（试行）〉的通知》（国卫规划发〔2018〕12号）等法律法规的规定，医疗器械使用单位配置大型医用设备，应当经省级以上人民政府卫生主管部门批准，取得大型医用设备配置许可证。大型医用设备配置管理目录分为甲、乙两类。甲类大型医用设备由国家卫生健康委员会负责配置管理并核发配置许可证；乙类大型医用设备由省级卫生健康行政部门负责配置管理并核发配置许可证。同时，卫生部门对不同公益目的、层级的医院规定了不同的医疗器械等卫生资源配置，如《关于印发发热门诊建筑装备技术导则（试行）的通知》（国卫办规划函〔2020〕683号）对发热门诊配置医疗器械设置了参考目录。   （四）结余结转资金的使用   根据《国务院办公厅关于进一步做好盘活财政存量资金工作 的通知》（国办发〔2014〕70号）、《财政部关于进一步加强地方财政结余结转资金管理的通知》（财预〔2013〕372号）、《财政部关于印发推进地方盘活财政存量资金有关事项的通知》（财预〔2015〕15号）和《财政部关于印发〈中央部门结转和结余资金管理办法〉的通知》（财预〔2016〕18号）的规范性文件规定，预算单位应当细化支出预算编制，加快预算执行进度，建立定期清理机制，压缩结余结转资金规模，深化部门预算管理改革，加强部门结余结转资金管理。其中，部门预算结余资金以及结转两年以上的资金，由同级财政收回，统筹使用。   三、政府采购合同管理   （一）政府采购合同与民法典合同编的一般关系   《政府采购法》第四十三条规定，政府采购合同适用合同法（《合同法》已于2021年1月1日废止）。同时，《民法典》规定招标投标买卖的当事人的权利和义务以及招标投标程序等，依照有关法律、行政法规的规定。因此，除政府采购法律法规有特殊规定的，政府采购合同应当适用《民法典》的规定。   在合同类型上，根据《财政部关于印发〈政府采购需求管理办法〉的通知》（财库〔2021〕22号，以下简称“财库〔2021〕22号文”）的规定，政府采购合同应当按照民法典规定的典型合同类别，结合采购标的的实际情况确定合同类型。   在合同文本上，根据财库〔2021〕22号文的规定，政府采购合同文本应当包含法定必备条款和采购需求的所有内容，包括但不限于标的名称，采购标的质量、数量（规模），履行时间（期限）、地点和方式，包装方式，价款或者报

2022-05-09

Zhongcheng Qingtai, real estate perspective: homestead on the validity of the contract of sale and purchase of housing rules analysis.

1. Introduction The homestead is the collective construction land acquired by the villagers based on the membership of the collective economic organization and used for the construction of houses and their ancillary facilities. Its ownership belongs to the village collective, and the villagers only enjoy the right to use it, which has the nature of social welfare. Based on the principle of "integration of real estate", the houses built by villagers after obtaining the homestead also have social security functions. At present, affected by many factors, the phenomenon of urban residents buying houses on rural homestead occurs from time to time. Can houses on rural homesteads be bought and sold? What is the validity of the sale contract? What kind of legal risks are there? This paper will analyze the case and the referee's point of view. 2. Cases and Referee's Point of View (I) there are no major legal obstacles to the sale of homestead houses between members of the same collective economic organization, it is also recognized in judicial practice. Case: Wu Shihuang and Ding Yongzhong Dispute over Rural Housing Sales Contract (Taizhou Intermediate People's Court of Zhejiang Province [2020] Zhejiang 10 Min Zhong No. 1242) The court held that the focus of the dispute in this case is whether the deed of sale signed by Ding Yongzhong and Wu Shihuang on February 15, 1995 is valid. According to the current law, the homestead is collectively owned by farmers, and the owner of the right to use the homestead only has the right to possess and use the homestead. In principle, the owner of the right to use the homestead can only use the homestead to build houses and ancillary facilities for their residential use. If non-members of the collective economic organization are allowed to obtain the right to use the homestead, it will essentially constitute an obstacle to the collective's exercise of ownership on the homestead. However, the performance of the contract will not lead to the transfer of the right to use the homestead outside the collective economic organization, which does not affect the collective land ownership enjoyed by the collective economic organization. Therefore, there are no major legal obstacles to the sale of homestead houses among the members of the same collective economic organization, It is also recognized in judicial practice. Therefore, the key to the validity of the deed of sale is whether the subject of the deed of sale is a member of the same collective economic organization. At the time of signing the agreement, Wu Shihuang and his wife Sun Caiqin were married. Wu Shihuang's purchase of the homestead belonged to the joint property of his husband and wife with Sun Caiqin. After the purchase, he built a house on the homestead. Wu Shihuang and Sun Caiqin also lived in the house together, that is, the rights obtained also belonged to Wu Shihuang and Sun Caiqin. Although Wu Shihuang and Ding Yongzhong are not members of the same collective economic organization, Sun Caiqin and Ding Yongzhong are members of the same collective economic organization and are qualified to purchase and enjoy the right to use the homestead involved in the case. Therefore, the deed of sale involved in the case should be determined to have occurred between members of the same collective economic organization. The deed of sale involved in the case does not violate the current land management laws and regulations of our country and should not be deemed invalid. In other words, the house involved in the case has been transferred to Sun Ruzhi. Sun Ruzhi is a member of the collective economic organization where the house is located and has the conditions to own the right to use the homestead. The house still belongs to the members of the village collective economic organization in the end. The transfer of the homestead involved in the case actually no longer violates the relevant interests of the village collective, nor does it violate the current land management laws and regulations of our country, the Court does not support Ding Yongzhong's claim to confirm that the deed of sale signed with Wu Shihuang is invalid. (II) urban residents are strictly prohibited from buying rural houses on homesteads. The sales contract involved in the case is invalid because it violates the mandatory provisions of the law and national policy on the circulation of the right to use rural homestead. Case: Zhang Meiping and Xu Hongbo's Re-trial of Disputes over Rural Housing Sales Contracts (Shandong Higher People's Court [2020] Lu Min Zai No. 190) The Court held that the focus of the retrial of this case was: 2. Whether the "house sale agreement" involved in the case is invalid. On the question of whether the "House Sale Agreement" signed by the two parties involved on February 28, 2002 is invalid. After the complainants Zhang Meiping and Xu Hongbo signed the above agreement with the complainants Yang Kun and Wang Xiaobo, the rural homestead, houses and related certificates registered in Xu Hongbo's name were delivered to Yang Kun and Wang Xiaobo for residential use, while the complainants Yang Kun and Wang Xiaobo were both urban registered permanent residence and were not members of the collective economic organization of the village where the houses involved were located. The "the People's Republic of China Land Management Law" and related laws and regulations and national policies make strict restrictions on the transfer of the right to use rural homesteads. The purpose is to prohibit the transfer of the right to use rural homesteads outside collective economic organizations to protect collective organizations. The interests of members. When the "the People's Republic of China Land Administration Law" was revised in 1998, the original 41 provisions on the use of collective land for urban non-agricultural household registration were deleted. When it was revised in 2004, Article 63 stipulated that "the right to use land collectively owned by farmers shall not be transferred, transferred or leased for non-agricultural construction"; At the national policy level, on May 6, 1999, the General Office of the State Council issued the "Notice on Strengthening the Management of Land Transfer and Prohibiting Land Speculation" (Guo Ban Fa [1999] No. 39), Article 2, paragraph 2, which stipulates that "farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, and relevant departments shall not issue land use certificates and property certificates for houses built and purchased illegally", decision of the State Council on Deepening Reform and Strict Land Management (No. 28 [2004] of the State Council) and Issued by the Ministry of Land and Resources<关于加强农村宅基地管理的意见>The notice (land resources issued [2004] 234) and other normative documents are clearly prohibited for urban residents to buy rural houses on the homestead. Therefore, the "Housing Sale Agreement" involved in the case violated the mandatory provisions of laws and national policies on the transfer of rural homestead use rights, and the housing sales involved in the case should be determined to be invalid. If the (III) is approved by the authority with the power of approval and approved by the local collective economic organization, and the contract has been performed without harming the collective and social public interests, it can be deemed valid. Case: Jiang Kaikui and Huang Yongcai Confirmed Invalidation of Contract (Linyi Intermediate People's Court of Shandong Province [2018] Lu 13 Min Zhong No. 8891) The court held that in this case, Jiang Kaikui and Huang Yongcai signed a house purchase and sale agreement in May 2009 and paid the purchase price on the same day. On May 6, 2009, both parties jointly signed a house purchase and sale contract (red and white deeds) in the Real Estate Bureau and delivered the house on the same day. On May 15, 2009 and May 15, 2009, Jiang Kaikui assisted Huang Yongcai in handling the change registration procedures of the house involved in Feixian Real Estate Management Bureau, feixian Real Estate Administration registered the change of the house involved in the case in Huang Yongcai's name, and issued Huang Yongcai the certificate of house ownership S0 × 87. The act of buying and selling houses has been approved by the authority with the right of approval and approved by the local collective economic organization, and the house sale contract has been fulfilled, and the sale has not harmed the collective and social public interests. Therefore, the house sale contract between the two parties in this case is the true intention of both parties, and there is no situation stipulated in Article 52 of the the People's Republic of China Contract Law, which should be deemed valid according to law. (IV) the house is finally purchased by the members of the collective economic organization of the village after the circulation and has been fulfilled, it means that the right to use the homestead has been restored to the scope permitted by laws and regulations, that is, the illegality of the first-hand house buying and selling has been eliminated and is not deemed invalid. Case: Zheng Wendi et al. and Peng Guizhen et al. (Beijing No.1 Intermediate People's Court [2021] Jing 01 Min Zhong No. 8482) The court held that Zheng Wendi's claim to divide the interests of demolition was based on the fact that the contract for the sale of rural houses signed with Peng Deqi was confirmed invalid by the court, but Peng Deqi said that he had already sold the houses involved to Peng Guizhen, a villager from Erjie Village, Kangzhuang Town, and the sale of rural houses should be valid. Therefore, the focus of the dispute in this case is the effectiveness of the serial sale of rural houses. In this regard, the court argued as follows: the right to use the homestead is a right enjoyed by the members of the rural collective economic organization, which is related to the specific membership of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form, but it is not prohibited to circulate within the members of the collective economic organization. In the serial sale of rural houses, the former first-hand housing sales contract is confirmed to be invalid, which does not necessarily affect the validity of the latter-hand housing sales contract, and should be determined according to whether there are other statutory invalid circumstances in the latter-hand sales contract. In this case, the disputed house has gone through two sales. Zheng Wendi sold the disputed house to Peng Deqi in 1997 and Peng Deqi sold the disputed house to Peng Guizhen in 2010. In the above-mentioned sales process, because Peng Deqi was not a villager in Yanqing District, his purchase of the litigious house was deemed invalid by the court according to law, but Peng Deqi sold the litigious house to Peng Guizhen, who was a villager, which means that the right to use the homestead has been restored to the scope permitted by laws and regulations, that is, the illegality of first-hand housing sales has been eliminated. 3. Summary Analyzing the judgment rules of the above cases, it is not difficult to summarize the basic attitude of the court to the validity of the contract for the sale of houses on rural homesteads. It is summarized as follows: A contract (I) the purchase and sale of a house on a homestead between members of the same collective economic organization is valid. Here, "between members of the same collective economic organization" should be understood in a broad sense. Including: ① both the buyer and the seller are members of the collective economic organization of the village where the house is located; ② the buyer is not a member of the collective economic organization of the village where the house is located at the time of purchase, and has become a member of the collective economic organization of the village at the time of litigation; ③ the buyer is not a member of the collective economic organization of the village where the house is located, but his spouse, parents and children are members of the members of the collective economic organization. In the above three cases, the housing sales contract signed by the buyer and the seller should be determined to occur between members of the same collective economic organization and should not be deemed invalid. (II) the contract for the sale of homestead houses between members of the same collective economic organization is deemed invalid in principle, it can be deemed valid if it is approved by the organization or department with the right of approval. (III) the house is finally purchased by the members of the collective economic organization of the village after the transfer, and the contract has been fulfilled, the contract shall not be deemed invalid. According to the "Decision of the State Council on Deepening Reform and Strict Land Management" (Guo Fa [2004] No. 28), "Prohibit urban residents from purchasing homesteads in rural areas", "The Office of the Central Rural Work Leading Group and the Ministry of Agriculture and Rural Affairs on Further Strengthening the Management of Rural Homesteads" Notice "(Zhong Nong Fa [2019] No. 11)" Homesteads are the basic housing security for rural villagers, it is strictly forbidden to use rural homestead to build villa compound and private hall. It is strictly forbidden to illegally occupy, buy and sell homestead in the name of circulation. Under the pattern of "integration of real estate", the purchase of rural houses by non members of the collective economic organization is easy to cause damage to the rights and interests of the collective economic organization. Therefore, regarding the validity of the contract for the sale of houses on the homestead, the court's judgment is based on the principle of invalidity, and validity is the exception. For the homestead sales contract after the confirmation of invalid treatment, the author briefly summarized as follows: In the above-mentioned judicial practice, the dispute requiring confirmation of the validity of the homestead housing contract is mostly due to the increase in the value of the house caused by the expropriation and demolition of the land after the sale of the rural house, and the seller (villagers) filed a lawsuit to confirm the invalidity of the contract. If the contract is confirmed invalid by the court and the house has not been demolished, the claim shall be made after the specific relocation interests are clear. If the house on the homestead has been demolished due to expropriation and cannot be returned, the court generally tends to think that the seller violates the principle of good faith and fairness, combined with the fault of both parties, according to the seller, buyer 3: proportional distribution of 7 (see civil judgment No. 11060 of the Intermediate People's Court of Qingdao City, Shandong Province [2021] and civil judgment No. 3888 of the Intermediate People's Court of Xuzhou City, Jiangsu Province [2021]). However, if there is an agreement on the demolition compensation in the sales contract, from its agreement, the validity of the clause will not be affected by the invalidity of the sales contract (see Shandong Qingdao Intermediate People's Court [2021] Lu 02 Minshen No. 418 Civil Ruling).</关于加强农村宅基地管理的意见>

2022-05-09

State-owned supervision... Do state-owned enterprises need to enter the market to transfer their share of property in a limited partnership?

Recently, we have been entrusted by the consultant unit to issue a legal opinion on the 20% property share of a limited partnership enterprise to be transferred. Among them, regarding the transaction method of the target share transfer, that is, whether the state-owned enterprise needs to enter the market to transfer its property share in the limited partnership enterprise, after inquiring about relevant laws and regulations, the website of SASAC and consulting with the State-owned Assets Supervision and Administration Commission of Shandong Provincial People's Government, it is preliminarily believed that the transfer of the share of the property of a limited partnership held by the state-owned advisory unit in that country does not need to be made public with the property rights trading institution. However, in practice, due to the lack of clear legal provisions, it is controversial whether the transfer of limited partnership property shares by state-owned enterprises is subject to the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (Order No. 32 of the Ministry of Finance of the State-owned Assets Supervision and Administration Commission of the State Council) and whether it is necessary to enter the market for transactions. I. Controversies and main points in practice [Viewpoint 1]: State-funded limited partnerships are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not need to enter the transaction. The main reasons for holding this view are as follows: The legislative basis of Decree No. 1.32 does not include the Partnership Law, so state-funded limited partnerships are not regulated and bound by it. 2. The State-owned Assets Supervision and Administration Commission of the State Council has made it clear in its response to a question on its official website on May 27, 2019 that "the scope of application of Decree 32 is for corporate enterprises established under the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises shall be stipulated separately.", As a result, partnerships established under the the People's Republic of China Partnership Act are not subject to Decree 32, and the transfer of shares of limited partnership property by state-owned enterprises does not require a market entry transaction. [Viewpoint 2]: The transfer of the share of limited partnership property by state-owned enterprises shall be subject to Decree No. 32 and shall be carried out publicly in property rights trading institutions. The main reasons for holding this view are as follows: 1. From the definition of the concept of state-owned assets of enterprises and state-owned enterprises and enterprises, the provisions of the State-owned assets Law of Enterprises and Decree No. 32 on "state-funded enterprises", "state-owned and state-controlled enterprises, enterprises funded by state-owned enterprises" and "various forms of capital contribution to enterprises" do not exclude "partnership enterprises, the share of limited partnership property held by a state-owned enterprise belongs to the state-owned assets of the enterprise, so the transfer of the share of limited partnership property by a state-owned enterprise shall be made public in the property rights trading institution. 2. The reply to the question made by the State-owned Assets Supervision and Administration Commission of the State Council on its official website on May 27, 2019, that is, "The scope of application of Decree No. 32 is for corporate enterprises established in accordance with the the People's Republic of China Company Law. The supervision and management of the transfer of shares of limited partnerships by state-owned enterprises is separately stipulated" is not a formal document, which has no legal effect, and the reply also indicates that the opinion is for reference only. 3. On February 7, 2020, the State-owned Assets Supervision and Administration Commission of the State Council issued the Interim Provisions on the Registration of State-owned Rights and Interests of Limited Partnership Enterprises, Article 1 of which states that its purpose is "to strengthen the registration and management of state-owned rights and interests of limited partnership enterprises and to reflect the status of state-owned rights and interests of limited partnership enterprises in a timely, accurate and comprehensive manner, in accordance with the" State-owned Assets Law of the People's Republic of China Enterprises "," the People's Republic of China Partnership Enterprise Law "," Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises "(State Council Order No. 378) and other relevant laws and regulations, these regulations are formulated". It can be seen from the promulgation of these regulations that the supervision The department has begun to strengthen the supervision of the state-owned rights and interests of limited partnerships. At present, although there are no laws and regulations to make clear provisions on the transfer of state-owned shares of partnership enterprises, the introduction of this provision to a certain extent releases a signal that the disposal of state-owned rights and interests of limited partnership enterprises may be clearly regulated in the future. Two relevant laws and regulations 1. Law on State-owned Assets of the People's Republic of China Enterprises (hereinafter referred to as the Law on State-owned Assets of Enterprises) Article 2: "The state-owned assets of enterprises (hereinafter referred to as state-owned assets) referred to in this Law refer to the rights and interests formed by the state's various forms of capital contributions to enterprises." Article 5 The term "state-funded enterprises" as mentioned in this Law refers to wholly state-owned enterprises and wholly state-owned companies, as well as state-owned capital holding companies and state-owned capital shareholding companies. Article 30 Major matters such as merger, division, restructuring and listing of state-funded enterprises, increase or decrease of registered capital, issuance of bonds, major investment, provision of large amount of guarantee for others, transfer of major property, large amount of donation, distribution of profits, dissolution and application for bankruptcy shall abide by laws, administrative regulations and the provisions of the articles of association of the enterprise, and shall not damage the rights and interests of investors and creditors. Article 51 The term "transfer of state-owned assets" as mentioned in this Law refers to the act of transferring the rights and interests formed by the state's capital contribution to the enterprise to other units or individuals in accordance with the law, except for the free transfer of state-owned assets in accordance with the provisions of the state. Article 54: "The transfer of state-owned assets shall follow the principles of compensation for equal value and openness, fairness and impartiality. Except for those that can be transferred by direct agreement in accordance with the provisions of the State, the transfer of state-owned assets shall be carried out openly in property rights trading venues established in accordance with the law". 2. Measures for the Supervision and Administration of the Transactions of State-owned Assets of Enterprises (hereinafter referred to as "Decree No. 32") Article 1 In order to regulate the trading of state-owned assets of enterprises, strengthen the supervision and management of state-owned assets transactions of enterprises, and prevent the loss of state-owned assets, these measures are formulated in accordance with the Law on State-owned Assets of the People's Republic of China Enterprises, the the People's Republic of China Company Law, the Interim Regulations on the Supervision and Administration of State-owned Assets of Enterprises and other relevant laws and regulations. Article 3 The transaction of state-owned assets of enterprises referred to in these Measures includes: (1) the transfer of rights and interests formed by institutions performing the duties of investors, state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as the transfer of enterprise property rights); the increase of capital by (II) state-owned and state-owned holding enterprises, and state-owned actual control enterprises (hereinafter referred to as enterprise capital increase), except for the government's investment in state-funded enterprises by increasing capital, (III) the transfer of major assets of state-owned and state-controlled enterprises and state-controlled enterprises (hereinafter referred to as the transfer of enterprise assets). Article 4 The term "state-owned and state-owned holding enterprises and state-owned actual control enterprises" as mentioned in these Measures includes: wholly state-owned enterprises (companies) funded by (I) government departments, institutions and institutions, as well as state-owned wholly-owned enterprises in which the above-mentioned units and enterprises directly or indirectly hold 100% of the total shares; (II) the units and enterprises listed in the (I) paragraph of this article are individually or jointly funded, with a total ownership of more than 50%, and one of them is the enterprise with the largest shareholder; (III) the enterprises listed in the (I) and (II) paragraphs of this article, the subsidiary enterprises at all levels with an equity ratio of more than 50%; (IV) government departments, institutions, institutions, single state-owned and state-owned holding enterprises directly or indirectly hold less than 50% of the shares, but are the largest shareholder, and through the shareholders' agreement, the articles of association, the resolution of the board of directors or other agreement arrangements can actually control the enterprise. Article 13 The transfer of property rights shall, in principle, be carried out openly through the property rights market. The transferor may, according to the actual situation of the enterprise and the work schedule, adopt a combination of information pre-disclosure and formal disclosure, disclose the property rights transfer information in stages through the website of the property rights trading institution, and openly solicit the transferee. The time for formal disclosure of information shall not be less than 20 working days. three summary The author believes that although the SASAC has made a targeted reply to the question of whether the transfer of the share of limited partnership property by state-owned enterprises is applicable to Decree 32, the content of the reply is not comprehensive, the expression is not clear, and it is not an official document, which has no legal effect. According to the provisions of the State-owned Assets Law of Enterprises, the share of limited partnership property held by state-owned enterprises belongs to the state-owned assets of enterprises. In principle, the transfer of the share of limited partnership property by a state-owned enterprise shall be carried out publicly in the property rights trading place. At present, there is no clear legal regulation on whether the transfer of limited partnership property shares by state-owned enterprises needs to be traded, and there are disputes in practice. However, from the perspective of relevant legislative purposes, the principles of state-owned assets trading and the prudence of state-owned assets supervision, the transfer of limited partnership property shares by state-owned enterprises can be carried out openly in property rights trading institutions with reference to the application of Decree No. 32, and it is best to get a written reply to avoid the transaction of state-owned assets being identified as a violation of regulations and causing the loss of state-owned assets.

2022-05-08

Zhongcheng Qingtai | HR Legal Corner: Corporate employment compliance during the new coronary pneumonia epidemic

Recently, the new crown virus Omicjon variant strain caused a national outbreak. The outbreak of the epidemic is bound to be accompanied by the corresponding isolation, closure, control measures, the necessary prevention and control so that we have to make changes and adjustments to life, work, but also to the normal employment management of enterprises to bring challenges. Small and medium-sized enterprises, catering, tourism, training and other industries are the main groups severely affected by the epidemic, how to control labor costs, legal compliance, and prevent legal risks in the severe situation of the epidemic, involving many specific issues. This paper provides some guidance for enterprises only from the aspects of wage payment, annual leave arrangement, contract management and limitation suspension. 1. Wage Payment As stated in the previous article, the Human Resources and Social Security Department [2020] No. 5 "Notice on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus", [2020] No. 8 "Opinions on Stabilizing Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by Novel Coronavirus to Support Enterprises to Resume Work and Production" and February 22, 2022 "Answers to Questions on Labor Employment, Labor Relations, Wages, Wages, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security, Social Security and the issue of wages is regulated. That is, during the delayed resumption of work or non-return to work affected by the epidemic, the enterprise may consult with the employees in accordance with the relevant provisions of the State on the payment of wages during the shutdown and shutdown, and pay wages in accordance with the standards stipulated in the labor contract within a wage payment cycle, and pay living expenses in accordance with the relevant provisions if more than one wage payment cycle. Whether the remuneration for work includes bonuses and subsidies depends on the specific circumstances. If the monthly payment is fixed, it shall not fluctuate due to the attendance or work performance of the worker, and shall be paid as a fixed wage composition. If the employee is reimbursed according to the actual bill or some welfare treatment decided by the enterprise, it may not be paid. If there are special agreements or provisions in the labor contract or the rules and regulations of the enterprise, the agreements or provisions shall be followed as long as they do not violate the provisions of the law. So the decline in business efficiency, can reduce the wage standard? The "Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the New Coronavirus Infected Pneumonia Epidemic" (Human Resources and Social Security Department Mingdian [2020] No. 5) stipulates: "If an enterprise has difficulties in production and operation due to the impact of the epidemic, it can adopt methods such as salary adjustment, job rotation, and shortening working hours through consultation with employees, and try not to lay off or reduce layoffs." At the same time, you can refer to the provisions of a city: "In the special period of epidemic prevention and control, to ensure the orderly resumption of work and production of employers to resume the market, as far as possible to reduce the pressure on the production and operation of employers, stabilize the jobs of workers and ensure employment, is the primary task at present. For the employer in accordance with legal procedures through democratic consultation with the workers' congress, trade unions, staff representatives on the transfer of wages, delay in the payment of wages, rotation of jobs, work stoppage and other matters to reach an agreement, and the opinion is fair and reasonable, only applicable during the epidemic period, can be used as a basis for adjudication." In other words, you can negotiate a salary reduction and delay payment, but you need to pay attention to the legality of the procedure. It should be noted that, according to the announcement issued by the Ministry of Finance and the General Administration of Taxation and the provisions of the Labor Contract Law, during the prevention and control of the epidemic, the unit to provide or issue to employees masks, medical supplies, killing supplies, etc., can not be included in wages, salary income, nor because the efficiency of the enterprise is affected by the payment of in-kind instead of wages. Special provisions for workers are that temporary work subsidies and bonuses obtained by medical personnel and epidemic prevention workers are exempt from personal income tax. 2. leave arrangements According to the Ministry of Human Resources and Social Security and the Supreme People's Court issued the "Notice on the Joint Release of the First Batch of Typical Cases of Labor and Personnel Disputes", "Measures for the Implementation of Paid Annual Leave for Enterprise Employees", and the Ministry of Human Resources and Social Security issued [2020] No. 8 "Opinions on Stabilizing Labor Relations to Support Enterprises to Resuming Work and Resumption of Production during the Prevention and Control of Novel Coronavirus Infection Pneumonia Epidemic, negotiate with employees to give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave. Enterprises can give priority to the use of paid annual leave, enterprise-owned welfare leave and other types of leave to minimize the loss of business operations and workers' income from the new coronary pneumonia epidemic. When arranging for workers to give priority to the use of paid annual leave during the period of delaying the resumption of work and production, the enterprise should try its best to consider the actual situation of the workers and perform the negotiation procedures in accordance with the law, but there is no requirement that "consensus must be reached through consultation", regardless of whether the workers agree or not, the enterprise can make overall arrangements for paid annual leave after performing the negotiation procedures, but pay paid annual leave wages in accordance with the law. When employees in the closed and controlled areas are unable to work normally, employees can be allowed to take unpaid personal leave upon mutual agreement or upon application by employees. Workers should accurately understand the laws and policies, and actively accept the employer arrangements. Therefore, during the prevention and control of the new coronavirus epidemic, in order to actively respond to the national call, strengthen the prevention and control of the pneumonia epidemic of the new coronavirus infection, effectively reduce the gathering of personnel, block the spread of the epidemic, and better protect the life safety and health of employees, employees can be arranged to take annual leave or unpaid personal leave according to the specific production and work conditions of the unit and comprehensively consider the wishes of the employees. 3. Contract Management 1. Signing of contract For new employees who have already issued an offer but are affected by the epidemic, the enterprise can withdraw the change of the entry time and resend it before the offer is delivered. If the offer has been delivered to the candidate and the candidate has confirmed it, the enterprise cannot change it at will. However, if the epidemic control enterprise is in a shutdown, shutdown state and other objective reasons can not handle the entry in a timely manner, constitute a legal force majeure, the enterprise can ask the candidate to postpone the entry, it is recommended that the enterprise and the candidate friendly consultation, to avoid disputes. If the written labor contract cannot be signed or renewed in time due to the impact of the epidemic, it is recommended to negotiate with the laborer and conclude the written labor contract in electronic form, but it should meet the requirements of the electronic signature law and other legal provisions, or sign it by video, save relevant videos or evidence, and sign it in time after the factors affecting the epidemic are eliminated. 2. Rescission of contract Many enterprises are facing operational difficulties due to the impact of the epidemic, but want to terminate the labor contract with employees in accordance with the provisions of Article 40, Item (III) of the Labor Contract Law, but it should be noted that the requirements of this clause are more stringent and need to meet the conditions before it can be applied. For example, the enterprise is required to have major changes in the objective conditions on which the labor contract is concluded due to the epidemic, such as force majeure caused by the epidemic or shutdown of the enterprise due to policy influence, etc., and there is a causal relationship between the changes and the inability to continue to perform the labor contract, resulting in the inability to perform all or major terms of the labor contract, or the continued performance will cause great damage to the interests of the enterprise, seriously unfair, etc. In terms of procedures, the company and its employees are required to conduct honest and friendly negotiations on changing the content of the labor contract. The company has made efforts to continue the performance of the labor contract, but the two parties have not yet reached an agreement. The company has fulfilled the notification procedure one month in advance or paid one month. The salary is used as a payment, and the economic compensation is paid in accordance with the law, and the labor union is notified. So, if the employee is diagnosed or infected, can the labor contract be terminated? If an employee is diagnosed or infected with new coronary pneumonia, the unit may not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of the Labor Contract Law, but it is not absolutely impossible to dismiss the employee. If the employee's labor contract expires during the isolation period, the enterprise cannot terminate the contract on the grounds of the expiration of the contract, but waits for the labor contract to automatically extend to the expiration of the employee's medical treatment period, the expiration of the medical observation period, the expiration of the isolation period or the end of the emergency measures taken by the government. So can companies make layoffs? In accordance with the provisions of the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected with Novel Coronavirus, pneumonia patients, suspected patients, and close contacts infected with novel coronavirus are treated in isolation. During the period or medical observation, as well as enterprise employees who cannot provide normal labor due to the government's implementation of isolation measures or other emergency measures, economic layoffs cannot be used. Relevant laws and regulations have strict requirements on the entity and procedure of economic layoffs. Specific personnel shall not be dismissed, specific personnel shall be recruited first, legal procedures such as listening to the opinions of trade unions or employees and reporting to the labor administrative department shall be performed, and there is no clear standard for the extent to which enterprises can be identified as serious difficulties in production and operation. Therefore, under the current circumstances, even if enterprises need to lay off employees due to epidemic conditions, careful consideration should be given to the manner of release and professional lawyers should be hired to develop a layoff plan. Suspension of 4. aging The Notice of the General Office of the Ministry of Human Resources and Social Security on the Proper Handling of Labor Relations during the Prevention and Control of the Pneumonia Epidemic Infected by the New Coronavirus stipulates: "If the parties are unable to apply for labor and personnel dispute arbitration during the statutory arbitration limitation period due to the impact of the epidemic, the arbitration limitation period shall be suspended. The period of limitation for arbitration shall continue to be calculated from the date when the cause for suspension of the limitation period is eliminated. If it is difficult for a labor and personnel dispute arbitration institution to hear a case within the statutory time limit due to the impact of the epidemic, the hearing period may be extended accordingly." The (I) of Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Proper Trial of Civil Cases Involving the New Coronary Pneumonia Epidemic in accordance with the Law stipulates: ...... (VI) suspend the statute of limitations in accordance with the law. During the last six months of the statute of limitations period, if the right holder cannot exercise the right of claim due to the epidemic or epidemic prevention and control measures, the people's court shall support the suspension of the statute of limitations in accordance with the first paragraph of Article 194 of the General Principles of Civil Law. The period of the proceedings (VII) be postponed in accordance with the law. If the time limit for litigation prescribed by law or designated by the people's court is delayed due to an epidemic or epidemic prevention and control measures, and the parties apply for an extension of the time limit in accordance with Article 83 of the Civil Procedure Law, the people's court shall consider whether to grant it in accordance with the epidemic situation and the evidence provided by the parties, and protect the litigation rights of the parties in accordance with the law. If the parties concerned are diagnosed with new coronary pneumonia, suspected new coronary pneumonia, asymptomatic infected persons and related close contacts, and the time limit for litigation expires during the period of isolation in accordance with the law, the people's court shall grant permission to apply for an extension of the time limit in accordance with the provisions of this article. It is recommended that enterprises should pay attention to the local government's policy of control and closure during the outbreak and retain relevant documents so that they can be used to prove the existence of a suspension of arbitration/statute of limitations. In summary, due to the epidemic caused by the employer's production and operation difficulties, the employer can guide the workers through consultation, the use of priority arrangements for annual leave, adjustment of wages, deferred wages, rotation, shortening of working hours, suspension of production and other ways of flexible handling, stable employment relations, the necessary layoffs or termination, pay attention to procedural compliance. Enterprise HR should pay attention to the retention of relevant control and closure policy documents during the outbreak to prove that there is a time limit for suspension.

2022-05-07

Building Materials Perspective | Quality Objection Period for Defects in Custom Glass

Introduction As an important part of the building materials industry, glass has played an important role in real estate, automobiles, solar appliances and other fields. The glass industry related to the upstream and downstream industry chain is long, involving many subjects, complex trading patterns, and prone to disputes. Through the statistics of glass enterprises related cases in recent years, we observe that the legal disputes faced by glass enterprises mainly focus on contract and quasi-contract disputes, labor and personnel disputes, tort liability disputes and so on. Among them, under contract disputes, sales contract disputes, loan contract disputes, contract disputes, construction contract disputes, lease contract disputes are common types of disputes. In terms of the geographical distribution of cases, the number of legal disputes related to glass enterprises in Shandong Province ranks second in the country. On the one hand, the number of glass enterprises in Shandong is in the forefront of the country. On the other hand, it also reflects that some glass enterprises need to pay attention to the prevention, control and response of legal risks. Sales is an important part of glass enterprises, in the process of glass sales "custom glass" is often signed in the form of contract. A contract of contract is a contract in which the contractor completes the work in accordance with the requirements of the contractor, delivers the results of the work, and is paid by the contractor. In a contract of work, the party who completes the work as agreed is called the contractor and the counterparty is called the fixer. The most common risk of disputes in glass customization contracts is the quality of customized glass. The common situation is that the fixer refuses to pay the amount payable by the glass company or requests to terminate the contract on the grounds that the product has quality problems, while the glass company, as the contractor, thinks that the fixer has already met the payment conditions and should pay the price according to the contract. The above differences are easy to cause litigation. This paper will combine the relevant laws and regulations and cases to analyze the quality objection period and the conditions for the termination of the contract that the contractor unilaterally believes that the work results delivered by the contractor have quality defects. Referee's point of view Case 1:(2021) Yu 03 Min Zhong No. 533 [Case Introduction] China X Da Decoration Engineering Group Co., Ltd. (hereinafter referred to as "Decoration Company") is the ordering party and North X Glass Technology Co., Ltd. (hereinafter referred to as "Glass Company") is the contractor to sign two "Processing Glass Orders Contract", which stipulates that the glass company orders the glass according to the requirements of the decoration company. The contract stipulates the provisional total price and settlement method. In addition, article 7 of the contract stipulates that if the ordering party considers that the variety, configuration, specification, quantity and quality of the glass are inconsistent with the contract, it shall submit a written objection to the contractor within 15 days after receiving the glass, otherwise, the glass shall be deemed to conform to the contract; if the ordering party has used the glass, it shall also be deemed to be qualified. Article 8 stipulates that when installing and using glass, the ordering party shall first inspect the variety, configuration, specification processing requirements and surface quality of the glass, otherwise, the contractor shall not compensate for the losses caused. The two sides also agreed on quality and acceptance standards and other terms. After the contract was signed, the glass company fulfilled its contractual delivery obligations and issued a special VAT invoice to the decoration company. The decoration company paid a total of 1.04 million yuan to the glass company, but it still owes 269000 yuan. Due to the decoration company's delay in fulfilling its payment obligations, the glass company sued the court for the decoration company to pay the glass, and the decoration company argued in the lawsuit that the glass had quality problems and refused to pay. [The court held that] the contract signed by both parties is legal and valid, and both parties shall perform their respective obligations in accordance with the contract. In this case, the glass company has delivered the ordered glass to the decoration company in accordance with the contract. The decoration company argued that the reason for its refusal to pay the remaining amount was that the glass delivered by the glass company was delayed and had quality problems. First of all, the two parties clearly agreed in the contract that the ordering party believes that the variety, configuration, specification, quantity and quality of the glass do not conform to the contract, it shall submit a written objection to the contractor within 15 days after receiving the glass, otherwise, the glass shall be deemed to conform to the contract. If the ordering party has already used glass, the glass is also deemed to be qualified, but the decoration company has not provided sufficient evidence to prove that it has sent written materials to the glass company within the objection period agreed in the contract. Secondly, it has been more than four years since the glass company delivered the glass. After the glass company sued, the decoration company argued and counterclaimed that the delivery of the goods was delayed and there were quality problems, which was obviously inconsistent with market trading habits. Even from the time when the decoration company last raised questions about the quality of the glass involved in the case, its claim obviously exceeded the statute of limitations, so its application for appraisal of the quality of the glass involved in the case was not allowed. Combined with the fact that the decoration company has fulfilled its obligation to pay nearly 80% of the total amount of the two fixed contracts, it will not accept the above-mentioned reasons for refusing to pay the remaining amount. The second instance of this case upheld the original verdict. Case 2:(2021) E 09 Min Zhong No. 2963 [Case Introduction] X Special FRP Company (hereinafter referred to as "FRP Company") and X Xiang Chemical Company (hereinafter referred to as "Chemical Company") have signed one FRP processing contract and one technical agreement each. Among them, the glass fiber reinforced plastic processing is stipulated in the contract: 6. quality assurance: the contractor guarantees that the service life of the equipment is 20 years, and that the equipment provided to the employer has not been used. under the conditions of correct installation, normal use and maintenance, the quality warranty period of the main equipment is 3 years. if there is any quality problem in the main equipment within 3 years, the contractor shall repair or replace the corresponding parts free of charge, the maintenance or replacement of the equipment corresponding extension of the quality assurance period, if the maintenance still does not meet the requirements of the demand side, the contractor shall pay the contractor according to the contract value of the purchased equipment... Since then, the two sides have signed a processing contract and supplementary agreement, installation contract, etc. After FRP completed the installation of FRP storage tanks, the chemical company refused to pay the remaining amount and demanded a refund on the grounds of leakage. After that, FRP sued the court for compensation for processing. [The court held that] the existing quality problems of the glass fiber reinforced plastic storage tank involved in the case could not lead to the termination of part of the contract between the two parties. Once a contract is established, it shall have legal effect, and the parties shall perform their obligations in accordance with the agreement and shall not modify or terminate the contract without authorization. In this case, the liability for breach of contract in the Processing Contract stipulates that if the equipment provided by the contractor does not meet the quality requirements (specifications, quality, performance) stipulated in the contract, the contractor shall repair according to the requirements of the contractor, and return the goods after the repair still fails to meet the requirements....... From the above agreement, if the equipment provided by the glass steel company does not meet the quality requirements agreed in the contract, it should first be repaired according to the requirements of the chemical company, and then returned if the repair still fails to meet the requirements. Regarding the quality problems of the storage tanks involved in the case, from the content of the FRP company's reply on April 1, 2019, the problems raised by the chemical company have been rectified. By the time Glass Steel filed its lawsuit in October 2019, there was no evidence that Chemical had raised a quality objection to Glass Steel. In the litigation of this case, it was identified that some storage tanks had quality problems. According to the contract, maintenance should be carried out first, and the goods should be returned after the maintenance still failed to meet the requirements. Now the chemical company has not submitted evidence to prove the fact that the quality problems of the storage tanks cannot be solved through maintenance. Moreover, in the second instance, the chemical company stated that 10 storage tanks involved in the case are still in use, so it is not enough to prevent the contract purpose, the reasons for the chemical company's request to terminate part of the contract cannot be established, and its litigation request has no factual basis and legal basis, and this court will not support it. If the tank involved in the case is repaired and there are still serious quality problems, the chemical company may sue separately to claim its rights. Lawyer Law Review From the above cases, we can infer that the common view of the court is that in the contract for the quality of the disagreement period is agreed to be subject to the contractual agreement, in addition to the actual time of use of the fixer and whether it has been repaired and other circumstances comprehensive judgment. However, if there is no clear agreement in the contract on how the quality objection period should be determined, there is still some controversy. One way of thinking is that the current Civil Code and judicial interpretation of the contract for the contractor to raise quality objections is not clearly defined, so it can be compared to the general statute of limitations period as the period of objection. According to the relevant provisions of Article 780 of the Civil Code on the delivery and acceptance of the contract, and with reference to the provisions of Article 188 of the Civil Code on the limitation of action period, the contractor has the right to raise objections to the quality defects of the delivered products within 3 years after the completion of the contract, and the contractor is also obliged to bear the liability for defect guarantee for the quality of the fixed crops within 3 years. Another way of thinking is to refer the contract of contract to the provisions of the quality objection period of the contract of sale. In accordance with Article 780 of the Civil Code, the fixer has a legal obligation to accept the results of the work. That is to say, when accepting the results of the work, if the obvious quality defects found by the naked eye or existing technical means can be inspected by certain national or industry standards, they should raise objections in time. For hidden defects, that is, those that cannot or are not easy to find during acceptance and can only be found in subsequent use, objections should also be raised in time. If the objection is not raised in time, the quality may be presumed to be qualified and the fixer shall pay the price as agreed in the contract. For the limit of the longest quality objection period of the contract, reference may be made to Article 621 of the Civil Code, "If the parties agree on an inspection period, the buyer shall notify the seller of the fact that the quantity or quality of the subject matter does not conform to the agreement within the inspection period. If the buyer fails to give notice, the quantity or quality of the subject matter shall be deemed to be in conformity with the agreement. If the parties have not agreed on an inspection period, the buyer shall notify the seller within a reasonable period of time after discovering or should have discovered that the quantity or quality of the subject matter does not conform to the agreement. If the buyer fails to notify the seller within a reasonable period of time or within two years from the date of receipt of the subject matter, the quantity or quality of the subject matter shall be deemed to be in accordance with the agreement; however, if there is a quality assurance period for the subject matter, the quality assurance period shall apply, and the two-year provisions shall not apply. If the seller knows or should know that the subject matter provided does not conform to the agreement, the buyer is not subject to the notice time limit stipulated in the preceding two paragraphs." By reference to the maximum period specified under the contract of sale, it may also be presumed that the period of quality objection to the contract of contract is set at 2 years. That is, within 2 years, regardless of whether the fixed crop quality defects are found by the fixer, as long as no objection is raised to the contractor, the approved quality is deemed to be qualified. If the quality objection period is exceeded, the author shall not have the right to refuse payment or request the termination of the contract on the basis of quality problems. In short, legal disputes over the period of objection to glass quality defects should comprehensively consider the nature of the transaction, the purpose of the transaction, the way of the transaction, the way of the transaction, the type, quantity, nature, installation and use of the subject matter, the nature of the defect, the reasonable duty of care, the inspection method and the degree of difficulty, the specific environment, their own skills and other reasonable factors, based on the principle of good faith to judge. In addition, it is necessary to request the glass enterprise as the contractor to make clear and specific the agreement on the quality clause in the processing contract business. If the quality is not clear or only through oral agreement, once both parties have disputes, they will hold their own opinions on the quality standard. If the quality is subject to the sample, attention should be paid to sealing the sample and describing the sample in writing to avoid quality disputes due to the loss or natural damage of the sample. This epidemic is in danger of organic, enterprises now practice good internal work waiting for the flowers to bloom. Many building materials and other processing and manufacturing enterprises, including glass companies, in addition to strictly controlling product quality as always, should also firmly establish the awareness of risk prevention and control and the awareness of the chain of evidence, and give full play to the important role of the law in the whole process of enterprise management and transactions, so as to effectively avoid risks and escort the rapid development of enterprises after the epidemic.

2022-05-07