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2022-04
As one of the most common economic contracts, the contract of sale was affected in many ways during the new crown epidemic. Especially for production and processing enterprises, in terms of raw material procurement, they may face the problems of not being able to purchase sufficient production necessities in time, the price of raw materials has risen sharply, and the production cost has increased significantly, which will cause profits to be compressed or even losses; in terms of sales, Because of the epidemic prevention and control measures in different regions, some product sales, overstock, and price drops, there may also be delays in delivery, failure to do so, or rejection of the other enterprise in breach of contract. This paper only analyzes the determination of force majeure involved in the purchase and sale of production and processing enterprises and makes suggestions on the operation of the legal level. The determination of the force majeure clause under the new crown outbreak in 1.. Since the New Crown epidemic in 2020, discussions have continued about the impact of the New Crown epidemic and force majeure on contract performance. The author believes that the epidemic is not necessarily equivalent to force majeure, the contract under the epidemic, whether it should be performed normally, or the application of the principle of change of circumstances to be changed, or belong to force majeure to be exempted or lifted, need to be defined in the light of the specific circumstances. Here, the author through the positive and negative two cases to briefly explain: Case one In general, unless expressly agreed in the contract, a shortage of raw materials is usually not a case of force majeure claimed by the seller because the seller should have other channels to ensure an adequate supply of raw materials. However, in the context of the new crown epidemic, the cause of the shortage of raw materials may be considered force majeure if the seller has no access to raw materials for reasons other than its own. However, it can also be seen from this case that the impact of the epidemic on the supply of raw materials is claimed to be force majeure, and it needs to be proved that the supply of raw materials is single and indeed affected by the epidemic and there are difficulties in the supply of raw materials. The court will make a comprehensive judgment based on the seller's performance of the contract and the communication between the two parties. It is worth noting that when force majeure is used as a cause of termination, the contract can often be terminated only when the force majeure causes the contract to be completely unfulfilled and the purpose of the contract cannot be achieved. If the contract cannot be performed for a while, the contract can still be performed once the cause of force majeure disappears. At this time, unless one of the parties has evidence to prove that the time factor has an important influence on the realization of the purpose of the contract, the delay in performance will cause the purpose of the contract to be unable to be realized, otherwise it can only produce the effect of deferred performance, but cannot terminate the contract. Case II As can be seen from the above cases, force majeure as an exemption has the legal effect only of exempting matters and liability within the scope of force majeure. If force majeure and the debtor's conduct together constitute the cause of the damage, the liability for the loss shall be divided according to the principle of proportionality in the proportion of the effect of the two on the occurrence of the damage, and the defense of force majeure shall not be supported if it is based on the subjective reasons of the debtor and not affected by force majeure. In addition, there is a situation in which the contract of sale can continue to be performed, but because of the epidemic factors, resulting in the performance of the contract is obviously unfair, the seller can also claim a change of circumstances to request the court or arbitral tribunal to adjust the rights and obligations of the contract. In this regard, the Supreme People's Court issued<关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>The notice has clear provisions, the author will not repeat here. 2. legal operation suggestions (I) Clause Design The new crown epidemic has highlighted the importance of the formulation of force majeure clauses in contracts, and it is recommended that enterprises summarize and revise the force majeure clauses in contracts in a timely manner. The scope and consequences of force majeure can be agreed in the contract, and the risks that may be encountered can be considered and excluded in the force majeure clause, depending on the characteristics of the industry, the business model and the market involved. (II) timely notification When the new crown epidemic affects the performance of the contract, the enterprise shall promptly notify the other party, the content of the notice may include the claim of force majeure, the time, scope and extent of the impact of the epidemic, and what mitigation measures have been taken. It should be noted that the notification is not once and for all. The company should continue to notify the other party of the relevant situation at the corresponding time node, so that the other party can obtain the necessary time to take measures to reduce the loss, otherwise it will expand part of the loss and may still be liable. (III) fixed evidence Enterprises affected by the epidemic shall provide proof within a reasonable period of time, and even if the proof cannot be provided in a timely manner due to force majeure, they shall fix the evidence and provide proof as soon as possible within a reasonable time after the effect of force majeure has been reduced or disappeared. The scope of the form of proof is relatively broad, and the obligation to provide proof is not absolute in law, such as the closure of the city measures and the initiation of a local response and other important events, can be inquired through the relevant channels. It is recommended that enterprises pay attention to the retention of proof documents of force majeure (such as government notices, announcements, etc.), the sending records of notices, the other party's approval of force majeure and measures taken to reduce the impact of force majeure, the enterprise itself due to the impact of the epidemic and its prevention and control measures to stop production and sales or the sharp increase in operating costs and other evidence materials, in a dispute between the two parties in a timely manner to obtain lawyers, legal counsel and other professionals. (IV) positive impairment Enterprises should take timely mitigation measures after the epidemic situation leads to failure to perform or knows that the contract is affected by the epidemic situation, such as timely notifying the other party and related parties to suspend investment in people, money and materials, negotiating to change the delivery method, extending the delivery period, timely handling of vulnerable and consumable subject matter, etc., so as to prevent the loss of the other party and other related parties from expanding and avoid increasing their own responsibilities. (V) classification assessment 1. Comprehensively review the various types of contract documents that are being performed and comprehensively assess the impact of the epidemic, especially on its own ability to perform and the ability of the counterparty to perform. Assess whether to continue to perform, change or terminate the contract in the light of your own business needs and actual conditions, and avoid a one-size-fits-all approach. 2. For contracts to be signed in the near future, full consideration should be given to the performance of the contract by the epidemic and the control of the epidemic, including but not limited to the time of performance, the policy requirements of local governments, the development trend of the epidemic, the nature of the commodity, the purpose of the transaction, and the possible impact. 3. Taking into account the recurrence of the new crown epidemic, it is recommended that the contract signed after the new crown epidemic should clearly agree on the new crown epidemic and its prevention and control measures as force majeure and assess its impact and consequences, and if it is really impossible to assess, a reasonable exemption clause and a relatively flexible agreement change and termination clause should be set. Attachment: Excerpts from Legal Provisions and Guiding Opinions of the Supreme Court the People's Republic of China Civil Code Article 590: "If one of the parties is unable to perform the contract due to force majeure, it shall be exempted from liability in part or in whole according to the effect of force majeure, unless otherwise provided by law." Article 563: "The parties may terminate the contract under any of the following circumstances: (1) the purpose of the contract cannot be achieved due to force majeure". (I) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic 3. properly hear contract dispute cases in accordance with the law. Unless otherwise agreed by the parties, when applying the law, the impact of the epidemic on different regions, different industries and different cases shall be comprehensively considered to accurately grasp the causal relationship between the epidemic or the epidemic prevention and control measures and the failure to perform the contract, and the following rules shall be followed for handling the cases of contract disputes arising from the direct impact of the epidemic or the epidemic prevention and control measures: If the contract cannot be performed as a direct result of the (I) of an epidemic or epidemic prevention and control measures, the provisions of force majeure shall be applied in accordance with the law, and the liability shall be partially or fully exempted according to the extent of the impact of the epidemic or epidemic prevention and control measures. If the parties are responsible for the failure to perform the contract or the expansion of the loss, they shall bear the corresponding liability in accordance with the law. If the parties claim that they have fulfilled their obligation of timely notification due to the epidemic situation or the epidemic prevention and control measures cannot fulfill their contractual obligations, they shall bear the corresponding burden of proof. If the (II) epidemic or epidemic prevention and control measures only lead to difficulties in the performance of the contract, the parties may renegotiate; if they can continue to perform, the people's court shall effectively strengthen the mediation work and actively guide the parties to continue to perform. If the parties request to terminate the contract on the grounds that it is difficult to perform the contract, the people's court shall not support it. If the continued performance of the contract is obviously unfair to a party, and its request to change the period of performance of the contract, the method of performance, the amount of the price, etc., the people's court shall decide whether to support it in the light of the actual circumstances of the case. If, after the contract is changed in accordance with the law, the parties still claim partial or total exemption from liability, the people's court shall not support it. If the purpose of the contract cannot be achieved due to the epidemic or the epidemic prevention and control measures, the people's court shall support the request of the parties to terminate the contract. (II) of the Guiding Opinions of the Supreme People's Court on Several Issues concerning the Proper Trial of Civil Cases Involving the COVID-19 Epidemic Trial of (I) contract cases 1. If the epidemic or epidemic prevention and control measures cause the parties to fail to perform the contract of sale and purchase in accordance with the agreed time limit or the cost of performance increases, the continued performance does not affect the realization of the purpose of the contract, and the parties request the termination of the contract, the people's court shall not support it. If the epidemic situation or epidemic prevention and control measures cause the seller to fail to complete the order or deliver the goods within the agreed time limit, and the buyer's contract purpose cannot be realized by continuing to perform, and the buyer requests to terminate the contract and return the advance payment or deposit that has been paid, the people's court shall support it; if the buyer requests the seller to bear the liability for breach of contract, the people's court shall not support it. 2. If the sales contract can continue to be performed, but the epidemic situation or epidemic prevention and control measures lead to a significant increase in labor, raw materials, logistics and other performance costs, or lead to a substantial price reduction of products, and it is obviously unfair to one party to continue to perform the contract. If the adversely affected party requests to adjust the price, the people's court shall adjust the price according to the actual situation of the case and in accordance with the principle of fairness. If the epidemic or epidemic prevention and control measures cause the seller to fail to deliver in accordance with the agreed time limit, or cause the buyer to fail to pay in accordance with the agreed time limit, and the parties request to change the time limit for performance, the people's court shall, in the light of the actual situation of the case, change the time limit for performance in accordance with the principle of fairness. If the contract has been changed by adjusting the price, changing the time limit for performance, etc., and the parties request the other party to bear the liability for breach of contract, the people's court shall not support it.</关于依法妥善审理涉新冠肺炎疫情民事案件若干问题的指导意见（二）>
2022-04-22
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2022-04
The Status Quo and Negative Effects of 1. Impersonation Registration In recent years, in order to optimize the business environment in the market, the company registration authority has continued to promote the reform of the commercial system. The company registration mostly adopts a formal review system, allowing the shareholders of the company to not sign on the spot, but the entrusted agent to submit the materials on their behalf. The company registration authority will register when the submitted materials are complete and conform to the legal form. The simplification of the company registration system, coupled with the low cost of illegality and other reasons, has led to many cases of being falsely registered as company shareholders, legal representatives and senior executives, and the number of falsely registered cases is on the rise. In this regard, the impersonated person is prone to the following risks: (I) conflict with their real career If the impostor or his close relatives are public officials or engaged in other similar occupations, such personnel are often not allowed to work part-time in other companies. After they are falsely registered as shareholders, legal representatives, or senior executives of other companies, it will directly affect Appointment and removal of their positions. In view of the fact that most of the companies involved in the impostor registration are leather bag companies, if the company fails to make tax declaration according to law, the tax department will list the relevant personnel as abnormal personnel, which will directly lead to the restriction of the impostor's normal operation of the company or tax formalities. (II) creditors claim that shareholders are responsible for making up their capital contributions. Article 22 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "When the company's property is insufficient to pay off the debts, the creditor claims that the shareholders who have not paid their capital contributions, and other shareholders or promoters at the time of the establishment of the company If the company is jointly and severally liable for the company's debts within the scope of unpaid capital contributions, the people's court shall support it in accordance with the law". (III) creditors claim liability for shareholder liquidation obligations Article 18 of the (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates: "Shareholders of a limited liability company, directors and controlling shareholders of a joint stock limited company fail to establish a liquidation group within the statutory time limit to start liquidation, resulting in The company's property is devalued, lost, damaged or lost, and the creditor claims that it is liable for compensation for the company's debts within the scope of the loss caused. The people's court shall support according to law". Analysis on the Difficulties of 2. Solving the Impersonation Registration by Lawsuit In view of the problem of being falsely registered as shareholders, legal representatives and senior executives of the company, some of the impostors choose to take litigation to protect their rights, that is, 1. file a civil lawsuit and request the people's court to confirm that they do not have the qualification of shareholders, or 2. file an administrative lawsuit and request the people's court to cancel the registration administrative act of the company registration authority. If an impostor brings a civil lawsuit, that is, a lawsuit for confirmation of shareholder qualification is filed on the grounds that the intention is not true. Although the defendant cannot provide effective counter-evidence in this case, if the registered company is involved in external debts or other responsibilities, such lawsuits often involve the protection of the reasonable trust interests of bona fide third parties, and the impostor may still bear the corresponding responsibilities of shareholders or senior executives. In addition, even if the court decides that the impersonated person does not have the qualification of shareholder, the company registration authority can only make a change of registration, rather than cancel the registration, which also means that the impersonated person still has the legal qualification of shareholder before, and should still bear the corresponding legal consequences. If an administrative lawsuit is filed by an impostor, the administrative organ claims to cancel the registration on the grounds that the administrative organ has not fulfilled its duty of careful examination when handling the registration. When responding to a lawsuit, the company registration department often submits that it only conducts a formal review of the application materials, and the applicant has promised in writing that the application materials are true and valid. Therefore, unless there are extreme typical situations such as the company registration authority and its staff knowing that the identity of the applicant for registration is not true and submitting false identity information materials, the people's court usually finds that the company registration authority has fulfilled its duty of careful examination, and it is difficult to find the violation of the law and thus revoke the corresponding registration. 3. the way of non-litigation settlement of false registration. In order to solve such problems, the State Administration of Market Supervision and Administration issued the "Guiding Opinions on Revoking the Fraudulent Use of Other People's Identity Information to Obtain Company Registration" (Guo Shi Jian Xin [2019] No. 128) in June 2019. Since then, the Regulations on the Administration of Registration of the People's Republic of China Market Entities and its Implementation Rules, which came into effect on March 1, 2022, have made detailed provisions. (I) legal provisions Article 40 of the Regulations on the Registration of the People's Republic of China Market Entities Where the registration of market entities is obtained by submitting false materials or concealing important facts by other fraudulent means, natural persons, legal persons and other organizations affected by the registration of false market entities may apply to the registration authority for cancellation of the registration of market entities. After accepting the application, the registration authority shall promptly conduct an investigation. If the investigation determines that there is a false market subject registration, the registration authority shall cancel the market subject registration. If the relevant market subjects and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time and registration items of the relevant market subjects to the public through the national enterprise credit information publicity system, and the publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. The person directly responsible for the market subject whose registration has been canceled due to the false market subject registration shall not apply for the market subject registration again within 3 years from the date of cancellation of the market subject registration. The registration authority shall publicize it through the national enterprise credit information publicity system. Detailed Rules for the Implementation of the Regulations on the Administration of Registration of the People's Republic of China Market Entities Article 50 the registration authority may, on the basis of the application of the parties concerned or on its own initiative, investigate the acts suspected of submitting false materials or concealing important facts by other fraudulent means to obtain the registration of market entities. Article 51 Natural persons, legal persons and other organizations affected by false registration may apply to the registration authority for cancellation of the registration of market entities. For false registration suspected of fraudulent use of the identity of a natural person, the fraudulent user shall cooperate with the registration authority to verify the identity information through online or offline channels. If the registration authority of the market subject suspected of false registration is changed, the current registration authority shall be responsible for handling the cancellation of registration, and the original registration authority shall assist in the investigation. Article 52 After receiving the application, the registration authority shall make a decision on whether to accept the application within 3 working days and notify the applicant in writing. Under any of the following circumstances, the registration authority may reject the case: (I) false registration of suspected fraudulent use of the identity of a natural person, and the fraudulent use fails to pass the verification of identity information; (II) the market entity suspected of false registration has been canceled, except for the application for cancellation of registration; (III) other cases of inadmissibility according to law. Article 53 After accepting the application, the registration authority shall complete the investigation within three months and make a timely decision to revoke or not to revoke the registration of market entities. If the situation is complicated, it may be extended for 3 months with the approval of the person in charge of the registration authority. During the investigation period, if the relevant market entities and personnel are unable to contact or refuse to cooperate, the registration authority may publicize the registration time, registration items, and contact information of the registration authority of the suspected false registration market entity to the public through the national enterprise credit information publicity system. The publicity period is 45 days. If the relevant market subject and its interested parties do not raise any objection during the publicity period, the registration authority may cancel the registration of the market subject. Article 56 After the registration authority has made a decision to cancel the registration, it shall publicize it to the public through the national enterprise credit information publicity system. (II) specific recommendations To sum up, the author suggests that after the relevant personnel are found to be falsely registered as shareholders, legal representatives and senior executives of the company, they should give priority to non-litigation to solve the relevant problems. According to the relevant laws and regulations, the author has sorted out the relevant operating procedures: 1. After discovering the fact of being falsely registered, the relevant personnel shall promptly report to the police and submit an application for revocation to the registration authority; 2. The registration authority shall verify the identity information of the impostor, and the impostor shall cooperate with the submission of handwriting identification report, alarm record and other evidence; 3. The registration authority conducts an investigation of the person under investigation, the relevant personnel of the company, the registration agent or the interested party; 4. The registration authority solicits opinions from relevant departments such as public security, taxation, finance, human resources and social security; 5. After 45 days of investigation and identification of relevant facts or publicity, the registration authority may revoke the registration of market entities.
2022-04-22
21
2022-04
Point of View | Crime and Punishment of Epilepsy Patients Driving on the Road
If you are an epileptic, can you drive a car on the road? The answer is no! According to Article 15 of the regulations on the application and use of motor vehicle driver's license issued by the Ministry of public security, those who have organic heart disease, epilepsy, Meniere's disease, vertigo, hysteria, tremor paralysis, mental illness, dementia and neurological diseases affecting physical activities shall not apply for a motor vehicle driver's license. Epilepsy is a driving taboo disease, normally, epilepsy patients can not drive a vehicle on the road, but if an epilepsy patient drives a vehicle on the road, if unfortunately on the way epilepsy seizures, and caused certain harmful consequences, then whether it constitutes a crime, if it constitutes a crime, and how to punish it? Let's look at four cases first. Brief of the case Case one Liu Moumou obtained a U.S. driver's license while studying abroad in 2017. After returning to China, he applied for a driver's license from the traffic police department on May 9, 2018. Since June 2018, Liu Moumou has been to many hospitals for consultation due to multiple short-term amnesia, general convulsions and other symptoms. During this period, he became ill while driving on November 9, 2018, causing the vehicle to lose control and causing a traffic accident. In December 2018, Liu Moumou was diagnosed with epilepsy. Since then, he has taken medication, but he still has seizures until the incident. At about 19:00 on May 16, 2019, Liu Moumou became ill again while driving out, and the vehicle lost control. First, he crashed into the crowd waiting for the signal light on the safety island in the middle of the intersection, and then crashed into two motor vehicles waiting for the signal light in the opposite direction., Resulting in three deaths, one serious injury, five minor injuries, and two minor injuries, three cars, four electric bicycles, a bicycle and municipal transportation facilities were damaged with a value of 125897 yuan. After the accident, Liu Moumou remained in the car that caused the accident. The owner of the car who was hit came forward to remind him to turn off the engine. Liu Moumou did not respond. After that, Liu Moumou gradually became conscious and got off the bus. He called 120 Emergency Center when reminded by others. Case II 1. At about 11 o'clock on December 5, 2009, Li Mougui had an epileptic seizure while driving an off-road vehicle without a license. The vehicle he was driving lost control and collided with three vehicles successively, and then rushed into the sidewalk on the east side of the road. Damaged electric vehicles and protective fences on the roadside. After identification: Wang Moujia and Yue Mou's human body injuries were minor injuries, and Li Mou's human body injuries were minor injuries, causing a total of 44492.90 yuan in direct economic losses. 2. At about 19:00 on August 11, 2011, Li Mougui drove a car without a license and had an epileptic seizure on the highway. The vehicle he was driving lost control and collided with the middle guardrail of the highway. Defendant Li Mougui lost 85290 yuan for the vehicle he was driving and 8800 yuan for the guardrail fee in the middle of the expressway. 3. At about 15:00 on September 28, 2012, Li Mougui had an epileptic seizure while driving a small passenger car without a license. The vehicle he was driving lost control and collided with three vehicles successively, causing damage to the three vehicles to varying degrees. Passengers Zhang and Pu were injured, and Li Chungui himself was slightly injured. The direct economic loss was identified as 11960 yuan. Case three In 1998, Zuo applied for a motor vehicle driver's license with a permitted driving type A. In February 2012, the left army was diagnosed with epilepsy by the hospital. In July of the same year, when the driver's license was reviewed, he concealed his illness, deceived the public security organs, and renewed his driver's license. In January 2014 he was again hospitalized for epilepsy. At about 15:00 on May 1 of the same year, when Zuo Moujun was driving a car (carrying his wife and brother) on the road in the city, he had a sudden seizure of epilepsy, causing the vehicle to crash into pedestrians due to loss of control, resulting in 4 deaths and 8 people. A major traffic accident with varying degrees of injury. Case four At about 20 o'clock on February 28, 2019, Tian Mouhong was driving a small ordinary passenger car. On the way, an epileptic seizure caused the vehicle to lose control. It successively collided with the bicycle in the riding and the car in the driving, and caused the cyclist to be rescued. The invalid death, the co-passengers of the car were injured, and the three cars were damaged. Question 1: Do the above four epilepsy patients have criminal responsibility in the case? Epilepsy is a type of driving contraindicated disease. According to the regulations, people with epilepsy are not allowed to apply for a driver's license, and those who have applied for a driver's license are not allowed to drive a motor vehicle after determining that they have epilepsy, and should apply for cancellation of the driver's license. The driving qualification and driving behavior of patients with driving contraindications are mainly based on the fact that patients cannot control the onset time and consequences of their own diseases autonomously, and driving motor vehicles on the road is highly dangerous to public safety. Therefore, in terms of the ability to identify the criminal responsibility, the perpetrator of the crime began to start driving the vehicle illegally, so the identification of its criminal responsibility should be based on its ability to identify and control the vehicle when it began to drive illegally, and the perpetrator's illness in the process of committing the crime does not affect the identification of its criminal responsibility. In the above four cases, all the actors have been diagnosed as patients with driving contraindication diseases before the crime. They have normal identification and control ability when driving motor vehicles on the road. They have the ability to understand and choose the results of endangering public safety due to their own diseases at any time. Their ability to identify and control will be weakened or lost due to the onset at any time, which will cause high danger to public safety, it is the result of free choice when it violates the driving taboo, and it shall bear the corresponding criminal responsibility for the occurrence of the result. Referee result The above four cases are all from the public cases of Chinese judicial documents. In case one, the court held that Liu Moumou was not allowed to drive a motor vehicle knowing that he had epilepsy, and when a traffic accident had occurred, he drove a motor vehicle on the road. The seizure caused the vehicle to lose control and collide with pedestrians and vehicles, causing three deaths and eight injuries, and the serious consequences of damage to related vehicles and traffic facilities, his behavior constituted the crime of endangering public security by dangerous means. The court sentenced Liu to 13 years' imprisonment after comprehensively considering Liu's surrender, compensation and understanding, and confession. The court in case 2 held that Li mougui, knowing that he was suffering from epilepsy and was not qualified to drive, still drove a motor vehicle three times, causing two minor injuries, one minor injury, direct economic loss of 44492.90 yuan, vehicle loss of 85290 yuan, loss of 8800 yuan of highway intermediate guardrail fee and damage of multiple vehicles, two bus passengers and direct economic loss of 11960 yuan, His behavior is enough to endanger public safety, it has constituted the crime of endangering public security by dangerous means. Considering the circumstances of his confession and compensation, Liu was sentenced to four years' imprisonment. In case 3, the court held that Zuo Moujun violated traffic and transportation management regulations and caused a major traffic accident that caused 4 deaths and 8 injuries. His behavior constituted a traffic accident crime and was sentenced to seven years in prison. In case 4, the procuratorate prosecuted the crime of endangering public security by dangerous means. After trial, the court held that the crime of endangering public security by dangerous means was an intentional crime, and Tian Mouhong did not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, which did not meet the constitutive requirements of the crime. Tian Mouhong violated the traffic and transportation management regulations and caused a major accident that caused the death of one person. He should be identified as a traffic accident crime. Based on his confession and compensation understanding, he was sentenced to one year and six months in prison. Question 2: The same epilepsy patients have a traffic accident while driving on the road. Why are the charges different and the penalties are also quite different. Are there different sentences in the same case, or are the facts of the case really different? From the two charges involved in the analysis. The crime of endangering public safety by dangerous means refers to the act of endangering public safety by using other dangerous methods equivalent to the danger of fire prevention, throwing dangerous substances, breaking water and explosion methods. The legal interest violated by this crime is the safety of the lives and property of the unspecified majority, which belongs to the crime of endangering public security. The crime of causing traffic accidents refers to the act of violating traffic and transportation management laws and regulations, resulting in a major traffic accident, causing serious injury or death, or causing heavy losses to public and private property. The crime also has the characteristics of endangering the unspecified majority. Specifically in the above four cases, the perpetrator knew that he had epilepsy, and he also knew that he was not allowed to drive on the road with epilepsy. That is, the perpetrators in the four cases were aware of the violation of traffic rules. However, the crime of endangering public safety in a dangerous way is an intentional crime, that is, the perpetrator knows that he has epilepsy and drives on the road, which may cause harm to the society, but he still drives on the road and allows the result of endangering the society to occur. The crime requires that the perpetrator is subjectively indirect and intentional. The crime of causing traffic accidents is a crime of negligence. The perpetrator violates traffic rules intentionally. He foresees the possible harmful consequences of doing so, but he is too confident and credulous to avoid it. Therefore, in order to find out the reasons for the different sentences in the above four cases, it is necessary to further analyze whether the subjective guilt of the perpetrator is indirect intentional or overconfident negligence. From the actor's subjective guilt analysis. According to the provisions of articles 14 and 15 of the criminal law of our country, it is an intentional crime to know that one's own behavior will have the result of endangering the society, and hope or allow such result to occur, thus constituting a crime. It is a negligent crime to foresee the possible result of one's own behavior that is harmful to the society. If one does not foresee it due to carelessness, or if one has foreseen it and believes it can be avoided, such a result. Among them, it is difficult to accurately distinguish between the intentional crime of allowing the harmful result to occur (indirect intention) and the negligent crime of credulity to avoid (overconfidence). In terms of cognitive factors, the doer knows that his behavior will cause harm to the society. In terms of volitional factors, the doer does not hope and pursue the social result of his behavior, the main difference is that the former is laissez-faire and the latter is opposed. In case one, Liu, as an adult with a higher education level, has normal cognitive ability. His confession knows that he has epilepsy. When the frequency of onset is high, it is once every two or three days, and when it is low, it is once every ten days. When the onset of the disease will suddenly lose consciousness, sometimes hallucinations, auditory hallucinations, there have been traffic accidents before the incident. Judging from Liu Moumou's confession and previous driving experience, Liu Moumou is not sure about the incidence of his forbidden driving disease and knows that he cannot control the consequences of the disease. He argues that he has a fluke mentality to drive, which does not rule out his laissez-faire mentality of resignation to the consequences of his behavior. In case 2, Li Mougui suffered from epilepsy for many years and could not be cured. He drove on the road without a license for many times, and had three seizures while driving without a license and caused accidents. People with common sense of life and driving experience know that epilepsy is a kind of nervous system seizure disease. The symptoms of epilepsy can be manifested as short-term disturbance of consciousness, and severe as systemic muscle twitching and loss of consciousness, which will cause the patient to lose consciousness and behavior ability for a period of time. Epilepsy is sudden, unpredictable and uncontrollable, and the probability of onset is high before it is completely cured. Patients may get sick at any time when driving a motor vehicle on the road, and once they get sick, they will lose control of the motor vehicle. the result of endangering public safety (dangerous or real harm) will be inevitable. Li Mougui knew that he had frequent seizures, and he had a precedent of seizures on the way before, but he still did not learn a lesson, which shows that he subjectively holds a laissez-faire attitude towards the possible harmful consequences. In the third case, Zuo Moujun concealed epilepsy, deceived the review agency, and renewed the motor vehicle driver's license during the motor vehicle driver's license review, which violated administrative regulations. But it has no precedent for driving while driving, and has been taking anti-epileptic drugs. Therefore, in terms of probability, the possibility of Zuo Moujun's sudden epilepsy while driving is very low, and it is not an administrative illegal act that will cause harmful consequences with a high probability. In addition, Zuo Moujun was hospitalized many times before the incident and has been taking antiepileptic drugs. The treatment has achieved certain results. Combined with the precedent that he has never had an epileptic seizure while driving before, he took his wife and brother on this trip. It can be presumed that Zuo Moujun's opposition to the occurrence of harmful results is both objective reality and customary thinking, and subjectively belongs to the fault of overconfidence. In case 4, Tian Mouhong suffered from epilepsy. After a period of hospitalization before the incident, good results have been achieved. When he was discharged from the hospital, the doctor did not require him to take the medicine on time. But out of caution, Tian Mouhong took the medicine every once in a while for a few days. Before this Tian a red drive has never had a seizure. The prosecutor accused Tian Mouhong of "driving after knowing that he had epilepsy that hindered driving qualifications and stopped taking drugs without authorization", but the court held that the case proved that Tian Mouhong knew that he had epilepsy and drove a motor vehicle without authorization. Insufficient evidence, and then believe that Tian Mouhong does not have the subjective intention to pursue the result of the crime or allow the result of the crime to occur, and does not meet the constitutive elements of the crime of endangering public safety by dangerous methods. A number of major criminal cases have occurred in this case due to the onset of driving contraindications. I would like to remind people suffering from driving taboo diseases not to be lucky and blindly confident. Once a traffic accident occurs, it will eventually harm others and themselves.
2022-04-21
21
2022-04
1. issues raised Affected by multiple factors such as rising raw material prices in the international market, domestic and foreign epidemics, and world energy shortages, the price of building materials has risen sharply, which has a significant impact on the performance of construction contracts? 2. relevant referee views (I) the contract stipulates that "market price fluctuations do not adjust the contract price", the contractor shall consider the market environment of construction materials and commercial risk factors such as price changes when bidding or signing a contract. If the price increase of materials does not exceed the peak market price, the principle of change of circumstances is not applicable, and the risk of material price increase shall be borne by the contractor. Case: Chongqing Construction Engineering Group Co., Ltd. and Chongqing Rongchang District Rongxin Environmental Protection Industry Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5829 Civil Ruling) The court held that the question of whether Article 11.1 of the Special Provisions of the Construction Contract for Construction Projects should be changed. Chongqing Construction Engineering Group believes that in this case, according to the principle of change of circumstances and the relevant provisions of the competent authorities, the part of the price increase of more than 5% should be adjusted to be borne by Rongxin Environmental Protection Company. In the opinion of the Court, Article 11.1 of the Special Terms of the Construction Contract for Construction Projects stipulates that market price fluctuations do not adjust the contract price, I .e. the risk of market price increases is borne by Chongqing Construction Engineering Group. After the contract was signed, the market price did rise due to changes in policy or market environment. However, as a professional and rational construction enterprise, Chongqing Construction Engineering Group submitted a bid to Rongxin Environmental Protection Company after carefully studying all the contents of the bidding documents and comprehensively considering the corresponding commercial risks and cost changes, under the premise of knowing that the project involved in the case is limited to 0.15 billion yuan, it should include the market environment and price changes of building materials as the commercial risk factors that should be considered in whether and how to bid. Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Several Issues is a provision on the principle of change of circumstances in contract law. The objective situation emphasized in this article is that the parties cannot foresee at the time of conclusion of the contract and are not non-commercial risks caused by force majeure. Continued performance will be obviously unfair to one party or fail to realize the purpose of the contract, in this case, the increase in the price of construction materials should be a commercial risk that Chongqing Construction Engineering Group should reasonably foresee when bidding and signing the contract, and the increase did not exceed the peak market price, so the provisions of Article 26 of the (II) of Interpretation of the Supreme People's Court on the Application of Certain Issues shall not apply. (II) the contract stipulates that "the contract price will not be adjusted during the construction period", during the construction process, the price of materials will rise due to the adjustment of the national macro policy, and the relevant government departments notify the construction enterprise to make appropriate compensation with reference to the market price at the time of bidding and the price at the time of contract settlement. The notice is not mandatory and cannot be the basis for breaking through the contract. The risk of price increase shall be borne by the contractor. Case: China 13th Metallurgical Construction Co., Ltd. and Shaanxi Huangyan Expressway Co., Ltd. Construction Contract Dispute (Supreme People's Court [2018] Supreme Court Civil Judgment No. 380) The court held that whether the claim of 4154868 yuan for material and freight adjustment by XIII Metallurgical Company should be supported. As for the part of the appraisal opinion that the loss amount of material and freight adjustment is 4154868 yuan, the 13th Metallurgical Company claims that the price of material and freight will rise during the construction period, which belongs to the situation change stipulated by law and should be adjusted. In this case, relative to the total amount of project funds agreed by the parties in the contract, there is no sufficient evidence to prove that the range of changes in the freight prices of self-purchased steel, fuel and self-purchased materials during the construction period has reached a level that the parties could not foresee at the time of the conclusion of the contract, and does not constitute the Supreme People's Court on the application of<中华人民共和国合同法>Article 26 of the (II) for Interpretation of Certain Issues "After the establishment of the contract, the objective circumstances have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and were not caused by force majeure and did not belong to commercial risks. If the parties request the people's court to modify or terminate the contract, the people's court shall, in accordance with the principle of fairness, and in the light of the actual situation of the case to determine whether to change or lift the circumstances of the change of circumstances. The general terms and conditions of the Contract Agreement signed between Huang Yan Company and Thirteen Metallurgical Company 70.1 stipulate that the fluctuation of labor, mechanical construction and material prices shall not be considered during the execution of the contract, I .e. the contract price shall not be adjusted during the construction period. During the construction of this project, due to the increase in steel prices caused by the adjustment of the national macro policy, the Shaanxi Provincial Department of Communications notified that for the construction in progress signed before the end of May 2003, the construction enterprise can be appropriately compensated according to the unit price of the contract and the actual implementation of the contract, referring to the market price at the time of bidding and the price at the time of contract settlement. On January 23, 2010, Huang Yan Company, in accordance with the notice spirit of Shaanxi Provincial Communications Department, decided at a special meeting of Huang Yan Company to compensate for the difference of 1415287.55 yuan in the price of self-purchased section steel in the HY-8 contract section. The first-instance judgment found that XIII Metallurgical Company could not use the notice as the basis to break through the contract and require Huang Yan Company to bear the loss of material price increases. Therefore, the appeal claimed by the 13th Metallurgical Company for Huang Yan Company to pay 4154868 yuan for materials and freight adjustment cannot be established, and the court will not support it. The agreement of the (III) construction contract on the risk of material price fluctuations during the normal construction period does not apply to the adjustment of material payments during the period of delay caused by the contractor, and the risk of material price increase during the period of delay caused by the contractor shall be borne by the contractor. Case: Erdos Municipal Transportation Bureau and Erdos along the Yellow River High-grade Highway Construction and Development Co., Ltd. (Supreme People's Court [2019] Supreme Law Minshen No. 5628 Civil Ruling) The court held that: whether there is a factual basis for the original court's determination that the Transportation Bureau and the company along the Yellow River are responsible for the increase in the price of construction materials and the increase in costs caused by the delay in the construction period. The original trial found that the construction period was delayed due to the transportation bureau and the company along the Yellow River, and the delay also brought about an increase in the cost of engineering materials of the top five companies. The original trial court found that the transportation bureau and the company along the Yellow River were responsible for the increase in the price and cost of construction materials caused by the delay in the construction period, which is based on facts. In addition, although the Bidding Document provides an agreement on the risk of material price fluctuation during the normal construction period, the agreement does not apply to the adjustment of material payment during the delay of the construction period caused by the Employer. It is obviously against fairness and logic to adjust the expansion of losses caused by unilateral breach of contract by the reasonable risk burden agreement that both parties can expect; the Transportation Bureau and Yanhuang Company have no evidence to prove that they have paid the materials in full to the actual constructor or contractor before the construction period is delayed due to their own reasons. The one-time full payment is not in line with the trading habits of the construction industry. The Transportation Bureau and Yanhuang Company claim that they should not bear the increased cost of materials caused by the delay in the construction period on the grounds that they have already paid the materials, which has no factual basis. (IV) the construction contract stipulates that the settlement shall be based on the facts, and if both the contractor and the contractor are at fault for the extension of the construction period, they shall each bear the fault liability in proportion to the loss of the material increase. Case: Jinan Changxing Construction Group Co., Ltd. and Zibo Yinuo Real Estate Development Co., Ltd. Dispute over Construction Contract (Shandong Higher People's Court [2020] Lu Min Zhong No. 2563 Civil Judgment) The court held that: on the issue of whether the first instance court's determination of the loss of material rise is correct. ...... During the construction of the project involved in the case, Yino Company had the problem of defaulting on the project payment, and Changxing Company also had the problem of insufficient construction personnel and mid-way exit. Both parties were at fault for the increase in materials caused by the delay of the project involved in the case, and the court of first instance found that both parties were each responsible for 50% of the loss of the increase in materials, which was in line with the actual project involved in the case. (V) the construction contract stipulates that the price of materials increases by a certain percentage and can be adjusted according to the facts, if the contractor can provide evidence, the contractor may request the contractor to bear the burden. Case: Dispute over Construction Contract between Shandong Liaojian Group Co., Ltd. and Shandong Liaocheng Zhongjusaida Real Estate Development Co., Ltd. (Shandong Higher People's Court [2014] Lu Min Yizong Zi No. 50 Civil Judgment) The court held that the settlement report submitted by Liaojian Group Company was in accordance with the contract. According to the provisions of Articles 23.2 and 23.3 of the special terms of the contract, the price of construction materials in the contract price involved can be adjusted according to the facts if the price increases by more than 5%. The policy adjustment documents and relevant regulations during the construction period can be applied. In the process of contract performance in 2010 and 2011, labor and material costs increased significantly, and the government made policy adjustments to labor costs. The adjustment of the actual labor and material costs in the settlement report of Liaojian Group Company has a contractual basis as well as a factual basis. Although the bidding documents stipulate that the construction measure fee will be covered in one lump sum and will not be adjusted during settlement, as the labor and material fees stipulated in the contract can be adjusted according to the facts, the increase in labor and material fees directly affects the measure fee. Under the condition that the labor and material fees can be adjusted according to the facts, the measure fee cannot be covered in one lump sum and should be adjusted accordingly during settlement. In the process of contract performance, Zhongju Saida Company subcontracted a large number of projects, the failure to pay the project progress payment in time leads to the extension of the construction period, increasing the measure cost and labor cost; in the case of fundamental changes in the construction market, only the actual adjustment can ensure that the measure fee is not lower than the cost, that is to say, the settlement report adjusts the measure fee, which has factual basis and contract basis. 3. Summary 1, material prices rise is the result of the law of the market, generally does not belong to the situation change. Article 533 of the Civil Code of the People's Republic of China stipulates that "after the establishment of the contract, the basic conditions of the contract have undergone major changes that the parties could not foresee at the time of the conclusion of the contract and do not belong to commercial risks. If the continued performance of the contract is obviously unfair to one of the parties, the adversely affected party may renegotiate with the other party. If the negotiation fails within a reasonable period of time, the parties may request the people's court or the arbitration institution to modify or terminate the contract. The people's court or arbitration institution shall, in the light of the actual circumstances of the case, modify or terminate the contract in accordance with the principle of fairness." The application of this article requires a strict distinction between changes in circumstances and commercial risks, which are inherent in the conduct of commercial activities, such as changes in supply and demand, price increases and decreases that have not yet reached an abnormal level of change, and risks inherent in non-market systems that the parties could not foresee at the time of contracting. The Notice of the Supreme People's Court on the Interpretation of Several Issues Concerning the Correct Application of the the People's Republic of China Contract Law (II) Serving the Overall Work of the Party and the State clearly stipulates that the court should correctly understand and carefully apply the change of situation. If it really needs to be applied in a case, it should be reviewed by the Higher People's Court and reported to the Supreme People's Court for review when necessary. 2. In the case of a commercial risk, the assumption of the risk depends on the agreement of the construction contract and the construction facts. If the price of materials fluctuates during the construction period in a fixed lump sum contract or the contract stipulates that the contract price is not adjusted, and there is no delay in the construction period due to the employer, the risk shall be borne by the contractor; if the construction period is delayed due to the employer and the price of materials rises during the construction period, the contractor shall provide evidence to prove that the risk of material price rising during the construction period delay shall be borne by the employer; if both the employer and the contractor are at fault for the contractor, the risk of material price increase during the delay of the construction period shall be borne by both parties in proportion to the degree of fault, and if the contract price can be adjusted according to the facts after the material price increases as stipulated in the construction contract, the contractor shall provide evidence to claim to the contractor. 4. Risk Alert Our lawyers believe that the construction period of the construction project is long and there are indeed many uncertain factors. Under the current situation that most of the construction contracts are fixed total price contracts or fixed comprehensive unit price contracts, the employer should carefully perform its contractual obligations to avoid the risk of unnecessary losses due to the delay of the construction period caused by its own actions. In the face of the payment of the project funds beyond the contract stipulated by the contractor due to the increase in material prices, it can have a benign communication with the contractor, the Contractor shall fully consider the possible risks in the contract performance during the bidding stage or contract signing stage, and reasonably determine the contract quotation to deal with the risks caused by the increase of material prices during the construction process, during the construction process, the contractor can strengthen the management of visa claims, and actively communicate with the contractor when the price of the main materials rises sharply, and strive to make a supplementary agreement on the sharing of the costs arising from the increase in the price of materials.</中华人民共和国合同法>
2022-04-21
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2022-04
The Standing Committee of Jinan Municipal People's Congress just issued the "Jinan City Property Management Regulations" (hereinafter referred to as the regulations) on March 30, 2022, which will come into force on May 1, 2022. As the saying goes, every family has a difficult book to read. A residential community is composed of every household, especially in the autonomous management and property services of the community, it is difficult to read and do things. The regulations promulgated this time set out "rules" for the autonomous management of the community, and gave a solution to the contradiction between the property service person and the owner. While setting new regulations and breaking difficult problems, property service providers should pay more attention to the provisions of the regulations on community management regulations and rules of procedure of the owners' assembly, so as to avoid omissions in the community management regulations and rules of procedure of the owners' assembly, which will affect the signing of property service contracts and generate business risks for property service providers. The principle of autonomous management of 1. communities should be reflected in the rules of procedure for the decisions of the owners' assembly and need not be regulated in the interim management statute or management statute. Paragraph 6 of Article 22 of the regulations stipulates that whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the temporary management statute or the management statute. The author believes that there are the following problems: Statistics on the number of (I) voting rights are not matters stipulated in the interim management statute or management statute. According to Article 17 of the State Council's "Property Management Regulations", "The management regulations shall have an impact on the use, maintenance and management of the property concerned, the common interests of the owners, and the obligations that the owners shall perform, the responsibilities and other matters that should be undertaken in violation of the management regulations shall be agreed in accordance with the law", Article 18 "The rules of procedure of the owners' meeting shall stipulate the discussion methods, voting procedures, the composition of the owners' committee and the term of office of the members of the owners' meeting" and Article 22 "The construction unit shall formulate temporary management regulations before selling the property to use, maintain and manage the property and the common interests of the owners, the obligations that the owners should perform, the responsibilities that should be assumed in violation of the provisional management statute and other matters shall be agreed upon in accordance with the law, and whether the voting rights are included in the majority of the votes that have been voted shall fall within the scope of the adjustment of the rules of procedure of the owners' meeting, rather than by the provisional management statute or the management statute. At the same time, the "Property Management Regulations" did not make corresponding provisions on "voting rights statistics. The (II) is inconsistent with the "Guiding Rules for Owners' Assembly and Owners' Committee" issued by the Ministry of Housing and Urban-Rural Development [2009] No. 274. The second paragraph of Article 26 of the "Guiding Rules for the Owners' Assembly and the Owners' Committee" stipulates that "Whether the voting rights of the owners who have not participated in the voting can be included in the majority of the voted votes shall be stipulated by the management regulations or the rules of procedure of the owners' assembly." This is obviously a general clause, but it is still valid at present and does not violate the State Council's "Property Management Regulations." The (III) "Shandong Province Property Management Regulations" was revised on December 3, 2021, and directly deleted the provisions on voting rights statistics. The second paragraph of Article 34 of the original "Shandong Province Property Management Regulations" implemented on May 1, 2009 once stipulated that "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted shall be stipulated by the management statute or the temporary management statute". However, after the regulation was revised on December 3, 2021, it directly deleted "whether the voting rights of owners who do not participate in voting are included in the majority of votes already voted, provided for by the Management Statute or the Interim Management Statute". (IV) of whether to provide for "voting rights statistics", the practice varies from place to place, but there is no provision for "by the interim management statute or management statute". Article 278 of the Civil Code clearly stipulates the legal proportion of owners' participation in voting on matters decided jointly, and does not stipulate the statistics of voting rights. Compared with the property management regulations in Beijing, Shanghai, Guangzhou, Shenzhen and other places, there is no provision for voting rights statistics. Regarding the provisions of voting rights statistics, the author believes that its role is to ensure the smooth progress of the voting procedures of the owners' meeting, and to prevent the occurrence of matters that must be voted by the owners' meeting but do not reach the statutory voting ratio, and fall into a long-term dilemma, which harms the owners. rights and interests. However, it is also clear that it is necessary for localities to take into account local conditions and to be regulated in detail by local regulations. In summary, the author believes that appropriate additions and adjustments should be made to improve the regulations: 1. In order to ensure that the Jinan property Management regulations comply with the relevant provisions of the the People's Republic of China Civil Code, the property Management regulations, the guiding rules of the owners' Congress and the owners' Committee and the property Management regulations of Shandong Province, it is suggested that the sixth paragraph of Article 22 of the regulations be amended as follows: if the meeting of the owners' assembly involves matters jointly decided by the owners, the voting votes shall be delivered to each owner. The voting shall be conducted in accordance with the provisions of Articles 18, 19 and 20 of these Regulations. Whether the voting rights of the owners who do not participate in the voting shall be included in the majority of votes voted shall be stipulated by the rules of procedure of the owners' meeting. 2. For residential communities that have not established a general meeting of owners, the property service providers in the early stage strengthened their contacts with sub-district offices, neighborhood committees, and construction units, and put forward reasonable suggestions for the draft temporary management regulations of the community and the draft rules of procedure of the general meeting of owners of the community, and added "voting rights" "Statistics" clause. 3, for the establishment of the owners' meeting of the residential community, see the selected property service personnel should focus on understanding the community management regulations and the rules of procedure of the owners' meeting. For those who do not agree on the "voting rights statistics" clause, put forward reasonable suggestions to the owners' committee, increase the topic content of the owners' meeting, improve the rules of procedure of the owners' meeting "voting rights statistics", and vote whether to agree with the property service provider to provide services to the community.
2022-04-18
18
2022-04
Viewpoint | Effective Defense ---- Doubts not to prosecute
Doubt not to prosecute, also known as insufficient evidence not to prosecute. In a fraud case handled by the author, the procuratorial organ strictly controlled the evidence and did not prosecute the case for insufficient evidence-that is, no prosecution in doubt. 1. brief After investigation, it was found that 11 people, including Liu Moumou and Wang Moumou, premeditated to purchase waste aluminum plates from a certain color printing company. They cheated the color printing company by tampering with the weighbridge and agreed to share the stolen money equally among 11 people. On December 20, 2019, 11 people including Liu Moumou drove to the vicinity of the color printing company, and Liu Moumou went to the color printing company to discuss the purchase of waste aluminum plates. After negotiation, the purchase price was 18000 yuan per ton. The next day, Liu Moumou came to pull the goods. Liu Moumou and his three men went to the weighing place near the color printing company and agreed with the weighbridge owner to give the weighbridge owner 4000 yuan a benefit fee. The weighbridge owner agreed that they should install cheating equipment on the weighbridge electronic display. The next day to the color printing company after loading to the weighbridge weighing. When weighing, Wang Moumou and others used the remote control to control the electronic display of the weighbridge, weighing 8 tons, and should pay 144000 yuan for the goods. Liu Moumou and others asked for cash payment. The color printing company asked for the goods to be deposited into the company's account. The company accountant accompanied Liu Moumou and others to deposit in the bank. During this period, Liu Moumou and others urged the truck driver to leave as soon as possible. The truck driver drove not far away and was intercepted by the color printing company. At 13: 00 on the same day, the color printing company took the truck driver to the weighing place to weigh. Wang mou used the remote controller to control the weighing scale again, and the weighing was still about 8 tons. after the weighing was completed, the color printing company still refused to let the truck driver drive away. Liu and others worried about the incident fled the scene. On the third day, it was re-weighed, showing that the weight of the goods in the car was 24.44 tons, and the difference between the two days was 16.44 tons. According to the price determination center, the market recovery price of waste aluminum plates was 9000 yuan per ton. Therefore, it was determined that the amount of fraud by Liu Moumou and others was 75960 yuan. According to the personnel of the color printing company, Liu Moumou and others bought waste aluminum plates from the color printing company before. Because Liu Moumou and others were suspected of cheating in weighing, the color printing company has been trying to settle accounts with Liu Moumou and others. This time Liu Moumou and others contacted again. The color printing company wanted to quietly use this transaction to expose Liu Moumou and others and recover the losses. Therefore, the above transaction process was established. After the case, Liu and others reached a compensation understanding agreement with the injured unit with several times the amount of compensation involved. To sum up, it is determined that the behavior of 11 people including Liu Moumou has violated Article 266 of the the People's Republic of China Criminal Law, suspected of fraud, and transferred for review and prosecution. 2. processing results Liu Moumou, who was not prosecuted, did not meet the conditions for prosecution. According to the provisions of Article 175, paragraph 4, of the Criminal Procedure Law, it was decided not to prosecute Liu Moumou. 3. case analysis The defender pointed out that the "Prosecution Opinion" found that 11 people including Liu Moumou had defrauded 75960 yuan, and the facts of the crime amount were unclear and the evidence was insufficient. The weight of the goods involved is in doubt, and there is great uncertainty in the determination of the amount of crime. The investigation organ in this case weighed the difference between December 21, 2019 and December 22, 2019 as the number of crimes. However, the evidence in the volume cannot prove that the goods involved in the case maintained identity and fixity in multiple weighings, and cannot guarantee the certainty of the calculation of the amount involved when the weight difference cannot be confirmed to be certain. The testimony of the employees of the color printing company and the truck driver both confirmed that after the truck driver was intercepted and returned to the color printing company on December 21, 2019, the truck driver stopped for dinner, during which the vehicle involved was placed in the courtyard of the color printing company, and the rear truck driver parked the vehicle in front of the office building of the color printing company under the supervision of the staff of the color printing company. until the morning of December 22, 2019, 2019, the vehicle and goods involved were weighed for the third time. Therefore, from December 21, 2019 when the truck driver went out to eat to the morning of December 22, 2019, the vehicles and goods involved in the case were parked in the hospital of the victimized company and were left unattended. The color printing company did not provide surveillance video to confirm the storage of the vehicles and goods involved in the case. Although two employees confirmed that the goods in the vehicle had not been moved, there was no objective evidence to support it. In addition, the two witnesses are employees of the victimized company and have an interest in the case. Their testimony is highly subjective, and their objectivity and authenticity are in doubt. Therefore, the facts of the determination of the amount of the crime are unclear and the evidence is insufficient. If reasonable doubt cannot be ruled out, the evidence is in doubt, and an explanation should be made in favor of the defendant. It is suggested that Liu Moumou should not be prosecuted. 4. the legal provisions of "no prosecution in doubt" Doubt not to prosecute means that the procuratorial organ may make a decision not to prosecute if it still considers that the evidence is insufficient and does not meet the conditions for prosecution after supplementary investigation. Article 175, paragraph 4, of the Criminal procedure Law stipulates that if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution for the second supplementary investigation, it shall make a decision not to prosecute. After two supplementary investigations, the case has one of the following circumstances. If it cannot be determined that the criminal suspect constitutes a crime and needs to be investigated for criminal responsibility, it is insufficient evidence and does not meet the conditions for prosecution. 1. The evidence based on which the verdict is in doubt and cannot be verified. 2. The facts of the constituent elements of the crime lack the necessary evidence to prove it. Contradictions between the evidences cannot be reasonably excluded. 4. The conclusion based on the evidence has other possibilities and cannot be ruled out.
2022-04-18
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2022-04
How to identify the use of obscene videos to solicit customers to sell products?
Brief of the case During the period from September 26, 2017 to March 27, 2018, in order to promote the male health products operated by his WeChat circle of friends, Zhang Moumou successively established WeChat chat groups named "XXX Leisure Entertainment Group 1 (Group Plus Group Leader)", "XXX Leisure Entertainment Group 2 (Group Plus Group Leader)" and "XXX Leisure Entertainment Group 3 Group Plus Group Leader/No Words. Later, in order to increase his popularity, Zhang Moumou forwarded obscene videos and links in the group. After identification, 400 videos forwarded by Zhang moumou in "group 1 of so-and-so leisure entertainment (group 1 plus group owner)" are obscene articles, 344 videos forwarded in "group 2 of so-and-so leisure entertainment (group 2 plus group owner)" are obscene articles, and 341 videos forwarded in "group 3 of so-and-so leisure entertainment plus group owner/forbidden words" are obscene articles. After the case, the procuratorate of first instance prosecuted the case to the court on suspicion of spreading obscene materials for profit. After trial, the court of first instance held that Zhang was not subjectively profit-making, so his behavior did not constitute the crime of spreading obscene materials for profit, but constituted the crime of spreading obscene materials. Zhang was sentenced to one year and six months in prison. After the judgment of the first instance, the procuratorate filed a protest, believing that the purpose of profit-making required by the crime of spreading obscene articles includes not only direct profit-making through the dissemination of obscene articles themselves, but also indirect profit-making by means of the dissemination of obscene articles. Therefore, the defendant Zhang Qiuying subjectively has the purpose of making profits and should be recognized as the crime of spreading obscene articles for profit. The original judgment made improper restrictive interpretation of "profit, it is wrong to apply the law and the sentence is too light. The facts and evidence found by the court of second instance were the same as those of the court of first instance, but it adopted the protest opinion of the procuratorate and commuted Zhang to the crime of spreading obscene materials for profit, sentenced to three years' imprisonment and fined 5000 yuan. Focus Issues Zhang Moumou's use of obscene materials to attract customers and promote products can be recognized as the crime of spreading obscene materials for profit. legal analysis The main difference between the crime of spreading obscene materials for profit and the crime of spreading obscene materials is that the former requires the purpose of making profits, while the latter does not. In this case, in order to attract customers and sell male health products, Zhang Moumou posted obscene video links in the WeChat group. Regarding this behavior of using obscene materials to promote legal products, whether it constitutes the crime of spreading obscene materials for profit or the crime of spreading obscene materials, in judicial practice There is controversy. In the cases retrieved by the author, some courts have determined that this kind of behavior belongs to commercial drainage, and the intention is to increase attention. The act of spreading obscene videos does not bring benefits to the perpetrator, so it does not meet the crime of spreading obscene materials for profit. The standard of "profit-making. Judgments that hold this view are: jiang mouyang's case of spreading obscene articles [case number (2019) Zhejiang 0624 punishment no 211], Xiang mourong's case of spreading obscene articles [case number (2018) Zhejiang 0523 punishment no 191], Xie moujia, Liu mou's case of spreading obscene articles [case number (2017) Ji 1181 punishment no 71], Jiang moujuan's case of spreading obscene articles [case number (2018) Zhejiang 0881 no. 238 at the beginning of punishment]]. However, some courts hold that the "profit-making purpose" in the crime of spreading obscene materials includes not only the direct profit by spreading obscene materials, but also the indirect profit by means of spreading obscene materials. The dissemination of obscene materials by the perpetrator is a means to increase product attention and promote products. It is an indirect profit by means of disseminating obscene materials. In addition to this view held by the court of second instance in this case, Zhang moujuan, Zhang mouzhu and others also held this view in the case of making, copying, publishing, selling and spreading obscene articles for profit [case number (2019) zhe 10 punishment final 753]. The author believes that the actor uses obscene materials to attract customers and then sell products, which can not be regarded as the "profit-making" plot in the crime of spreading obscene materials for profit, but can only constitute the crime of spreading obscene materials. The specific reasons are as follows: The use of obscene videos by 1. to attract customers and then sell products for profit does not belong to the situation of using the Internet to spread obscene materials for profit as stipulated in legislation and judicial interpretations. The crime of obscene materials corrupts the social atmosphere, corrupts people's soul, and induces other crimes. Therefore, the criminal law of our country has been increasing its crackdown. Article 170 of the 1979 Criminal Law stipulates that "whoever produces or sells pornographic books or paintings for the purpose of profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined". At that time, the crime of this article was the crime of making and selling obscene books and paintings. The law did not provide for the production and sale of obscene materials other than obscene books and paintings, and other acts related to obscene materials. Article 2 of the Decision of the Standing Committee of the National People's Congress on Punishing Criminals Who Smuggling, Producing, Selling or Disseminating Obscene Articles (hereinafter referred to as the Decision) of December 28, 1990 stipulates: Whoever, for the purpose of making profits, ...... sells obscene articles shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be sentenced to a fine or confiscation of property. Article 8 of the "Decision" defines obscene materials as "books, periodicals, films, video tapes, audio tapes, pictures and other obscene materials that specifically depict sexual behavior or explicitly promote pornography". The "Decision" changed the object of the crime of making and selling pornographic books and paintings in Article 170 of the 1979 Criminal Law from the original pornographic books and paintings to obscene books, films, video tapes, audio tapes, pictures or other obscene materials. The statutory maximum penalty has also been increased from the original three-year fixed-term imprisonment to life imprisonment, and the provisions on unit crimes have been increased, which has greatly increased the punishment for such crimes. On the basis of the comprehensive absorption of the "Decision" in the Criminal Law of 1997, a crime of organizing obscene performances was added, which also demonstrated the determination of our government to punish the crime of obscene materials. However, in 1997, the criminal law did not specify the standard of "profit-making" when amending the criminal object and sentence of the crime of spreading obscene materials for profit. Until 2004, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Using the Internet, Mobile Communication Terminals, and Voice Stations to Make, Copy, Publish, Sell, and Disseminate Obscene Electronic Information" (hereinafter referred to as "Interpretation"). Article 1 of the "Interpretation" clearly stipulates: "For the purpose of making profits, those who use the Internet or mobile communication terminals to produce, copy, publish, sell and disseminate obscene electronic information, publish, sell and disseminate obscene electronic information by means of membership system, with more than 200 registered members, or use obscene electronic information to collect advertising fees, membership registration fees or other fees, with illegal gains of more than 10000 yuan, Convicted and punished for the crime of making, copying, publishing, selling or disseminating obscene articles for profit." This provision confirms at the level of judicial interpretation that the dissemination of obscene electronic information for profit includes both direct and indirect profit-making. Among them, direct profit-making means that as long as the perpetrator completes the crime of spreading obscene materials, he can directly obtain illegal profits. The specific manifestations are as follows: first, the perpetrator directly disseminates obscene electronic information through the website to obtain high network fees or short message fees; second, the user registers to join the obscene website and becomes a member through payment to watch or obtain obscene information. Indirect profit-making means that after the perpetrator has completed the criminal act of spreading obscene materials, it is necessary for the perpetrator or a third party to carry out other acts in order to obtain profits. Indirect profit-making is a newer and more popular way of making profits, mainly by providing free obscene information files to attract network users, increase the click-through rate of the website, and improve the popularity of the website, so as to attract advertisers and obtain high advertising fees. Different from the traditional direct profit-making method, the benefits obtained by indirect profit-making do not come directly from obscene materials, but from commercial advertising revenue paid by third parties. The spread of obscene materials plays a role in promoting the generation of benefits. In this case, Zhang Moumou posted obscene video links in multiple WeChat groups he formed, with the intention of increasing popularity and increasing attention to the male health products he sold, thereby creating business opportunities for the sale of legal products and increasing the probability of transactions. The behavior itself did not directly charge the members of the group, nor did it earn high advertising fees. The key to Zhang's profit is the profit from the sale of male health products, which is obviously different from the profit-making method identified in the 2004 interpretation. 2., according to the principle of adaptation of crime, responsibility and punishment, Zhang's behavior should not be identified as the crime of spreading obscene materials for profit. According to the provisions of Article 364 of the Criminal Law, those who spread obscene materials shall be sentenced to a maximum of two years' imprisonment without a fine. As for the crime of spreading obscene materials for profit, because it has the subjective purpose of "making profits", the social harmfulness of its behavior is obviously greater than that of simple communication, and the criminal law has obviously cracked down on it. According to the provisions of Article 363 of the Criminal Law, the legal maximum penalty for the crime of spreading obscene materials for profit can be up to life imprisonment, and at the same time a fine or confiscation of property. It can be seen that whether a certain act of spreading obscene materials can be recognized as having a profit-making purpose becomes the key to determine what kind of crime and what kind of legal punishment is applicable. In this case, Zhang Moumou's use of obscene materials to solicit customers to sell products does not belong to the profit-making situation expressly stipulated in the 2004 Interpretation. Whether it can be recognized as other indirect profit-making methods requires the judge to conduct justice on the "profit-making" plot. Interpretation. According to the requirements of the principle of adaptation of crime and punishment, when we interpret the terms of a crime, we need to consider the statutory penalty stipulated in the law and the severity of the sentence that may eventually be pronounced according to this law, so that the conclusion of the interpretation conforms to the principle of adaptation of crime and punishment. The crime of spreading obscene materials for profit is only because it needs to be "for profit" in the constituent elements, and the statutory penalty is far more important than the crime of spreading obscene materials. For this reason, we should strictly interpret the "profit-making" plot, so as to exclude those minor acts of spreading obscene materials for indirect profit from the crime. The modesty of criminal law is one of its fundamental principles, and penalties can only be used if they are forced to do so, and those who can use lighter penalties should not be sentenced to heavier penalties. Judging from the provisions of the "Interpretation" in 2004, the "profit-making" of the dissemination of obscene materials on the Internet mainly includes two ways: directly charging service fees for the dissemination of obscene materials, and indirectly earning high advertising fees through websites or web pages. Either way, the interests obtained by the perpetrator come from the obscene electronic information or the act of spreading obscene electronic information itself. There is a direct and inevitable causal relationship between the way of making profits and the act of spreading obscene electronic information. In this case, Zhang Moumou, as a micro-trader, set up a WeChat group to continuously add people to the group and publish obscene video links in the WeChat group for group members to browse. The purpose is to expand the audience of the goods sold, increase trading opportunities and increase the sales volume of the goods. In other words, Zhang's publication of obscene materials in WeChat groups does not necessarily lead to an increase in the sales of male health products he sells. Zhang's final benefit comes from the male health products sold, not the obscene materials themselves or the act of spreading obscene materials. There is no direct and inevitable causal relationship between this profit-making method and the act of spreading obscene materials. In addition, in the 1. second instance of this case, the public prosecution organ did not provide evidence to confirm Zhang's actual profit. However, Zhang Moumou used obscene materials in the WeChat group to solicit customers to sell products. The court of first instance found that it constituted the crime of spreading obscene materials and sentenced him to one year and six months. The court of second instance adopted the protest opinion of the procuratorate and held that it constituted the crime of spreading obscene materials for profit, and sentenced Zhang to three years' imprisonment and a fine of 5000 yuan. The different determinations of the same facts by the court of first and second instance made Zhang's sentence very different, which obviously violated the principle of adaptation of crime, responsibility and punishment and the modesty of criminal law. Therefore, the author believes that in the case of Zhang Moumou using obscene videos to solicit customers to promote products, the court of first instance determined that the behavior only constituted the crime of spreading obscene materials. The facts were found to be correct and the applicable law was accurate. Zhang Moumou's judgment on the court of first instance It is also recognized. The court of second instance adopted the protest opinion of the procuratorate to change the crime, believing that Zhang's behavior was an indirect profit-making situation, and then found him guilty of the crime of spreading obscene materials for profit, and sentenced him to three years' imprisonment and a fine of 5000 yuan. The judgment thinking and determination logic of the court of second instance are obviously contrary to the spirit of the 2004 Interpretation, and also violate the principle of consistency of crime, responsibility and punishment and the principle of modesty of punishment, which is an error in the application of law.
2022-04-18
16
2022-04
Introduction The "Jinan City Property Management Regulations" was adopted by the 25th meeting of the Standing Committee of the 17th People's Congress of Jinan City on February 24, 2022, and was approved by the 13th Shandong Province on March 30, 2022 Approved at the 34th meeting of the Standing Committee of the People's Congress, it has now been promulgated and will come into force on May 1, 2022. The "Jinan City Property Management Regulations" (hereinafter referred to as the "Regulations") is not a sewing and mending of the "Jinan City Property Management Measures" (hereinafter referred to as the "Measures"), but in the "the People's Republic of China Civil Code" and the State Council "Property Management Regulations" Under the guidance of the "Shandong Province Property Management Regulations", combined with the actual situation of Jinan City, a new regulation has been made for the property management of Jinan City. The "Regulations" have strong operability and respond to many problems encountered in the previous property management practice. The highlights of the "Regulations" can be briefly summarized as "nine more": 1., the establishment process of the industry committee is more specific. 2. to improve the pre-and after-sales service system. The 3. is more standardized on the collection of property fees. 4. pay more attention to the privacy protection of the owners 5. transition and convergence between the old and new properties is smoother. 6. prohibitions on property use are more detailed 7. management of garbage classification is more stringent 8. management of house decoration more clearly 9. more comprehensive management of parking spaces (garages) The specific interpretation is as follows: 1., the establishment process of the industry committee is more specific. Regarding the establishment process of the owners' meeting and the owners' committee, the "Regulations" stipulate that the owners shall first apply for the establishment of the owners' meeting, and then the subdistrict office shall establish the owners' meeting preparatory group, and then establish the owners' meeting, and finally establish the owners' committee. Specifically, in a property management area, the area of the exclusive part that has been delivered to the owner accounts for more than 50%; the number of owners who have been delivered accounts for more than 50%; two years have passed since the date of delivery of the first set of property to the owner and the owner has been delivered If the number of owners accounts for more than 25%, the owner or the construction unit may apply to the sub-district office or the town people's government for the establishment of the owners. The subdistrict office (township people's government) shall be responsible for organizing and guiding the establishment of the preparatory group for the first owners' meeting within 60 days from the date of receiving the written application from the owners for the preparation of the owners' meeting. The leader of the preparatory group shall be appointed by the sub district office and the town people's government, and the other members shall be composed of representatives of the owners, residents' committees, construction units and early stage property service personnel, among which the owners' representatives shall not be less than 1/2 of the total number of the preparatory group. If the community encounters "the conditions for the establishment of the owners' assembly, the owners' assembly meeting has been organized twice but the owners' committee has not been elected; the owners' committee needs to be re-elected due to one of the circumstances such as the expiration of the term of office or the vacancy of members, or being dismissed, but the new owners' committee cannot be elected after being organized and guided by the sub-district office and the town people's government twice, the temporary property management committee shall be established by the sub-district office and the town people's government. the term of office of the provisional estate management committee shall not exceed two years. During the term of office, at least one meeting of the owners' assembly shall be organized every year to promote the establishment of the owners' assembly and elect the owners' committee. If the establishment of the owners' assembly or the election of the owners' committee is not promoted at the expiration of the time limit, the street office and the town people's government shall re-establish the temporary property management committee. Refer to Articles 14 to 45 of the Regulations. 2. to improve the pre-and after-sales service system. In real life, due to the problems left over from real estate development, such as housing quality warranty, transfer of water, electricity and heating facilities, defects in supporting facilities and equipment in the property service area, and non-standard property inspection, many incidents of collective rights protection of owners have been triggered, which not only damages the legitimate rights and interests of owners, but also brings a lot of burden to social governance. In view of the above situation, the Regulations are divided into registration in property management areas. Preliminary property service personnel bidding filing and bidding activities supervision; Preliminary property service contract filing; Determination of the charging standard for preliminary property management fees; The formulation of temporary property management regulations in the early stage; Clear provisions have been made on the inspection of property undertaking, the transfer of property service rooms and data, the transfer of water, electricity and heating facilities, and the establishment and improvement of after-sales maintenance system for newly-built properties. Through the complete system remodeling and design, the pre-service system has been improved and the after-sales service system has been established. Among them, for the after-sales service system, the regulations specifically stipulate that the construction unit should set up a special housing after-sales service center in the property management area to publicize the name of the maintenance unit, the maintenance contact person and the maintenance telephone number, which is used to deal with the problems left over from the construction and accept the owner's repair application, and bear the property warranty responsibility in accordance with the relevant provisions of the state, province and city. The construction unit shall give a reply within three days from the date of receiving the warranty claim, and complete the maintenance within 30 days. At the same time, in order to ensure the actual operation of the after-sales maintenance service system and ensure that the relevant rights and interests of the owners are protected, the Regulations also stipulate that if the construction unit fails to perform the warranty obligations in time during the quality warranty period, the owner has the right to report to the city, district/county housing And the competent department of urban and rural construction can also file a lawsuit in the people's court. Refer to Articles 10, 11, 46, 47, 48, 49, 50, 51 and 79 of the Regulations. The 3. is more standardized on the collection of property fees. In the past, when some property service providers collected property fees, they often used methods such as "cutting off water and electricity" and "restricting the access of owners and their vehicles" to collect them, which caused widespread dissatisfaction and opposition from owners. In this regard, the "Regulations" clearly prohibit property service providers from using methods such as interrupting water supply, power supply, gas supply, heating, or restricting the entry and exit of owners and their vehicles to collect property fees. For property service providers who violate this regulation and collect property fees in the aforementioned manner, they shall be ordered to make corrections within a time limit and be fined not less than 10,000 yuan but not more than 50,000 yuan. At the same time, in order to ensure that property service providers normally collect property fees to carry out related property services, the "Regulations" stipulate that owners should pay property fees in full and on time in accordance with the payment methods and standards agreed in the property service contract. If the owner fails to pay the property fee within the time limit, the property service provider may urge him to pay within a reasonable period of time; if he refuses to pay, the property service provider may apply for arbitration or file a lawsuit in accordance with the law. Refer to Articles 57, 62 and 88 of the Regulations. 4. pay more attention to the privacy protection of the owners At present, more and more communities promote information and intelligent management, and use new technologies to carry out property service related activities. Such as the collection of the owner's face, fingerprints and other biometric information as a means of providing property services, but the risk of the owner's information being leaked and resold has also become a problem that has to be faced. For the purpose of protecting the personal information of the owners, the regulations clearly stipulate that the property service providers can use information and intelligent technology to carry out property service related activities on the premise of ensuring the informed consent of the owners, but they shall not use biometric technologies such as face recognition and fingerprint as the only service means. At the same time, the Regulations also clearly stipulate that property service providers shall not illegally collect, use, transmit, or buy or sell the personal information of the owners obtained in the property service activities, and when the service is terminated and withdrawn, they shall not refuse to hand over the archives and materials shared by the owners. Items, funds, etc. The regulations for violations of the above provisions are also clearly reflected in the "Regulations", clarifying the legal responsibility for violations of the above provisions, which is conducive to the protection of the privacy and personal information of the owners. The Regulations stipulate that misappropriating, embezzling, or disposing of the owners' common property without authorization, tampering with, concealing, or destroying the documents and articles in custody, illegally collecting, using, transmitting, buying and selling the owners' personal information obtained in the property service activities, or infringing on the legitimate rights and interests of the owners, Those who cause losses to the owners shall bear the corresponding liability for compensation; if a crime is constituted, criminal responsibility shall be investigated according to law. Refer to Articles 57, 61 and 91 of the Regulations. 5. transition and convergence between the old and new properties is smoother. In real life, the handover between the old and new properties is often accompanied by contradictions and conflicts. The old properties are unwilling to withdraw and refuse to handle the handover. Problems still exist such as the entry of new properties is blocked and property services cannot be carried out. In addition to stipulating and improving the handover process of property service projects, the current "Regulations" also specify that the original property shall not refuse to handle the handover on the grounds that the owner owes the property fee or disagrees with the joint decision of the owner, and shall not obstruct, interfere or hinder the newly selected property service personnel according to law from providing services for any reason. In the face of the situation that the original property ignores the above provisions and refuses to withdraw from the site, the owners' committee or the owner may report to the sub district office, the town people's government, the district/county housing and urban and rural construction department, request assistance from the public security organ of the jurisdiction or file a lawsuit with the people's court according to law, so as to safeguard their relevant rights and interests. At the same time, the "Regulations" also innovatively introduced "emergency property service personnel" to deal with the sudden loss of management caused by the property service personnel terminating the property service without authorization in violation of the contract, and to protect the basic life of the owners. When the state of loss of management actually occurs, the sub-district office and the town people's government shall organize and determine emergency property service personnel to provide emergency services such as garbage removal and elevator operation to maintain the basic living services of the owners. During the emergency property service period, the sub-district office and the town people's government shall organize the owners to jointly decide to select and hire new property service personnel, and at the same time coordinate the work handover between the new property service personnel and the emergency property service personnel. Refer to Articles 64, 65 and 66 of the Regulations. 6. prohibitions on property use are more detailed In the process of using the property, it is inevitable that some owners, property users or property service providers will not abide by the provisions of laws, regulations and rules and the (temporary) management regulations, thus disturbing the order of the property management area and interfering with the normal life of others. The original "Measures" only stipulated that unauthorized reconstruction and occupation of public parts are prohibited. Damage to the load-bearing structure of the house; Illegal construction of buildings and structures and other acts that have a significant adverse impact on the property management area, but ignore such acts as pets and noise disturbing neighbors; Parking at will in public areas; Private wire charging for electric vehicles and other problems that are very common in life but obviously interfere with the normal life of others. According to the actual problems encountered in Jinan's property management, the current "Regulations" add that it is strictly prohibited to throw articles from buildings (structures). Raising animals to interfere with the normal life of others; Noise from social life interferes with the normal life of others; Parking motorcycles, electric vehicles, bicycles or private wires to charge electric vehicles in shared corridors, hallways, stairwells, corridors, safety exits and other locations. At the same time, the Regulations clarify the responsible departments and units for handling the above-mentioned situations, establish a complaint and report acceptance system, and publish the complaint telephone number in the property management area, and promptly accept and investigate and deal with complaints and reports. Any organization or individual has the right to complain about this. Report. On the whole, the "Regulations" are more specific and closer to reality in the prohibition of property use. At the same time, it clarifies the responsible units for relevant situations, which is conducive to ensuring the order of the property management area and the normal life of the owners. Refer to articles 67 and 83 of the regulations. 7. management of garbage classification is more stringent As a way to deal with a large amount of domestic waste generated every day, garbage classification has important practical significance for the realization of waste reduction, resource utilization and harmlessness. Subject to the restrictions of the times environment, the original "measures" did not make relevant provisions on garbage classification. However, in recent years, more and more attention has been paid to garbage classification in many places across the country, and relevant regulations have been gradually improved. The new "Regulations" clearly stipulate that owners, property users, and property service providers shall not classify and put domestic waste in accordance with regulations. As for decoration waste, the "Regulations" more clearly pointed out that it should be collected in bags, not mixed with domestic waste, and should be put into the property service person or the location designated by the residents committee. At the same time, the "Regulations" clearly stipulate in the supervision and management part that the comprehensive administrative law enforcement department has the responsibility to investigate and deal with illegal acts such as failing to implement garbage classification management in accordance with the regulations. Thus, the Regulations for the management of garbage classification, compared to the past significantly more stringent. Refer to articles 67, 68 and 83 of the regulations. 8. management of house decoration more clearly The original "Measures" compulsorily stipulated that a decoration service agreement should be signed before decorating a house, that is, the owner and property user should sign a decoration service agreement with the property service company before the start of residential decoration. If no decoration service agreement is signed, the property service enterprise may restrict the construction personnel from entering the property management area. Now the "Regulations" for the decoration of houses, no longer mandatory to sign a decoration agreement. The owner and the property user are required to inform the property service person in advance before the decoration (if there is no property service person, inform the residents committee where the property is located), and the property service person shall inform the owner and the property user of the prohibited behaviors and precautions in the decoration. At the same time, if the owner and the property user need to consult the structure diagram of the building (structure), electrical and other pipeline circuit diagrams, the property service person shall provide it. As for decoration waste, the regulations clearly stipulate that it should be collected in bags, not mixed with domestic waste, and needs to be put into the designated place of the property service person or the residents committee. Refer to Article 68 of the Regulations. 9. more comprehensive management of parking spaces (garages) Parking space related problems are long-standing problems in the property management area; developers "only sell but not rent" parking spaces; property restrictions on owners to install new energy vehicle charging piles and other problems are common in life. The "Regulations" clearly stipulate the management of parking spaces (warehouses) and the corresponding legal consequences, and at the same time solve a series of practical problems. 1. For the rental and sale of parking spaces (warehouses). The "Regulations" stipulate that in the residential property management area, parking spaces (warehouses) should first meet the needs of the owners, and the construction unit should sell, lease, and give away the parking spaces (warehouses) to the owners in the property management area. If there is still a spare space after meeting the needs of the owners, the construction unit may lease it to other people outside the property management area, and the term of each lease shall not exceed six months. In short, the "Regulations" clarify that parking spaces (warehouses) cannot be "sold but not rented", and limit the lease period of parking spaces, so as to protect the owners' demand for parking spaces. 2, for the parking space purchase restriction problem. The Regulations stipulate that if the number of parking spaces (warehouses) is less than or equal to the number of houses in the property management area, a household owner can purchase, lease or give a parking space at most; if the number of parking spaces (warehouses) exceeds the number of houses in the property management area, An owner can buy one more or give one more. To limit the way to protect the owner's demand for parking spaces. 3. Publicity and registration of parking spaces. The Regulations provide that the construction of a single
2022-04-16
15
2022-04
Viewpoint... A brief description of the legal application of government procurement projects.
In the field of procurement bidding, there are great differences between the government procurement system based on the government procurement law and its implementing regulations and the bidding system based on the bidding law and its implementing regulations in terms of legislative purpose, scope of application, procedural selection and value pursuit. As a competing part of the adjustment scope of the two laws, the legal application of government procurement projects is still a difficult problem in practice. This paper takes the construction project procurement case of the central budget unit as a hypothetical case, and briefly analyzes the competition and convergence of the "two laws" in government procurement projects, focusing on practical issues such as the scope of government procurement projects, application of law, budget management, demand management, implementation of government procurement policies, selection of procurement methods and procurement procedures. hypothetical case] Basic facts A central budget unit (a unit in Beijing) has a budget of 5 million yuan, and plans to purchase a mechanical and electrical building to convey the construction project (hereinafter referred to as "the project"). Fact extension 1. Under the basic facts, the budget of this project is changed to 1.3 million yuan. 2. Under the basic facts, the budget fund of this project is changed to 1.1 million yuan, and only this project is purchased by Unit A for the same item. 3. Under the basic facts, the purchase target of Unit A is changed to a separate demolition project for the mechanical and electrical building. Overview of 1. Government Procurement Project Adjustment Scope of Government Procurement Law of (I) The Government Procurement Law stipulates that this Law shall apply to government procurement conducted within the territory of the People's Republic of China. Accordingly, the adjustment object of the Government Procurement Law is government procurement activities. The "Government Procurement Law" stipulates that government procurement refers to the use of financial funds by state agencies, institutions and organizations at all levels to purchase goods, projects and services within the legally established centralized procurement catalog or above the procurement limit. Accordingly, to define whether the procurement behavior belongs to government procurement should comprehensively consider the four elements of the procurement subject, the source of funds, the centralized procurement catalog and the procurement quota standard, and the procurement target. It can be seen that the definition of government procurement is mandatory, that is, the scope of adjustment of the Government Procurement Law is a mandatory norm. The Connotation of (II) Government Procurement Project The "Government Procurement Law" stipulates that projects refer to construction projects, including the new construction, reconstruction, expansion, decoration, demolition, and repair of buildings and structures. In order to further clarify the application of the law and effectively link up with the law of bidding and bidding and its implementing regulations, the concept of "project", "goods related to project construction" and "services related to project construction" is completely consistent with the implementation regulations of the law of bidding and bidding, that is, "project refers to construction project, including the new construction, reconstruction, expansion of buildings and structures and related decoration, demolition, repair, etc." "The goods related to the construction of the project refer to the equipment and materials that constitute an integral part of the project and are necessary to realize the basic functions of the project" "The services related to the construction of the project refer to the survey, design, supervision and other services required for the completion of the project". Accordingly, government procurement works include construction works, goods related to construction works and services related to construction works. On the basis of the concepts of "project", "goods related to project construction" and "services related to project construction", the "Regulations for the Implementation of the Government Procurement Law" stipulates that government procurement of projects and goods and services related to project construction shall be conducted through bidding. For procurement by means of bidding, the the People's Republic of China Bidding Law and its implementation regulations shall apply; for procurement by other means, the Government Procurement Law and these Regulations shall apply. Based on the relevant provisions of the "Government Procurement Law" and its implementing regulations and the "Tendering and Bidding Law" and its implementing regulations, government procurement projects are divided into projects that must be tendered in accordance with the law and projects that are not tendered in accordance with the law. (III) the scope of government procurement projects by central budget units According to the "Notice of the General Office of the State Council on Printing and Distributing the Catalogue and Standards for Centralized Government Procurement of Central Budget Units (2020 Edition)" (Guo Ban Fa [2019] No. 55, hereinafter referred to as "Guo Ban Fa [2019] No. 55"), The projects in the procurement projects of centralized procurement agencies include projects within the limit of the procurement investment budget of central budget units in Beijing above 1.2 million yuan, decoration projects, demolition projects and repair projects; except for the procurement projects of centralized procurement institutions and centralized procurement projects of departments, the procurement quota standard for engineering projects of central budget units is more than 1.2 million yuan. In addition, the State Office issued [2019] No. 55 document also will be the central budget units in Beijing to apply the bidding law in the procurement of engineering supervision services other than the single or batch amount of more than 200000 yuan of construction projects (including buildings and structures of new construction, reconstruction, expansion, decoration, demolition, repair) project supervision services into the centralized procurement catalog. (IV) Case Situation and Government Procurement Project In the case of basic facts and factual extension 1, Unit A uses financial funds to purchase construction projects, which are government procurement projects. In the case of Fact Extension 3, Unit A uses financial funds to purchase a separate demolition project, which is also a government procurement project. Basic case, case change 1 and case change 3 are all within the scope of adjustment of the Government Procurement Law. In the case of fact extension 2, although the projects within the quota of the central budget unit in Beijing are included in the centralized procurement catalogue, the investment budget is required to be above 1.2 million yuan, while the budget amount of the same product of unit a is 1.1 million yuan. therefore, the procurement activities in this case do not belong to government procurement and do not belong to the adjustment scope of the government procurement law. Overview of 2. projects subject to tender in accordance with the law and projects not subject to tender in accordance with the law Overview of (I) projects subject to tender in accordance with the law 1. The scope of adjustment of the Tendering and Bidding Law The Law on Tendering and Bidding stipulates that this Law shall apply to tendering and bidding activities conducted within the territory of the People's Republic of China. Accordingly, the object of adjustment of the Tendering and Bidding Law is tendering and bidding activities. The Tendering and Bidding Law stipulates that large-scale infrastructure, public utilities and other projects related to social public interests and public safety, projects that use state-owned funds or state financing in whole or in part, projects that use loans and aid funds from international organizations or foreign governments, etc. Three types of construction projects include project survey, design, construction, supervision, and procurement of important equipment and materials related to construction, A tender must be made. The specific scope and scale standards shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval. If the law or the State Council has provisions on the scope of other projects that must be subject to bidding, such provisions shall be followed. It can be seen that bidding activities can be divided into voluntary bidding and compulsory bidding. For construction projects of a specific scope and scale, bidding must be compulsory according to law, that is, it belongs to the compulsory adjustment scope of the Bidding Law. 2. Connotation of projects that must be tendered in accordance with the law The "Regulations for the Implementation of the Bidding and Bidding Law" stipulates that the term "construction projects" mentioned in Article 3 of the Bidding and Bidding Law refers to projects and goods and services related to project construction. Accordingly, projects that must be tendered in accordance with the law clearly include the project and the goods and services related to the construction of the project. Different from the connotation of government procurement projects, projects that must be tendered according to law only adjust the "decoration, demolition and repair" related to the new construction, reconstruction and expansion of buildings and structures. The separate "decoration, demolition and repair" of buildings and structures is not a project that must be tendered according to law. 3. The scope and scale standard of the project that must be tendered according to law. About the State Council<必须招标的工程项目规定>(State letter [2018] No. 56), "provisions on projects that must be tendered" (National Development and Reform Commission order No. 16), "National Development and Reform Commission on the issuance<必须招标的基础设施和公用事业项目范围规定>Notice of the General Office of the National Development and Reform Commission (2018 No. 843) and the General Office of the National Development and Reform Commission on Further Doing a Good Job<必须招标的工程项目规定>and<必须招标的基础设施和公用事业项目范围规定>The implementation of the notice (Development and Reform Office Regulations [2020] No. 770) and other laws and regulations on the law must be tendered in accordance with the scope and scale of the project standards for specific and clear provisions. On the scope: (1) Projects that use state-owned funds or state financing in whole or in part include: projects that use budget funds of more than 2 million yuan, and the funds account for more than 10% of the investment; projects that use funds of state-owned enterprises and institutions, and the funds occupy a controlling or dominant position. (2) Projects that use loans and aid funds from international organizations or foreign governments include: projects that use loans and aid funds from international organizations such as the World Bank and the Asian Development Bank; and projects that use loans and aid funds from foreign governments and their institutions. (3) Large-scale infrastructure, public utilities and other projects related to social public interests and public safety, the specific scope of bidding must include: coal, oil, natural gas, electricity, new energy and other energy infrastructure projects; railways, highways, pipelines, and water Transportation, as well as public aviation and A1 general airports and other transportation infrastructure projects; telecommunications hubs, communication information networks and other communication infrastructure projects; water conservancy infrastructure projects such as flood control, irrigation, drainage, and water diversion (supply); urban construction projects such as urban rail transit. On the scale criteria: For projects within the aforementioned scope, if the survey, design, construction, supervision, and procurement of important equipment and materials related to engineering construction meet one of the following standards, bidding must be conducted: (1) The estimated price of a single construction contract is above 4 million yuan; (2) For the purchase of important equipment, materials and other goods, the estimated price of a single contract is above 2 million yuan; (3) For the procurement of survey, design, supervision and other services, the estimated price of a single contract is above 1 million yuan. For the procurement of survey, design, construction, supervision and important equipment and materials related to project construction that can be combined in the same project, if the total estimated contract price meets the standards specified in the preceding paragraph, bidding must be invited. 4. Assumed cases and projects that must be tendered by law. Under the basic facts, the use of financial funds by Unit A to purchase construction projects that are within the scope and above the scale standard must be tendered according to law, and fall within the scope of the compulsory adjustment of the Bidding Law. In the case of factual extension 1, because it does not meet the scale standard, it does not belong to the project that must be tendered according to law, and does not belong to the scope of compulsory adjustment of the bidding law. In the case of factual extension 3, because the subject matter of the procurement is a separate demolition, which has nothing to do with the new construction, reconstruction and expansion of buildings and structures, it does not belong to the project that must be tendered according to law, and does not belong to the scope of compulsory adjustment of the bidding law. Overview of (II) projects not subject to tender in accordance with the law 1. Scope of projects not subject to bidding according to law According to the Government Procurement Law and its implementing regulations, the Law on Forwarding the Legislative Affairs Office of the State Council.<对政府采购工程项目法律适用及申领施工许可证问题的答复>According to the provisions of the notice of the Ministry of Finance (2015 No. 352) and the reply on the application of laws related to government procurement projects (2020 No. 385), no bidding projects shall be carried out in accordance with the law, including:(1) separate decoration, demolition and repair projects above the bidding limit and unrelated to new construction, reconstruction and expansion projects of buildings and structures;(2) Government procurement projects within the government centralized procurement catalog and below the project bidding limit standard;(3) Government procurement projects above the government procurement project limit standard and below the project bidding limit standard are not projects that must be tendered according to law. 2. Assumed cases and projects that are not subject to tender in accordance with the law In the case of factual extension 1, because it is above the quota standard of government procurement projects and below the quota standard of project bidding, it belongs to the scope of compulsory adjustment of the Government Procurement Law. In the case of factual extension 3, the subject matter of the procurement is a separate demolition and has nothing to do with the new construction, alteration or expansion of buildings and structures. Although the budget amount in the case of fact extension 3 is as high as 5 million yuan, it is a separate decoration, demolition and repair project unrelated to the new construction, reconstruction and expansion of buildings and structures, so it belongs to the project that does not carry out bidding according to law and belongs to the scope of compulsory adjustment of the government procurement law. Overview of the procurement methods of 3. government procurement The Government Procurement Law stipulates that the procurement methods of government procurement include public bidding, invitation bidding, competitive negotiation, single-source procurement, inquiry, and other procurement methods recognized by the government procurement supervision and management department of the State Council. Among them, public bidding should be used as government procurement. The main procurement method. In addition, up to now, other procurement methods identified by the Ministry of Finance include competitive negotiation procurement and framework agreement procurement. Among the above procurement methods, the inquiry procurement method and the framework agreement procurement method are not applicable to the procurement of engineering projects. In practice, although public bidding and invited bidding, as the procurement methods of government procurement, are generally consistent with the bidding, bidding, bid opening, bid evaluation and bid winning stipulated in the "Bidding Law" and its implementing regulations in procedures, but look at the differences between the government procurement legal system and the bidding legal system in various aspects such as budget management, demand management, information disclosure, and rights relief, in the government procurement activities of goods and services unrelated to the project, even if the purchaser adopts the public bidding and invitation bidding procurement methods in accordance with the Government Procurement Law, the project should also be in accordance with the Government Procurement Law and its implementing regulations. Legal provisions for procurement activities. Practical Operation of 4. Government Procurement Project It should be noted that although the government procurement project is a complex technical project, the author of this paper believes that the government procurement project is a systematic and comprehensive legal project. Exhausting the author's cognition and work experience, government procurement projects need to at least consider the Budget Law, the Government Procurement Law, the Bidding Law, the Civil Code, the Construction Law, and the SME Promotion Law in the practical operation of government procurement projects. Laws and regulations such as the Energy Conservation Law, the Environmental Protection Law, and the Government Investment Regulations. Due to the author's ability level, in this part of the discussion, only a preliminary discussion of the Budget Law, the Government Procurement Law, the Tendering and Bidding Law, the Civil Code and other laws and regulations related to government procurement projects and often wrong. (I) budget management In terms of budget management, purchasers who purchase government procurement projects shall, in accordance with the Budget Law, the Government Procurement Law, etc.</对政府采购工程项目法律适用及申领施工许可证问题的答复></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定></必须招标的基础设施和公用事业项目范围规定></必须招标的工程项目规定>
2022-04-15
14
2022-04
1. Introduction The right of claim for the distribution of surplus of the company, which is equivalent to the right of first subscription of new shares and the right of claim for the distribution of surplus property, is the property right enjoyed by shareholders. After the company makes profits, some shareholders hope to retain earnings to expect higher returns, and some shareholders hope to obtain income in time to seek short-term benefits. The Company Law stipulates that shareholders of the company have the right to asset income according to law, but there is no mandatory regulation on how the company distributes profits. In principle, this belongs to the scope of business judgment and autonomy of the company. The company can adopt articles of association, resolutions of shareholders (large) meeting and other forms according to actual needs, make a profit distribution agreement that is conducive to the establishment of a cooperative relationship between shareholders. Capital contribution is the most basic and important obligation of shareholders, the company's registered capital is the basis of the company's operation and capital maintenance, the company's profits depend on the shareholders' capital contribution, at the same time, the company's public registered capital is also an important basis for others to examine the strength of the company. The failure of shareholders to fulfill their capital contribution obligations not only infringes the interests of the company and other shareholders, but also deceives the company's creditors and infringes the interests of creditors. In practice, the disputes arising from shareholders' capital contribution are diverse and complex, which deviates from the company's capital system. Therefore, the Company Law and relevant judicial interpretations not only stipulate that shareholders who have not fulfilled their capital contribution obligations make up their capital contributions and bear the liability for breach of contract to shareholders who have made full capital contributions, but also stipulate that the company can reasonably restrict the shareholders' rights such as the right to request profit distribution, the right to subscribe for new shares, and the distribution of surplus property. This paper will make a brief analysis of the limitation of the company's surplus distribution claim of shareholders who have not fulfilled their capital contribution obligations. 2. relevant laws and regulations (I) Company Law Article 4 stipulates that the shareholders of a company shall enjoy the rights of asset income, participation in major decision-making and selection of managers in accordance with the law. Article 13 stipulates that in a case where a shareholder requests a company to distribute profits, the company shall be listed as the defendant. Before the conclusion of the court debate of the first instance, if other shareholders request the distribution of profits based on the same distribution plan and apply to participate in the litigation, they shall be listed as co-plaintiffs. Article 34 stipulates that shareholders shall share dividends in accordance with the proportion of capital contributions paid in; when the company adds new capital, shareholders shall have the right to pay capital contributions in accordance with the proportion of capital contributions paid in priority. However, unless all shareholders agree not to share dividends in proportion to their capital contributions or not to give priority to their capital contributions in proportion to their capital contributions. The fourth paragraph of Article 166 stipulates that the after-tax profits of a company after making up for losses and withdrawing provident funds shall be distributed by a limited liability company in accordance with the provisions of Article 34 of this Law; a joint stock limited company shall be distributed in accordance with the proportion of shares held by shareholders, except where the articles of association of a joint stock limited company stipulate that it shall not be distributed according to the proportion of shares held. (II) Company Law Interpretation III The first paragraph of Article 13 stipulates that if a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. Article 16 stipulates that if a shareholder fails to perform or fully perform the obligation of capital contribution or evades capital contribution, the company shall, in accordance with the articles of association or the resolution of the shareholders' meeting, make corresponding reasonable restrictions on the rights of shareholders such as the right to claim profit distribution, the right to subscribe for new shares, and the right to claim the distribution of surplus property. If the shareholder requests that the restriction be invalid, the people's court shall not support it. (III) Company Law Interpretation IV Article 14 stipulates that if the shareholders submit a valid resolution of the shareholders' meeting or the general meeting of shareholders specifying the specific distribution plan to request the company to distribute the profits, and the company refuses to distribute the profits and its defense against the inability to implement the resolution is not tenable, the people's court shall judge the company to distribute the profits to the shareholders in accordance with the specific distribution plan specified in the resolution. Article 15 stipulates that if a shareholder fails to submit a resolution of the shareholders' meeting or general meeting containing a specific distribution plan to request the company to distribute profits, the people's court shall reject his claim, except where the abuse of shareholders' rights in violation of the law results in the company's non-distribution of profits and causes losses to other shareholders. (III) securities law Article 91 stipulates that a listed company shall specify in its articles of association the specific arrangements and decision-making procedures for the distribution of cash dividends, and protect the shareholders' right to return on assets in accordance with the law. If a listed company has a surplus after making up its losses and withdrawing its statutory provident fund, it shall distribute cash dividends in accordance with the provisions of the articles of association. 3. Focus Analysis Can other shareholders of the (I) sue the court to limit the right to claim profit distribution for shareholders who have not fulfilled their capital contribution obligations? Regarding the determination of whether the right to request profit distribution of shareholders who have not fulfilled their capital contribution obligations can be restricted, the main legal basis is Article 16 of the Interpretation III of the Company Law. The applicable conditions of this clause are two: First, shareholders have not fulfilled or have not fully fulfilled their capital contribution obligations., Or there is an act of evading capital contribution; second, restrictions should be made in accordance with the company's articles of association or the resolution of the shareholders meeting. It can be seen that the law gives the company or the shareholders' meeting the right to limit part of the self-interest of shareholders who have not fulfilled their capital contribution obligations, but does not give other shareholders the same rights, so other shareholders do not have the substantive rights to restrict the rights of shareholders who have not fulfilled their capital contribution obligations, and they do not have the right to directly claim the right to limit the profit distribution of shareholders who have not fulfilled their capital contribution obligations. However, in judicial practice, other shareholders usually claim that shareholders who have not fulfilled their capital contribution obligations fully perform their capital contribution obligations to the company in accordance with the first paragraph of Article 13 of the Interpretation III of the Company Law, and at the same time require restrictions on their right to claim profit distribution. When deciding that shareholders fulfill their capital contribution obligations, they also made judgments on the litigation claims of shareholders who have not fulfilled their capital contribution obligations. When other shareholders as plaintiffs bring up the right to restrict the profit distribution claim of shareholders who have not fulfilled their capital contribution obligations, there are also different views on the choice of defendants: there are separate listed shareholders who have not fulfilled their capital contribution obligations as defendants, there are separate listed companies as defendants, there are cases where the company and shareholders who have not fulfilled their capital contribution obligations are listed as co-defendants, and there are cases where the company is listed as defendants and shareholders who have not fulfilled shareholders who have not fulfilled their capital contribution obligations as third parties. However, the majority of the court held that if the shareholders who have not fulfilled their capital contribution obligations are the defendants alone, the request to restrict their right to claim profit distribution will not be supported. Is the right to claim profit distribution (II) shareholders who have not fulfilled their capital contribution obligations necessarily limited by the degree of their actually paid capital contribution? As a shareholder, one of the most important purposes of investing in a company is to make the company profitable and receive dividends through its operations. In practice, there are many manifestations of shareholders' failure to fulfill their capital contribution obligations, such as putting money into the company's account and then transferring it out in order to meet the capital verification, and making capital contributions in kind or assets but not going through the formalities of transfer or transfer of property rights. These acts directly lead to the reduction of the company's disposable cash, adversely affect the company's capital turnover and management, and are not conducive to the security of transactions and the protection of creditors' interests. Therefore, in principle, the right of shareholders who have not fulfilled their obligations to obtain property benefits should be limited by the degree of their actual contribution. However, the distribution of dividends of the company belongs to the category of corporate autonomy, and shareholders can agree on the distribution of dividends separately, so the company will have to carry out the distribution in accordance with the agreement if it is otherwise agreed. Article 34 of the Company Law makes more flexible provisions on the proportion of dividends for shareholders of limited liability companies. In principle, shareholders share dividends according to the proportion of paid-in capital. However, based on the private law attribute of the Company Law and the personality of limited liability companies, the law makes a special provision that all shareholders can share dividends by agreement not according to the proportion of capital contribution, thus giving shareholders the right to autonomy in the distribution of surplus profits. Article 166, paragraph 4, of the Company Law also provides for the proportion of profits distributed to shareholders of a joint-stock company, and unless otherwise provided for in the articles of association, the company distributes profits in proportion to the shares held by shareholders, which reflects the characteristics of the capitalization of a joint-stock company. At the same time, Article 91 of the Securities Law stipulates that the articles of association of listed companies shall specify the specific arrangements and decision-making procedures for the distribution of cash dividends. According to the above provisions, it can be seen that compared with limited companies, the autonomy of profit distribution of joint-stock companies is smaller, listed companies are mainly regulated by the CSRC, in practice, the company's surplus distribution disputes are mainly concentrated in limited companies. If the shareholders of a limited company fail to fulfill their capital contribution obligations, unless otherwise provided in the articles of association, they shall not affect their right to claim profit distribution, but shall, in accordance with the provisions of Article 34 of the Company Law, share dividends in proportion to the paid-in capital contribution, unless all shareholders have signed the relevant contract, which shall be dealt with in accordance with the contract. Can shareholders who have not fulfilled their capital contribution obligations of the (III) request the company to distribute profits to them in accordance with the agreement between shareholders? According to the principle of "capital majority decision", the resolution of the company's shareholders' meeting is often controlled by the majority shareholder, and in reality there are frequent disputes in which the majority shareholder uses the dividend policy to harm the interests of small and medium-sized shareholders. According to the provisions of Articles 14 and 15 of the Interpretation IV of the Company Law, shareholders requesting the company to distribute profits shall, in principle, submit an effective resolution of the shareholders meeting or shareholders meeting that specifies the specific distribution plan; if the resolution is not submitted, the shareholders shall not Request the distribution of profits, but if the abuse of shareholder rights in violation of the law causes the company not to distribute profits and causes losses to other shareholders, shareholders can directly request the company to distribute profits. It can be seen from Article 16 of the Interpretation III of the Company Law that the company may make "reasonable restrictions" on the self-interest rights of shareholders who have not fulfilled their capital contribution obligations, rather than depriving them of their shareholders' rights altogether, so that shareholders who have not fulfilled their capital contribution obligations as shareholders of the company may request the company to distribute profits. In judicial practice, there are different views on whether the inter-shareholder agreement can be used as the basis for distribution. The majority view is that the inter-shareholder agreement can be used as the basis for the distribution of profits until the company's shareholders' meeting or general meeting has made an effective resolution on the specific plan for profit distribution. However, there are also views that before the profit distribution plan is made, there is uncertainty about the amount of distribution requested by shareholders, and the court cannot make business judgments and choices on behalf of the company, and the shareholders' claims should be rejected. However, after the effective resolution is made, there are two completely different views, some scholars believe that shareholders should request the company to distribute profits according to the resolution, and some scholars believe that specific analysis should be carried out according to the time and effect of the resolution and the agreement between shareholders. The company's resolution to distribute profits shall be open to all shareholders, and if the company pays dividends to individual shareholders alone, it is judged that it constitutes a withdrawal of capital contributions. 4. related cases (I) Case 1:(2016) Supreme Famin No. 357 Basic case: Yihu Company (the third party in the first instance) is a Sino-foreign joint venture company. Its shareholders are Yizhong Company (the plaintiff in the first instance and the appellee in the second instance), Lesheng Nanao Company (the defendant in the first instance and the appellee in the second instance) and Chenghai Erjian Company (the third party in the first instance). Lesheng Nanao Company should contribute 9.3 mu of land use rights, but the company has not fully fulfilled its contribution obligations. On March 30, 2012, Yihu Company held a board meeting and formed a resolution. Because Lesheng Nanao Company failed to fulfill its capital contribution obligations, Lesheng Nanao Company did not enjoy the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property. And other shareholder rights. Yizhong Company filed a claim to confirm that Lesheng Nanao Company has not fulfilled its capital contribution obligations, and Lesheng Nanao Company does not have the right to claim profit distribution, the right to subscribe for new shares, the right to claim the distribution of surplus property and other shareholder rights. The Court of First Instance (Intermediate People's Court of Shantou City, Guangdong Province) held that the prerequisite for shareholders to enjoy shareholders' rights is to assume shareholders' obligations, and that shareholders' rights such as the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property correspond to the obligation to contribute, and that the above-mentioned shareholders' rights should be exercised in proportion to the paid-in capital contribution. In this case, the fact that Lesheng Nanao Company did not fulfill its capital contribution obligations is clear, and the exercise of its shareholders' rights should be restricted. Therefore, Lesheng Nanao Company argued that the procedure and content of the restriction notice made by Yihu Company were illegal, and the reason was not valid and would not be adopted. Yizhong Company requested the court to confirm that Lesheng Nanao Company does not enjoy the shareholders' rights of profit distribution, new shares of priority subscription, surplus property distribution and other shareholders' rights to Yihu Company, which are reasonable and lawful. The court of second instance (Guangdong Provincial Higher People's Court) held that the facts found in the original trial were clear, the applicable law was correct, and the handling was appropriate. The retrial court (Supreme People's Court) held that one of the focuses of the dispute in this case is whether Lesheng Nan'ao Company should be restricted to the corresponding shareholders' rights. First of all, Lesheng South Australia Company has not failed to fulfill its capital contribution obligations, but has not fully fulfilled its capital contribution obligations. Secondly, the articles of association of Yihu Company do not specify that shareholders who fail to fully fulfill their capital contribution obligations will be restricted in their rights. Third, since the legislation of China's Foreign Investment Enterprise Law predates the legislation of the Company Law, the the People's Republic of China Law on Sino-Foreign Joint Ventures and its implementing regulations do not provide for shareholders' meetings in the governance structure of joint ventures, and the corresponding duties of shareholders' meetings are actually exercised by the board of directors. After investigation, the resolution of the board of directors of Yihu Company on March 30, 2012 was invalid because it did not reach the approval ratio stipulated in the articles of association of Yihu Company. According to Article 16 of the "Judicial Interpretation III", restrictions on shareholders' rights such as the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property shall meet the following conditions at the same time: First, shareholders have not fulfilled or have not fully fulfilled their capital contribution obligations, Or there is an act of evading capital contribution; second, restrictions should be made in accordance with the company's articles of association or resolutions of shareholders. Therefore, the request of Yizhong Company and Yihu Company to restrict the corresponding shareholder rights of Lesheng Nanao Company according to the resolution of the board of directors of Yihu Company cannot be supported. The second-instance judgment of the 1. found that Lesheng Nan'ao Company did not enjoy the shareholder rights of Yihu Company, such as the right to request profit distribution, the right to subscribe for new shares, and the right to request the distribution of surplus property, which lacked factual and legal basis and should be corrected. (II) Case 2:(2014) Zhejiang Wen Shang Zhong Zi No. 691 Basic case: On February 10, 2004, the plaintiff Gao Qi, the defendants Lin Chunhua, Zheng Yuzan and Wen Jibin invested in the establishment of Handan Anfu Company. On December 30, 2009, because the company did not go through the annual inspection, the Shexian County Administration for Industry and Commerce made an administrative penalty decision No. 446 (2009), revoking the business license of Handan Anfu Company as an enterprise legal person, and requiring Handan Anfu Company to liquidate and cancel its registration. On November 20, 2010, all shareholders of Handan Anfu Company held an interim shareholders' meeting in Hangzhou, which decided to set up a liquidation group in order to dissolve Handan Anfu Company in accordance with the law. On August 8, 2011, Gao Qi received a "resolution of the shareholders' meeting" of Handan Anfu Company unilaterally made by Wen Jibin, Zheng Yuzan and Lin Chunhua, denying the fact of Gao Qi's capital contribution and thus denying the company's shareholder qualification. The high-term prosecution requested the defendant to return the registered capital and profit share. The court of first instance (the People's Court of Cangnan County, Zhejiang Province) held that: the subject of the obligation of the company's right to claim surplus distribution can only be the company, the shareholders of the company can only file a surplus distribution lawsuit against the company, and there is no surplus distribution between the shareholders of the company and between the directors of the company and the shareholders of the company.
2022-04-14
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
