Point of View | Relative Non-Prosecution-An Effective Defense for a Suspected Crime of Illegal Destruction of Agricultural Land

Recently, the author handled a case suspected of illegal destruction of agricultural land, and the procuratorial organ finally dealt with the client Wang so-and-so, and the defense effect was good. A brief case After finding out, in order to carry out the "four good" rural road construction, the village committee of a certain town signed a "project contract" with a certain road and bridge co., ltd. without going through the formalities of requisitioning forest land, the road and bridge co., ltd. used excavators to carry out road construction in Nanshan of a certain village, resulting in the destruction of forest land and vegetation, which was identified by the forestry engineer of a certain district natural resources bureau, the destroyed forest land covers a total area of 5.6 mu and belongs to provincial public welfare forest. A total of 1008 young Robinia pseudoacacia trees and 30 young cypress trees were destroyed. Wang Moumou is the party branch secretary of Moumou Village and the director of the villagers committee, and Liu Moumou is the person in charge of the road construction site of Road and Bridge Co., Ltd., and it is determined that Wang Moumou and Liu Moumou violated the provisions of Article 342 of the the People's Republic of China Criminal Law. The crime of illegally occupying agricultural land shall be transferred for review and prosecution in accordance with Article 162 of the Criminal Procedure Law. II Treatment Results The procuratorial organ believes that Wang has committed the acts stipulated in Article 342 of the Criminal Law, but the circumstances of the crime are minor, with voluntary surrender, confession and punishment, compensation and understanding, "replanting and restoration of green" and other statutory circumstances of lighter, mitigated or exempted criminal punishment. According to Article 67 of the Criminal Law, there is no need to impose a penalty, so according to Article 177, paragraph 2, of the Criminal procedure Law, decided not to prosecute Wang Moumou-that is, relatively not to prosecute. Three defense ideas The defender believes that the indictment accuses Wang's behavior of illegally occupying agricultural land, which cannot be established in accordance with the law. First of all, the damaged public welfare forest alleged in this case has not been publicized in defining the scope of public welfare forest, nor has it been set up with public welfare forest signs. It is impossible to identify whether it is a public welfare forest. Even if the forest land involved is a public welfare forest, Wang Moumou does not know this. In addition, the 5.6 mu of forest land charged in this case includes 0.94 mu of basic farmland, which is not forest land and should be deducted. If this part is deducted, the case will not meet the filing standard. In addition, the appraisal of the area of public welfare forests in this case does not comply with relevant laws and regulations. The appraisal opinion is only signed by two engineers and technicians, and only the title certificates of two technicians are provided. The two engineers and technicians do not have judicial appraisal qualifications., Is not an appraiser of a judicial appraisal agency, the appraisal conclusion made does not meet the formal requirements of the evidence and should not be used as the basis for finalization. Secondly, according to the project documents, the unit involved in the project is the District Transportation Bureau, and the main body of responsibility for road construction should be the county-level people's government and the township-level people's government, not the so-and-so village committee. There is no evidence to prove that the responsibility for handling road construction procedures (including forest land occupation) lies with the village committee or Wang Moumou. Thirdly, if it is indeed a public welfare forest, the problem can be solved by completing the formalities. The village is the only backward village in its town that has neither public transportation nor school buses. It is extremely inconvenient for production and life, which seriously restricts the development of the village. The construction of the "Four Good Rural Roads" is a major national project to benefit the people. To implement the country's good policies and let the old white surname truly enjoy the policy dividend, the relevant departments need to fine-tune their thinking, and the procedures should be completed. Go through the formalities, not the person! Moreover, the forest land involved in the case can be completely repaired by replanting. Wang Moumou cooperated with the government to build roads for the people. It was a kind act of public will, no social harm, and should not be punished; Wang Moumou's behavior did not constitute the crime of illegal occupation of agricultural land. Request the procuratorate to do not prosecute Wang Moumou. Analysis of four crimes 1. Standards of conviction and punishment Article 342 of the the People's Republic of China Criminal Law [Crime of Illegal Occupation of Agricultural Land] Violation of land management laws and regulations, illegal occupation of cultivated land, forest land and other agricultural land, change the use of the occupied land, and cause a large amount of cultivated land, forest land and other agricultural land Anyone who is destroyed shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine or a fine. Interpretation of the Supreme Law on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases of Destroying Forest Land Resources Article 1: Under any of the following circumstances, if it belongs to "a large number of forest land, causing a large amount of destruction", it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention for the crime of illegally occupying agricultural land, and shall also be sentenced to a fine or a fine: The amount of (I) illegally occupied and destroyed protective forest land and forest land for special purposes respectively or in total reaches more than five mu; (II) illegally occupy and destroy more than 10 mu of other forest land; The (III) illegally occupies and destroys the forest land specified in Item (I) and (II) of this article, and the quantity reaches more than 50% of the corresponding quantity standard; (IV) illegally occupy and destroy the forest land specified in items (I) and (II) of this article, one of the quantities reaches more than 50% of the corresponding quantity standard, and the total quantity of the two items reaches the quantity standard specified in this article. 2. Constituent elements 1) Object element: The object of this crime is the country's land management system. 2) Objective elements: the objective aspect of this crime is the violation of land management laws and regulations, illegal occupation of agricultural land for other purposes, a large number of large, resulting in a large number of agricultural land destruction. 3) Subject element: The subject of this crime can be either a natural person or a unit. 4) Subjective elements: This crime is manifested as intentional in the subjective aspect. That is, knowing that the occupation of agricultural land for other purposes violates land management laws and regulations, and knowing that the occupation of agricultural land for other purposes will cause the destruction of a large number of agricultural land. 5 Types of Non-Prosecution Non-prosecution means that the People's Procuratorate, after examining the prosecution, makes a decision not to transfer the case to the People's Court for trial and terminates the proceedings. Non-prosecution is one of the results made by the People's Procuratorate in accordance with the law after reviewing the case. Its nature is a kind of litigation punishment made by the People's Procuratorate on criminal suspects who should not be investigated, do not need to be investigated, or cannot be investigated for criminal responsibility. The types of non-prosecution are as follows: 1. Statutory non-prosecution (absolutely non-prosecution) Statutory non-prosecution refers to the provisions of Article 142, paragraph 1, of the Criminal Procedure Law: If a criminal suspect has one of the circumstances specified in Article 15 of this law, the People's Procuratorate shall make a decision not to prosecute, which is called absolute non-prosecution. According to Article 15 of the Criminal Procedure Law, statutory non-prosecution applies to the following six situations: (1) The circumstances are obviously minor and the harm is not serious, and it is not considered a crime; (2) the crime has passed the period of limitation of prosecution; (3) where the penalty is waived by an amnesty decree; (4) Crimes that are dealt with only after being told in accordance with the Criminal Law, and have not been told or have been withdrawn; (5) the death of the suspect or defendant; (6) Other laws provide for exemption from criminal liability. 2. Discretionary non-prosecution (relative non-prosecution) Article 173, paragraph 2, of the Criminal procedure Law stipulates that if the circumstances of the crime are minor and there is no need to be sentenced or exempted from punishment in accordance with the provisions of the Criminal Law, the people's Procuratorate may make a decision not to prosecute. Discretionary non-prosecution may apply in the following circumstances: (1) A criminal suspect who commits a crime outside the territory of China shall bear criminal responsibility in accordance with the Chinese Criminal Law, but has already received criminal punishment in a foreign country (Article 10 of the Criminal Law); (2) The suspect is deaf and dumb, or blind (Article 19 of the Criminal Law) (3) The criminal suspect commits a crime due to justifiable defense or emergency avoidance (Articles 20 and 21 of the Criminal Law); (4) Preparing tools and creating conditions for the crime (Article 22 of the Criminal Law); (5) In the course of the crime, the crime is automatically suspended or the result of the crime is automatically and effectively prevented from occurring without causing damage (Article 24 of the Criminal Law); (6) Having a secondary or auxiliary role in a joint offence (art. 27 of the Criminal Code); (7) Being coerced to participate in a crime (art. 28 of the Criminal Code); (8) The criminal suspect surrendered himself or performed significant meritorious service (articles 67 and 68 of the Criminal Law). 3. Insufficient evidence does not prosecute (doubt does not prosecute) Article 140, paragraph 4, of the Criminal procedure Law stipulates that for cases of supplementary investigation, if the people's Procuratorate still considers that the evidence is insufficient and does not meet the conditions for prosecution, it may make a decision not to prosecute. Under any of the following circumstances, if it cannot be determined that the criminal suspect constitutes a crime or needs to be investigated for criminal responsibility, the evidence is insufficient and the conditions for prosecution are not met, and a decision not to prosecute may be made: (1) The evidence on which the conviction is based is questionable and cannot be verified; (2) The facts of the constituent elements of the crime lack the necessary evidence to prove it. (3) The contradiction between the evidence on which the conviction is based cannot be reasonably excluded; (4) The conclusion based on the evidence has other possibilities.

2022-04-11

Viewpoint | Effective Defense of a Case of Compulsory Indecency and Insult-Whether the Original Match Catches Rape, Beatings Naked "Little Three" and Videotapes Constituting Crime

Brief of the case Bai (female) and Wang (male) have been married for many years, and have a daughter, Xiao Wang, who is an adult. Bai and Wang have a bad relationship in recent years and often quarrel. Later Bai went to her daughter's home to live because she took care of her children for her daughter Xiao Wang. In early 2020, Bai learned that her husband, Wang, was outside and often took the woman to spend the night at home. On the evening of April 1, 2020, after confirming that Wang and "small three" were sleeping at home, Bai, in order to collect evidence of her husband's marital infidelity, contacted her daughter Xiao Wang and nephew Li and other relatives and friends 4 men and 4 women to catch rape at home. Xiao Wang climbed into the room from the balcony of his neighbor's house to open the door without using the key. Nine people rushed into the room. Bai and Xiao Wang beat the "mistress" and prevented him from putting on clothes and blocking his private parts to keep him naked all the time. Li recorded the whole process of nudity and humiliation of the "mistress" for about 30 minutes, the rest are responsible for controlling Wang mou to prevent him from resisting and for the whole process. Video recording. Xiao Wang and others took the initiative to call the police in order to leave smoothly, considering that Wang had a tendency to violence. After forensic identification, "Xiao San" suffered facial contusion, soft tissue swelling caused by external force, accompanied by scattered skin scratches on the face and trunk, and the degree of injury was minor. The public security organ filed a case for investigation on suspicion of compulsory indecency and insult by Bai, Xiao Wang and Li, and then transferred the case to the procuratorate for examination and prosecution. Case handling results The author accepted the entrustment at the stage of examination and prosecution. After reading the papers, the author thinks that the behavior of Bai and others does not constitute the crime of compulsory indecency or compulsory insult. Although the public security organ can accept the alarm affairs, it should not put the case on file for investigation as a criminal case. Based on the above analysis, after forming a written defense opinion, the author communicated with the undertaking prosecutor many times and submitted a legal search report on similar cases. Finally, the undertaking prosecutor adopted the above opinions of the author, believing that Bai and others did not constitute the crime of compulsory indecency and insult, and returned the case to the public security for withdrawal. Of course, the author's defense point of view will only play a role if it is adopted and accepted by the undertaking prosecutor, and the undertaking prosecutor's adherence to the principle of "taking facts as the basis and the law as the criterion" and fairness and justice is the ultimate fairness of Bai and others. The fundamental guarantee for handling. defense thinking The news that the original match took people to catch rape and beat "mistress" in public often appeared on the Internet. The author conducted legal searches through big data and found that the judicial practice was not the same for this kind of behavior. Some courts believed that violence was used. The method openly insulted women in public, and the circumstances constituted a crime of compulsory insult; some courts believed that the act constituted a crime of insult and was a private prosecution case; some courts believed that this act was a crime of compulsory indecency. The public security organ transferred the case to the procuratorate for examination and prosecution on suspicion of compulsory indecency and insult. The author believes that the crime of compulsory indecency and insult is a selective crime, and Bai's behavior involved in the case is neither compulsory indecency nor compulsory insult. Looking at the whole process of the incident, we can see that Bai was very angry about her husband Wang's infidelity during his marriage and wanted to sue for divorce. He gathered his daughter and others to collect divorce evidence by catching rape in bed. At the time of the incident, someone was responsible for controlling Wang, and someone was responsible for filming the entire process. Bai beat the "little three" in anger and prevented him from wearing clothes and kept him naked for about half an hour. It can be said that the basic facts of this case are relatively clear. The author believes that whether Bai and others constitute the crime of compulsory indecency and insult depends on whether Bai and others subjectively have the criminal intention of "pursuing sexual stimulation and sexual satisfaction" and objectively Whether it infringes on the sexual autonomy of the "little three. Analysis of the charges involved According to the provisions of Article 237 of the Criminal Law of our country, the crime of compulsory indecency and insult refers to the act of forcibly molesting others or insulting women by violence, coercion or other means against the will of the victim. The object of the crime of compulsory indecency and compulsory insult is the victim's right to decide on sexual freedom. The crime of compulsory indecency and insult is a selective crime in form. In theory, it can be identified as a complete crime, and the "compulsory indecency" and "compulsory insult" can be convicted separately. However, the author believes that there is a certain rank relationship between "compulsory indecency" and "compulsory insult". Of course, indecency hurts women's sexual shame and personal dignity in sexual health, so it must "insult" women at the same time. For those whose behavior means and circumstances are related to "indecency" but slightly lower than "compulsory indecency", the "crime of compulsory insult" can be determined separately ". Although it is not stated in the law that the crime should be constituted "for the purpose of pursuing sexual stimulation and sexual satisfaction", both in theory and in practice, it is required that the crime should be constituted subjectively "for the purpose of pursuing sexual stimulation and sexual satisfaction", that is, the actor has a specific stimulation and the tendency to satisfy sexual desire is a necessary condition for the crime. analysis of the case (I) Bai and others entered the house to "catch rape" in order to collect evidence of divorce, the various acts involved in the case were to vent their anger, did not have the purpose of pursuing sexual stimulation and sexual satisfaction, and did not meet the constitutive elements of the crime of compulsory indecency. The cause of this case is that Bai mou wanted to collect evidence of her husband's infidelity for divorce because her husband had an extramarital affair with the victim. considering that her husband was irritable and had committed domestic violence against him, Bai mou found his daughter Xiao Wang and other relatives to help "catch rape" and collect evidence. At the time of the crime, Bai saw her husband sleeping naked with the victim in his own home. Bai opened the quilt, and then controlled the victim with Xiao Wang and others, abused, pulled, prevented him from wearing clothes, and arranged for someone to take nude photos of the naked victim. This case is dominated by Bai. Xiao Wang is his daughter. He participated in the case out of the motive of helping his mother teach the "little three". The other people present were Bai's relatives and friends, and the victim was taught out of the idea of helping Bai. Although Li was a male, he was only responsible for taking photos and videos at the time of the crime, and did not have physical contact with the victim. "Indecency" is interpreted as "promiscuous and indecent actions" in the "Modern Chinese Dictionary". Compulsory indecency emphasizes personal contact to a certain extent. Judging from the course of the case, it is mainly Bai who has physical contact with the victim in this case. In this case, the closest action to "indecency" is Bai's "grabbing the lower body" and "touching the breast" of the victim. However, Bai, as a derailed woman, did not allow the naked victim to wear clothes, abuse, beat, grab the lower body, touch the breast and other acts at the scene of "catching rape", which was motivated by anger and subjective purpose. It is to derogate the victim's personality and reputation. No matter Bai himself or Xiao Wang and other criminal suspects had no sexual thoughts about the victim at the time of the crime, and subjectively did not have the intention to satisfy the obscene and shameless hooligan psychology. Therefore, the behavior of Xiao Wang and others does not meet the constitutive elements of the crime of compulsory indecency. (II) the behavior of Bai and others does not meet the constitutive elements of the crime of compulsory insult. In the "Modern Chinese Dictionary", the word "insult" has only one meaning, that is, "to damage the personality or reputation of the other party and suffer shame", but "insult" is given a different meaning in the criminal law. The "insult" in the crime of insult in Article 246 of the Criminal Law uses the general meaning of the term, that is, the infringement of citizens' general personal dignity, focusing on the protection of citizens' right of reputation. The crime of compulsory insult stipulated in Article 237 of the Criminal Law is separated from the crime of hooliganism in the Criminal Law of 1979. From its historical evolution and its position in the whole criminal law system, it can be seen that the crime of compulsory insult belongs to the crime of infringing on sexual rights and sexual health, focusing on the personal interests and dignity of women's right to decide on their own sex, the "insult" in the count of the crime should be understood as being related to "indecency" or at least equivalent and equivalent in guilt. Different from the insult in the crime of insult, the act of compulsory insult will of course damage and humiliate the other party's personality or reputation, but the crime is limited to the behavior of the perpetrator related to the right to sexual health for the purpose of sexual stimulation and sexual satisfaction. From the point of view of the object of the crime, the crime of compulsory insult is that the perpetrator commits a crime out of hooligan motive, and its object is an unspecified woman, who is randomly selected in the commission of the crime. In this case, Bai and others collected evidence of her husband's infidelity for the purpose of "catching rape", and the object of the violation was specific. From the subjective aspect of the crime, Bai did not insult the victim out of a hooligan motive seeking stimulation. The location of the crime was Bai's own home, which objectively did not endanger the social management order. Bai's purpose was not to accomplish his own hooligan purpose, but only to derogate the victim's personality, venting anger. Therefore, in this case, the behavior of Bai, Xiao Wang and others is based on venting revenge and insulting the victim, making him embarrassed, damaging his reputation and lowering his social evaluation. The object of this behavior is specific. Bai, Xiao Wang and others subjectively do not have the hooligan motive and purpose of pursuing sexual stimulation and sexual satisfaction, and their behavior does not meet the constitutive requirements of the crime of compulsory insult. (III) the behavior of openly insulting others must reach the degree of seriousness to constitute the crime of insulting. The behavior of Bai and others has not reached the degree of seriousness and does not constitute the crime of insulting. According to Article 246 of China's Criminal Law, the crime of insult "refers to the use of violence or other means to openly derogate the personality of another person, damage the reputation of another person, and the circumstances are serious. The crime of the preceding paragraph shall be dealt with only if told, except for those that seriously endanger social order and national interests." The crime of insult violates the object of abstract human dignity and reputation right; the subjective aspect of the perpetrator is generally motivated by revenge, jealousy, and anger, with the purpose of belittling the personality of others and destroying their reputation. Although there is an act of blatant insult to others, it does not belong to the serious circumstances, but only belongs to the general civil tort, that is, the act of blatant insult to others must reach the serious degree to constitute the crime of insult. The so-called serious circumstances, mainly refers to the means bad, serious consequences and other situations. In this case, Bai witnessed her husband sleeping naked with the victim on the spot, and his behavior was out of control. He carried out various humiliating behaviors to the victim. Subjectively, he wanted to make the victim make a fool of himself, mainly out of anger and revenge. The victim in this case knew that Wang was married and still had an improper relationship with him for a long time, destroying other people's families, and had a major fault for the occurrence of this case. Moreover, the case occurred in Bai's own home, which was a closed space. Although Bai and others took photos and videos of the incident, they did not upload the photos and videos to the Internet or forward them to social platforms, it did not cause the victim's social evaluation to be reduced on a large scale, nor did it cause consequences that harmed the public order and national interests. In addition, although Bai and others have beaten the victim, they only cause the harmful consequences of minor injuries to the victim. After the incident, Bai took the initiative to contact the victim, actively compensated the victim and obtained understanding. This case was caused by the intensification of marriage and family conflicts. Bai was unable to correctly handle the marriage crisis. In order to vent his anger and retaliate, the act of "catching rape" violated the law. Considering the circumstances of this case and the victim's own fault, the behavior of Bai and others has not yet reached The degree of seriousness should not be recognized as constituting a crime of insult.

2022-04-06

Viewpoint... A brief analysis of the legal application of the reverse denial of legal personality and horizontal denial.

1. Introduction The denial of legal personality, also known as "piercing the veil of legal person", refers to a post-regulation means set up to prevent the shareholders of a limited liability company from abusing the basic principles of company law, such as the independence of corporate personality and the limited liability of shareholders, to harm the interests of the creditors of the company. According to the current law, the denial of legal personality can make the shareholders bear joint and several liability for the company's debts, that is, to realize the "forward" denial of legal personality. However, there are disputes in judicial practice whether the company can bear joint and several liabilities for shareholders, and control shareholders or actual controllers to control multiple subsidiaries or affiliated companies, that is, to realize the "reverse" denial or "horizontal" denial of legal personality. This paper aims to sort out the relevant legal provisions and analyze the application of reverse denial and horizontal denial of legal personality in judicial practice. 2. relevant legal provisions and provisions of the Nine People's Minutes (I) relevant legal provisions Article 20, paragraph 3, of the Company Law stipulates that if the shareholders of a company abuse the independent status of the company as a legal person and the limited liability of shareholders to evade debts and seriously harm the interests of the creditors of the company, they shall bear joint and several liability for the debts of the company. Article 63 of the Company Law stipulates that if a shareholder of a one-person limited liability company cannot prove that the company's property is independent of the shareholder's own property, he shall be jointly and severally liable for the company's debts. In addition, the second paragraph of Article 21 of the Company Law (Revised Draft), which was publicly released on December 24, 2021 for comments, states that if the shareholders of a company use two or more companies under their control to commit the acts specified in the preceding paragraph, each company shall be jointly and severally liable for the debts of any one company. (Hint: The draft is not yet in force) Relevant Provisions of (II) Nine Minute Minutes The Minutes of the National Court Conference on Civil and Commercial Trials (Law [2019] No. 254) (hereinafter referred to as the "Nine People's Minutes"), in the section on "(IV) Corporate Personality Denial" in "2. Trial of Corporate Dispute Cases", details the content of the system of corporate personality denial and confirms the four principles applicable to the system of corporate personality denial. First, it can only be applied if the shareholders have committed an act of abusing the independent status of the company as a legal person and the limited liability of the shareholders, and the act has seriously harmed the interests of the company's creditors. Damage to the interests of creditors mainly refers to the abuse of rights by shareholders to make the company's property insufficient to pay off the claims of the company's creditors. causal logic] Second, only the shareholders who have committed the abuse of the independent status of legal persons and the limited liability of shareholders shall bear joint and several liability for the company's debts, while other shareholders shall not bear this liability. subject scope limit] Third, the denial of corporate personality is not a comprehensive, complete and permanent denial of the company's legal personality, but only in specific cases based on specific legal facts, legal relations, breaking through the general rule that shareholders are not responsible for the company's debts, exceptionally ordered to bear joint and several liability. The res judicata of the judgment of the people's court denying the personality of the company in the individual case only binds the parties to the action, does not apply to other litigation involving the company, and does not affect the survival of the company's independent legal personality. If other creditors file a corporate personality denial action, the facts found in the effective judgment can be used as evidence. res judicata range limit] Fourth, the abuse provided for in article 20, paragraph 3, of the Companies Act, which is common in practice in situations such as mixed personalities, excessive dominance and control, and significant undercapitalization. When trying a case, it is necessary to make a comprehensive judgment based on the facts of the case identified, which is not only prudent to apply, but also when used. case enumeration] In addition, when discussing the situation of "excessive domination and control" in detail, the Jiumin minutes clearly states that "controlling shareholders or actual controllers control multiple subsidiaries or affiliated companies, abuse control rights to make the property boundaries of multiple subsidiaries or affiliated companies unclear, financial mixing, mutual transmission of interests, loss of personality independence, and become controlling shareholders to evade debts, illegal operations, or even illegal and criminal tools, the facts of the case can be integrated, deny the legal personality of the subsidiary or related company, and order joint and several liability". The paragraph states that, on the one hand, the subject scope of the denial of legal personality extends to the controlling shareholder and the actual controller, and on the other hand, further clarifies the feasibility of reverse denial and horizontal denial. The Main Controversies in 3. Judicial Practice Corporate personality denial has its independent value and significance in practice, from the legislative and judicial value orientation, not only to maintain the principle of corporate independence represented by the personality denial system, but also can not make the independence of legal personality become the "wall of sighs" for shareholders to abuse their rights ". Therefore, the application of the system of personality denial in judicial practice is in a state of caution and permission. Generally speaking, the focus of the dispute mainly lies in the following aspects: (I) lack of legal basis The current legal provisions of the Company Law only provide for forward denial, and it is difficult to quote the judicial decision as a legal basis for reverse denial or horizontal denial, and if the third paragraph of Article 20 of the Company Law is applied directly, there is a suspicion of judicial creation of law. (II) whether there is a necessity to apply The significance of the denial of legal personality is that when the shareholders abuse the independent status of the company's legal person so that the company's property is not enough to pay off the claims of the company's creditors, if the legal person veil can not be pierced, it will lead to the creditor's rights and interests difficult to remedy. When the shareholders themselves have debts, creditors can protect their rights and interests in one or more ways, such as freezing and enforcing the shareholders' equity in the company, or exercising the creditor's right of avoidance, according to the law. It is controversial whether it is necessary to carry out reverse denial and force the company to bear joint and several liability for shareholders' debts. However, the author believes that in the case of freezing the company's equity only, shareholders may still dispose of the company's assets, complicating the way for creditors to remedy their rights and interests. In addition, when a company has both enforceable assets and a sizeable liability, the value of its equity may be low (or even zero), at which point creditors will not be able to be remedied by freezing the company's equity, while creditors' interests can be remedied by sealing up and enforcing the company's assets through the denial of legal personality. Whether the (III) results in the impairment of "bona fide" shareholders' equity The judicial jurisprudence of the Supreme People's Court has affirmed the application of the reverse denial of legal personality of a one-person limited company, and its reasoning part contains the statement that the company's joint and several liability to shareholders in this case will not harm the interests of others. However, the summary of the nine people defines the scope of abuse of right holders as "controlling shareholders or actual controllers". Article 20 of the Company Law and Article 21 of the Company Law (Revised Draft) define the scope of abuse of right holders as shareholders of the company, which indicates that the possibility of denial of legal personality in the case of multiple shareholders in the company has not been ruled out. At this time, the reverse denial or horizontal denial of legal personality is applicable, how to protect the rights and interests of other "bona fide" shareholders and extend the controversy and difficulty of legal personality denial from the "shareholder-creditor" level to the "shareholder-shareholder" and "controlling shareholder (actual controller)-small and medium-sized shareholders" level, further aggravating the controversy and difficulty of reverse denial and horizontal denial of legal personality in practice. 4. related cases (I) Case 1:(2020) Supreme Famin Shen No. 2158 Basic case: The defendant Zhongsen Hua Real Estate Company is a wholly-owned subsidiary of the defendant Zhongsen Hua Investment Company, Zhongsen Hua Investment Company in the acquisition of the third-party company held by the target company's equity, agreed to the Zhongsen Hua Real Estate Company to transform the construction of shops and other physical assets to pay the equity transfer. Later, the third-party company sued the court for compensation from Zhongsen Hua Investment Company and Zhongsen Hua Real Estate Company for the value of the store that could not be delivered under the contract. The Hubei Provincial Higher People's Court of the first instance held that although both Zhongsenhua Investment Company and Zhongsenhua Real Estate Company are registered as corporate legal persons, they are closely related. Zhongsenhua Real Estate Company is a project company initiated and established by Zhongsenhua Investment Company. During the period when Zhongsenhua Real Estate Company has more than two shareholders, Zhongsenhua Investment Company has an absolute controlling position. Zhongsenhua Investment Company has not submitted evidence to prove that the company's property is independent of the shareholder's property, and the two companies have mixed personalities and should be regarded as the same subject in law. The law stipulates that the shareholders shall be jointly and severally liable for the debts of the company, and vice versa, and the company shall also be jointly and severally liable for the debts of the shareholders. The Supreme Court supported the views of the court of first instance in the second instance and retrial review, and the retrial review ruling argued as follows: The original judgment of the (I) applied the above provisions to determine that Zhongsenhua Investment Company and Zhongsenhua Real Estate Company constitute a personality mix, and there is nothing improper. First of all, from the industrial and commercial registration, Zhongsenhua Real Estate Company is a one-person limited liability company. Since July 2013, the shareholder of China Senhua Real Estate Company is China Senhua Investment Company, with a shareholding ratio of 100. Secondly, in the original trial, although China Senhua Investment Company and China Senhua Real Estate Company respectively submitted industrial and commercial registration data, annual inspection reports, tax payment certificates and other evidence, it was not possible to determine the fact that China Senhua Real Estate Company is the project company of China Senhua Investment Company and the two companies promised to bear joint and several liability for the arrears of the project involved. The original judgment found that Zhongsenhua Investment Company, as a 100 per cent controlling shareholder, did not adduce sufficient evidence to prove that the property of Zhongsenhua Real Estate Company was independent of each other and was not improper. Third, Zhongsenhua Real Estate Company is a real estate project company established by Zhongsenhua Investment Company for the development of the Zhongsenhua International City project. At the beginning of its establishment, Zhongsenhua Real Estate Company was effectively controlled by Zhongsenhua Investment Company and its shareholders. It can be seen from the resolution of the shareholders' meeting of Zhongsenhua Real Estate Company and the "entrusted loan contract" of Changfu Fund, Huaxia Bank and Zhongsenhua Real Estate Company that Zhongsenhua Real Estate Company and Zhongsenhua Investment Company jointly undertake to bear joint and several liability for the debt settlement of the real estate project involved in the case. Although Zhongrong International Trust Co., Ltd. held a short-term 100 per cent stake in Zhongsenhua Real Estate Company, it later changed its registration to Zhongsenhua Investment Company. Fourth, although the provisions of Article 63 of the Company Law are that shareholders bear joint and several liability for the company's debts, in the current judicial practice, the company can also bear joint and several liability for the shareholders' debts in the case of the mixing of shareholders and the company's personality. The original judgment of the (II) found that the Store Transfer Contract and the Supplementary Agreement were valid and not improper. The above-mentioned agreement between Zhongsenhua Investment Company and Aerospace Bellows Company specifies the specific subject matter of the equity transfer price to be paid in kind. The original judgment found that Zhongsenhua Investment Company had the right to dispose of the real estate developed in the name of Zhongsenhua Real Estate Company, which was not improper. Zhongsenhua Real Estate Company on the grounds that it is not the subject of the contract, in violation of the principle of contract relativity, etc., argues that it should not be liable, and the Court does not support it. (II) Case 2:(2020) Ji 11 Min Zhong 27 Basic case: The two defendants Baijin Company and Baifu Company are all limited liability companies with natural person Li Jing as the sole shareholder. On December 13, 2015, the plaintiff Juhua Company borrowed 10 million yuan from Seascape Company, and Budweiser Company and Li Jing provided guarantee. The plaintiff sued for a judgment that the second defendant was jointly and severally liable for the debts incurred by Li Jing as a result of the above-mentioned loans. In this case, the court of first instance and the court of second instance have very different views. the court of first instance (the people's court of taocheng district, hengshui city, hebei province) held: regarding the relationship between the defendant baijin company and li jing. First, Li Jing is the guarantor in the mortgage agreement signed by Budweiser Company, Li Jing and the plaintiff, but the bills mortgaged by Li Jing are owned by the defendant Baijin Company and endorsed and transferred to the plaintiff by Baijin Company. Therefore, Baijin Company is liable for Li Jing's personal debts with its own property. Second, according to the facts found in the civil judgment No. 1269 (2016) Ji 11 min zong made by Hengshui municipal people's court, baijin Company borrowed money from Gucheng County Yinxin Microfinance Co., Ltd., but all the loans were transferred to Li Jing's personal account, and part of the interest was also paid to Gucheng County Yinxin Microfinance Co., Ltd., which shows that the defendant Baijin Company used Li Jing's personal bank account. According to the above two facts, it can be seen that the assets of the defendant Baijin Company cannot be distinguished from Li Jing's personal property, and it should be determined that Li Jing's personal property is mixed with the assets of the defendant Baijin Company. Regarding the relationship between the defendant Baifu Company and Li Jing. According to Article 63 of the Company Law, when the creditors of shareholders claim to deny the corporate personality of the company and require the company to bear joint and several liability for the debts of shareholders, the company shall bear the burden of proof for the independence of property. In this case, the defendant Baifu Company did not provide evidence to prove that his property is independent of Li Jing's personal property, and it should be determined that the assets of the defendant Baifu Company and Li Jing are mixed. Because Li Jing's personal assets are mixed with the assets of the defendant Baijin Company and Baifu Company, which can not guarantee the company to implement the principle of capital maintenance and capital unchanged, but also can not determine the difference between the shareholders' personal assets and the company's assets, and then affect the material basis for the company and shareholders to undertake to pay off debts, the legal personality of the defendant Baijin Company and Baifu Company is skeletal, the formation of Li Jing and the defendant Baijin Company, Li Jing and Baifu Company mixed into one situation, and its assets mixed has caused the interests of creditors can not be realized, so the defendant Baijin Company, Baifu Company should bear joint and several liability for the debts of Li Jing. The court of second instance (the people's Court of Hengshui City, Hebei Province) held that Article 63 of the Company Law stipulates that in the case of external liabilities of a one-person limited company, shareholders shall bear the debts of the company. In this case, Juhua Company required Baifu Company to bear joint and several liability for the debts owed by Li Jing personally on the grounds that the property of Li Jing was mixed with Baifu Company, which did not comply with the above-mentioned legal provisions. Therefore, even if Li Jing's personal property and Baifu's property are mixed, Juhua Company requires Baifu Company to bear joint and several liability for Li Jing's personal debts, there is no corresponding legal basis, and the Court does not support Juhua's claim against Baifu Company in this case. As for Baifu Company's appeal claim that Li Jing's personal property and Baifu Company's property are not mixed, Juhua Company's lawsuit in this case belongs to individual settlement and other claims, the Court will no longer be involved. Baijin Company did not appeal against the judgment of the first instance, which was a free punishment of its own civil rights, and the court upheld the judgment of the first instance that Baijin Company was jointly and severally liable for the debts owed by Li Jing. In summary, Baifu's appeal that it should not bear joint and several liability for Li Jing's personal debts was established, and the Court supported it. The first instance ruled that Baifu Company's joint and several liability for Li Jing's personal debts was an error of applicable law, and the Court corrected it. (III) Case 3:(2018) Liao 03 Min Zhong No. 3920 Basic facts of the case: This case is an enforcement objection. After the appellee Dongjian Engineering Company applied for enforcement due to a dispute with a third party Zongjun Real Estate Company over a construction contract, the court of first instance made an enforcement ruling on August 16, 2017,

2022-04-06

Viewpoint. The practical relationship between government procurement services and government procurement services -- from the perspective of legal service procurement of provincial budget units in Shandong Province.

As an important reform measure to innovate the way of providing government public services, promote the transformation of government functions and fully implement performance management, government purchase of services is an important institutional innovation of government procurement. In view of the subtle differences between the central budget unit and the local budget unit in Shandong Province in government procurement services and government purchase services, in order to accurately explain the practical relationship between the two and reflect the correlation between the two and specific industries, this paper only takes the legal service procurement of the provincial budget unit in Shandong Province as the perspective to discuss the government procurement services and government purchase services, in order to provide ideas and practical reference for government procurement and government purchase services. 1. Overview (I) the concept of government procurement and government purchase of services According to the provisions of the Government Procurement Law, 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 centralized procurement catalog formulated in accordance with the law or above the procurement limit standard; this law applies to government procurement within the territory of the People's Republic of China. Accordingly, the government procurement behavior should be defined from the aspects of the procurement subject, the source of funds, the centralized procurement catalogue and the procurement quota standard, the procurement target, the geographical scope and so on. According to the provisions of the measures for the Administration of Government purchase of Services (decree No. 102 of the Ministry of Finance), government purchase of services refers to the behavior that state organs at all levels hand over to qualified service suppliers in accordance with the methods and procedures of government procurement that fall within the scope of their own duties and are suitable for providing services through market-oriented means, and pay fees to them according to factors such as the quantity and quality of services; the specific scope and content of services purchased by the government shall be managed by guiding catalogues, which shall be made public in accordance with the law. It is generally believed that the government's purchase of services should be defined in terms of the purchasing subject and the guiding catalogue. (II) the connection and difference between government procurement services and government purchase services 1. In terms of subject, the subject of government procurement includes state organs, institutions and organizations. The main body of government purchases of services is state agencies. At the same time, party agencies, CPPCC agencies, democratic party agencies, institutions that undertake administrative functions, and group organizations that use administrative establishments should use financial funds to purchase services. 2. In terms of scope, government procurement projects are included in the centralized procurement catalog, as well as projects outside the centralized procurement catalog and above the procurement limit standard. In practice, the "Notice of the Shandong Provincial Department of Finance on Printing and Distributing the Centralized Procurement Catalogue and Standards of the Shandong Provincial Government" (Lu Cai Cai [2020] No. 30, hereinafter referred to as "Lu Cai [2020] No. 30") The procurement catalog contains 13 service items; government purchases of service items are items in the guiding catalog, the "Notice of the Shandong Provincial Department of Finance on Printing and Distributing the Guiding Catalogue of Services Purchased by the Shandong Provincial Government (2021 Edition)" (Lu Cai Cai [2021] No. 18, hereinafter referred to as "Lu Cai [2021] No. 18") The guiding catalog contains 232 three-level service catalogs. 3. In terms of budgeting, both government procurement services and government procurement services shall be budgeted in accordance with the law. In addition, the Shandong Provincial Department of Finance on the issuance<山东省政府购买服务管理实施办法>通知》（鲁财采〔2021〕10号，以下简称“鲁财采〔2021〕10号文”）、《山东省财政厅关于2022年省级政府采购和政府购买服务预算编制及执行的通知》（鲁财采〔2021〕22号，以下简称“鲁财采〔2021〕22文”）和《山东省财政厅关于2021年省级政府采购和政府购买服务预算编制及执行的通知》（鲁财采〔2020〕36号，以下简称“鲁财采〔2020〕36号文”）的规定，对政府购买服务项目同时属于政府采购的，政府购买服务项目预算应当与政府采购预算合并编制。   4.在采购方式和程序上，政府采购服务项目可以采用公开招标、邀请招标、竞争性谈判、单一来源采购、竞争性磋商、框架协议等6种采购方式，并依照相关的采购程序组织采购活动。政府购买服务项目原则上应当按照政府采购的方式和程序执行，但山东省地方购买主体购买政府集中采购目录外且采购限额标准以下的服务项目，可采用竞争性评审、定向委托等简易方式确定承接主体。   5.在合同类型的适用上，政府采购服务项目和政府购买服务项目的合同类型均应按照民法典规定的典型合同类别，并结合采购标的的实际情况确定。     二、法律服务的范围   （一）政府采购法律服务的范围   根据《政府采购法》及其实施条例的规定，服务是指除货物和工程以外的其他政府采购对象，包括政府自身需要的服务和政府向社会公众提供的公共服务。   财政部《关于印发<政府采购品目分类目录>(Caiku [2013] No. 189, hereinafter referred to as "the catalogue"), as an important administrative normative document regulating the application of centralized procurement catalogues, government procurement budgeting and other government procurement activities, has made specific norms on the relevant contents of legal services. According to the catalogue, "legal services" is a secondary item of business services, including legal litigation services, legal advisory services, legal aid services, intellectual property legal services, legal document agency services, notarization services, arbitration services, mediation services and 9 tertiary items of other legal services. Legal litigation services include criminal litigation legal services, civil litigation legal services, administrative litigation legal services, foreign-related litigation legal services and other legal litigation services; legal advisory services include criminal litigation legal advisory services, civil litigation legal advisory services, administrative litigation legal advisory services, foreign-related litigation legal advisory services and other legal advisory services; legal aid services include legal aid services for minors, legal aid services for vulnerable groups and other legal aid services; intellectual property legal services include trademark rights, patent rights, agency applications and other legal services; legal document agency services include contract document agency services, will document agency services, property document agency services, foreign-related legal document agency services and other legal document agency services; notarization services include contract notarization services, will notarization services, property notarization services, document and certificate notarization services, notarization services for identity and social relations, notarization services for public welfare activities and other notarization services; arbitration services include foreign-related arbitration services, economic arbitration services, labor arbitration services, patent and other intellectual property arbitration services and other arbitration services; mediation services include civil mediation services, labor mediation services and other mediation services. Other legal services include law-related investigation, evidence collection, identification services, etc. Scope of (II) Government Purchase of Legal Services According to the "Administrative Measures for Government Purchase of Services" (Order No. 102 of the Ministry of Finance) and the "Opinions of the Ministry of Justice and the Ministry of Finance on Establishing and Improving the Mechanism for Government Purchase of Legal Services" (Si Fa Tong [2020] No. 72, hereinafter referred to as "Si Fa Tong [2020] No. 72"), the scope of government purchase of legal services includes public legal services provided by the government to the public and auxiliary legal services required for the government to perform its duties. According to the provisions of Sifatong [2020] No. 72, the public legal services provided by the government to the public are mainly public, public, inclusive and comprehensive legal services provided by the government to citizens, legal persons and other organizations in order to protect and improve people's livelihood, promote grass-roots governance according to law, and maintain social harmony and stability. Including legal aid services; legal assistance services for lawyers on duty; village (residential) legal advisory services; rule of law publicity and education services; people's mediation services; public legal service hotlines, networks, and physical platform legal consulting services; public welfare lawyer mediation, lawyer agency complaints, Lawyers resolve legal and litigation-related petition cases; public welfare notarization, judicial appraisal services; arbitration committees participate in grassroots dispute resolution services; etc. According to the provisions of 2020 No. 72, the auxiliary legal services required by the government to perform its duties are mainly government legal advisory services and other auxiliary legal services provided by social forces such as lawyers and grass-roots legal service workers entrusted by the government, including participation in major decision-making, review of the legality of major law enforcement decisions, and provision of legal advice for major decision-making and major administrative acts; participate in the negotiation of cooperation projects, draft and modify important legal documents or contracts; participate in the handling of administrative reconsideration, litigation, arbitration and other legal affairs; provide legal services for the handling of law-related litigation cases, letters and visits, and major emergencies; participate in the rule of law Construction-related research, training, supervision, etc.; handle contract certification, rights confirmation, evidence preservation, on-site supervision and other notarization for administrative activities; etc. Although Lu Caicai [2021] No. 18 only stipulates "legal services" in the second-level catalog of the government's auxiliary service catalog, it includes "public welfare" in the "social security" second-level catalog of the basic public service catalog. Three items including basic legal services, implementation of legal aid projects, and legal aid for notarization and judicial appraisal. Therefore, the guiding catalogue of services purchased by the Shandong provincial government is included in seven three-level catalogues related to legal services, which are public welfare basic legal services, including public welfare legal advisers, consultation, defense, agency, notarization, judicial appraisal and other services for vulnerable groups, small and micro enterprises, rural collective economic organizations, villages (communities), and the implementation of legal aid projects, that is, to provide free legal services for parties with financial difficulties and in line with the scope of assistance matters or special cases; legal aid for notarization and judicial expertise; community (village) legal adviser services; administrative litigation agent response legal services, that is, administrative litigation agent response, Administrative reconsideration legal services; government legal advisory services; government legal advisory services. From the above-mentioned norms, different from the government procurement of legal services based on legal relations, the scope of government procurement of legal services highlights the public and public welfare, focusing on improving people's livelihood, serving the important goal of transforming government functions and improving the performance of financial funds. 3. the Practice of Legal Service Procurement of Provincial Budget Units in Shandong Province (I) Budgeting Lu Caicai [2020] 30 provisions of the centralized procurement directory, including the "legal services" items (code: C0801). Lu Caicai [2021] No. 18 also contains legal services related content. Therefore, different budgets should be prepared according to different subjects. State organs, party organs, CPPCC organs, democratic party organs, public institutions undertaking administrative functions and mass organizations using administrative establishment, it should be in accordance with the "Notice of the Shandong Provincial Department of Finance on the Preparation and Implementation of the Provincial Government Procurement and Government Purchase Service Budget in 2021" (Lu Caicai [2020] No. 36), and the "Shandong Provincial Department of Finance on the Provincial Government Procurement and Government Purchase Service Budget in 2022" "Notice on the Preparation and Implementation" (Lu Caicai [2021] No. 22) and other documents related to budgeting requirements, when purchasing legal services, the government procurement budget and the government purchase service budget should be combined. The provincial budget units in Shandong Province, which are other than the main body of government purchase services, need to prepare the government procurement budget if they use financial funds to purchase legal services. Selection of (II) procurement methods and procedures According to the provisions of Lu Cai Cai [2020] No. 30, legal services are included in the centralized procurement catalogue of local budget units in Shandong Province. According to the "Government Procurement Law" and its implementation regulations, Lu Caicai [2020] No. 30, Lu Caicai [2021] No. 10, and the "Shandong Provincial Finance on Printing and Distributing the Shandong Provincial Government Purchase Service Competitive Evaluation and Directional Entrustment Management Measures" Notice "(Lu Caicai [2020] No. 8), the provincial purchasers in Shandong Province can organize the procurement of legal services by means of public bidding, invitation to tender, competitive negotiation, single-source procurement, competitive consultation and framework agreement, but it is not appropriate to purchase legal services through competitive evaluation, directional entrustment and other simple methods. It should be noted that if the annual legal service procurement budget reaches more than 4 million, the public bidding procurement method should be adopted. Due to special circumstances, if it is necessary to adopt procurement methods other than public bidding, an application shall be submitted through the "Official Document Circulation" module of the "Shandong Provincial Government Procurement Management Transaction System" before the start of the procurement activity. Except for the single-source procurement application, which is reviewed by the Shandong Provincial Department of Finance, the other procurement method change applications are reviewed by the competent budget unit. In addition, for the purchase of legal services by means of framework agreement procurement, it should be noted that the first stage of the solicitation process and the conclusion of the framework agreement are the responsibility of the centralized procurement agency. At the same time, the "Interim Measures for the Administration of Shandong Provincial Government Procurement Online Shopping Mall" (Lu Cai Cai [2020] No. 34) and the "Notice of Shandong Provincial Department of Finance and Shandong Provincial Department of Justice on Further Doing a Good Job in Legal Service Designated Procurement" (Lu Cai Cai [2020] No. 34) stipulate that if the annual budget does not exceed 4 million yuan, it can be implemented through designated procurement in Shandong Provincial Government Procurement Online Shopping Mall. In the procurement mechanism, if the procurement budget amount does not reach 500000 yuan, the legal service organization can be determined through direct purchase or bidding. For more than 500000 yuan, the legal service organization shall be determined through bidding. (III) performance acceptance and performance evaluation (evaluation) State organs, party organs, CPPCC organs, democratic party organs, public institutions undertaking administrative functions and mass organizations using administrative establishment, in accordance with the requirements of laws and regulations such as the Government Procurement Law and its implementation regulations, the measures for the Administration of Government purchase Services (decree No. 102 of the Ministry of Finance) and the Circular of the Shandong Provincial Department of Finance on issuing the measures for the Administration of performance acceptance of Government Procurement (Lu Cai [2021] No. 25), the performance acceptance of the procurement of legal services shall be carried out, and the purchase of legal services shall be evaluated in advance. If the provincial budget units of Shandong Province, other than the main body of government purchase services, use financial funds to purchase legal services, they need to carry out the performance acceptance of the procurement legal services. 4. Conclusion All in all, there are obvious differences and close connections between government procurement services and government procurement services, especially in the system that connects the two. For example, the implementation, supervision and management of government procurement services are in accordance with government procurement laws., Administrative regulations and related systems are implemented. In practical operation, we should also realize that the subject of government procurement includes the subject of government purchase of services, and should be distinguished or competing in the application of relevant rules and procedural processing.</政府采购品目分类目录></山东省政府购买服务管理实施办法>

2022-04-06

Viewpoint | Information Disclosure Obligations of Related Parties to Bankruptcy Matters of Listed Companies-Interpretation of No. 13 and No. 14 of the Self-Regulatory Guidelines for Listed Companies on the Shenzhen Stock Exchange

On March 31, 2022, the "Shanghai Stock Exchange Listed Companies Self-Regulatory Guidelines No. 13-Bankruptcy Reorganization and Other Matters" and "Shenzhen Stock Exchange Listed Companies Self-Regulatory Guidelines No. 14-Bankruptcy Reorganization and Other Matters" will be implemented simultaneously. The above guidelines issued by the Shanghai and Shenzhen Stock Exchanges are basically the same. They mainly stipulate in detail the listed company's reorganization, reconciliation, and bankruptcy liquidation matters (collectively referred to as bankruptcy matters) from a regulatory perspective. The information disclosure obligations of related parties to bankruptcy matters such as senior executives, bankruptcy administrators and their members, creditors, and reorganization investors, and pointed out that listed companies that implement pre-reorganization and other procedures, as well as the bankruptcy of the controlling shareholder, the largest shareholder, subsidiaries and participating companies that have an important impact on the operation of the listed company, which may have a greater impact on the trading prices of the listed company's stocks and their derivatives, refer to the above guidelines to perform Information disclosure obligations. The above two guidelines are of great guiding and normative significance for us to deal with the bankruptcy of listed companies and their affiliated companies. In order to facilitate the operation, the author combed the information disclosure obligations and corresponding obligation subjects in the various stages of bankruptcy matters of listed companies stipulated in the guidelines. See the following table for details: Note: This table is a review for the purpose of intuitively understanding the content of information disclosure, and the specific provisions are subject to the content set out in the guidelines.

2022-04-02

Viewpoint | Determination of evidence of domestic violence in divorce proceedings

Basic case In September 2012, Hu and Chen confirmed their love relationship. The two registered their marriage on May 20, 2013 and had a daughter after marriage. After being dismissed by the unit in 2015, Chen became more and more irritable. He often fought against Hu because of family chores, and he would be driven out of the house every time he finished playing Hu. During the Spring Festival in 2017, after being drunk, Chen threw a knife at Hu because he was dissatisfied with Hu's failure to clean up the housework in time. Chen's behavior made Hu completely disheartened, and he took his daughter back that night. At his parents' home, Hu sued the court for divorce. After receiving the summons from the court, Chen immediately rushed to Hu's parents' house to squat. As soon as he saw Hu, he smashed his head with a blunt object. Hu called the police and made an injury appraisal. The court of first instance determined that Chen's behavior constituted domestic violence based on the evidence in the case, and the relationship between the two parties had indeed broken down, and the judgment allowed both parties to divorce. Chen refused to appeal, the court of second instance rejected the appeal and upheld the original verdict. Legal provisions Article 1079, paragraphs 2 and 3, of the the People's Republic of China Civil Code on Marriage and Family stipulates: "Divorce shall be granted if the relationship has indeed broken down and mediation is invalid. Divorce shall be granted if mediation is invalid under any of the following circumstances: (2) Domestic violence or maltreatment or abandonment of family members;" Lawyer Analysis Numerous cases show that there is only a difference between zero and numerous domestic violence. After being abused for the first time, the parties often do not realize the seriousness of the problem, and may even be moved by the perpetrator's subsequent repentance and compensation behavior, and then connive at their next violence. It can be seen that tolerance is a double-edged sword, and the compromise of the parties to domestic violence may bring irreparable harm to themselves. Therefore, the lawyer advises the client to collect and retain evidence in time to prove the existence of domestic violence after suffering domestic violence, because the implementation of domestic violence is one of the legal reasons for divorce. In the case of invalid mediation, even if it is the first time to sue for divorce, the court should also grant divorce. However, if the evidence of the parties is insufficient to determine the fact of domestic violence, in the trial practice, for the first time to sue for divorce, and there is no sufficient evidence to prove that the relationship between the two parties has indeed broken down, the people's court will often stand in the maintenance of marriage and family From the perspective of stability, the general judgment does not divorce. The ways for the parties to collect evidence can be divided into the following: 1. After suffering from domestic violence, they should directly report to the public security organ or seek help from the neighborhood (village) committee, government agencies, women's federations, work units, etc. In the future litigation, the parties may request the relevant departments to issue relevant certification materials, especially to apply for the police record, warning letter and introduction letter of injury examination of the public security organ. 2, keep the diagnosis certificate, case book, medical expenses bills, etc. The parties injured in domestic violence should go to the hospital in time. In addition, they should take photos at that time and keep the photos. The parties may also go to the appraisal center or entrust the Women's Federation to handle the injury appraisal work. 3. Keep the original audio-visual materials and repentance written after domestic violence. If conditions permit, the party concerned can make audio or video recording when suffering from domestic violence. If there is an eyewitness, he can apply for the witness to testify in court. At the same time, he should pay attention to keeping the letter of repentance written by the perpetrator after domestic violence. The evidence collected in the first way, especially the police records, warning letters and injury appraisal opinions of the public security organs, is the most powerful to identify the existence of domestic violence. If the party only submits medical records or photos of injuries, if there is no other evidence to strengthen them, it is difficult to determine that the injury is caused by spousal violence if the other party denies it.

2022-04-01

Real estate perspective: where is the small property right house? -- Analysis of the legal issues related to the small property right house

Since 2003, the concept of "small property room" has begun to enter people's lives. In theory, this is not a professional legal concept, but more like a special title in people's daily habits. As for the definition of "small property right house", there are many opinions in academic circles. The author combines relevant laws and regulations and his own work experience to define "small property right house" as follows: "it refers to the housing built on rural collective land, without paying the land transfer fee, without obtaining the housing ownership certificate issued by the national housing management department and used for sale". As the name implies, its relative concept is "large property right house", while large property right house refers to a house with a house ownership certificate issued by the national real estate administrative department, that is, a house with a real estate certificate. "Small" in 1. Legitimacy -- Small Property Right House and Illegal Construction Generally speaking, the "illegal construction" in the law refers to the construction of houses and facilities that are built outside the planning area without obtaining a construction project planning permit and in violation of the Land Management Law, the Urban and Rural Planning Law and other relevant laws and regulations. Therefore, from the perspective of the legality of housing construction behavior, small property houses can be divided into two categories: small property houses with illegal building procedures and small property houses with legal building procedures. For the convenience of distinction, the author calls the former "illegally built small property house", while the latter calls it "legally built small property house". (I) Illegal Construction of Small Property Houses-Characteristics 1. Such houses have not obtained the approval procedures for building land and construction planning, and the houses themselves are illegal construction; 2, such houses can not be legally registered original ownership of the house; 3. Such houses cannot be registered for the transfer of ownership of the house and obtain a certificate of ownership of the house; (in practice, a "certificate of ownership" is usually issued by the township or village committee to prove the so-called ownership of the house by the buyer); 4, the vast majority of village collective joint developers for external sales and construction. Small Property Houses Legally Built in (II)-Features 1. This kind of house itself is legally constructed, but because it is built on collective land without going through the land acquisition and transfer procedures, the house cannot be legally registered; 2. Such houses have de facto ownership, and the original takers of the houses are restricted to members of the collective economic organization; 3, this type of housing usually has a township or village committee issued a "certificate of property rights", in order to prove the ownership of property rights; 4. Some of these houses are built for external sales, and some are built for the villagers' own use, and then the villagers sell them to the outside world. (Note: The houses legally built by villagers on their homesteads do not belong to the category of small property houses referred to in this article, but if the villagers or village collectives sell their own legally built homesteads, they belong to the legal small property houses referred to in this article). To sum up, as far as small property rights houses are concerned, illegally built small property rights houses are illegal in land use, house construction, trading and other links; while legally built small property rights houses have passed the approval procedures such as rural construction planning permission and construction engineering construction permission, and the construction behavior is legal. Therefore, we can not generally think that the houses with small property rights are all illegal buildings and should be demolished, while the houses with small property rights are at greater risk of being forcibly demolished. "Small" in the Effectiveness of 2. Sale Contracts -- Analysis of the Effectiveness of Small Property Right House Sale Contracts Small property house legally built in (I) 1. The opposite party-urban residents: Article 10 of China's Constitution clearly stipulates that urban land belongs to the state. Land in rural and suburban areas, except for those owned by the state as stipulated by law, belongs to the collective; homesteads, private plots and private hills also belong to the collective. No organization or individual may appropriate, buy, sell or otherwise illegally transfer land. Article 2 of the Notice of the General Office of the State Council on Strengthening the Management of Land Transfer and Prohibiting Land Speculation (No. 39 [1999] of the State Council) stipulates: to strengthen the management of the transfer of farmers' collective land, it is strictly forbidden to illegally occupy farmers' collective land for real estate development; farmers' collective land use rights shall not be sold, transferred or leased for non-agricultural construction; farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, the relevant departments shall not issue land use certificates and real estate certificates for houses built and purchased in violation of the law. In addition, according to the "Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land", rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or houses with small property rights in the countryside. It can be seen that the law of our country clearly stipulates that rural houses can be allocated to the villagers of the village and the sale to urban residents is prohibited. Therefore, the contract of sale and purchase of small property houses by urban residents is generally recognized as an invalid contract. Related cases: Case 1:(2015) Hong Min San Zhong Zi No. 91 The judge's view in the civil judgment of the Intermediate People's Court of Nanchang City, Jiangxi Province: "Rural land, except for what is owned by the state by law, belongs to the collective ownership of farmers. The land attached to the demolition and resettlement houses in this case belongs to rural collective land. According to the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "," Rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or small property houses in the countryside ". Homesteads, farmers' houses or small property houses can only be transferred among members of the same rural collective economic organization, the act of urban residents buying farmers' houses in rural areas is not protected by law, and the sale is generally invalid. (Court of Second Instance) The" Housing Subscription Agreement "signed by Wang and Huang violated the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "that" rural residential land can only be allocated to villagers in the village., Urban residents do not get rural purchases of homesteads, farmers' houses or small property houses "and are invalid." Case 2:(2021) Yu 0329 Minchu No. 3446, Yichuan County People's Court, Henan Province, the judge's point of view in the civil judgment: "In this case, the land used in Yichuan County is the land collectively owned by the villagers of Zhongxi Village Committee, ...... The project has also passed the Yichuan County Rural Construction Planning Permit and Construction Permit, and the house involved is a small property house built legally. However, because the house involved in the case was a house with small property rights rather than a real commercial house, that is, a house with large property rights, and did not obtain a presale permit, the plaintiff Ding Yanli, as an urban resident and not a member of the collective economic organization of Zhongxi Village, did not have the qualification to purchase the houses built on the land collectively owned by the rural village, therefore, the" Yichuan Zhongxi Community Resettlement Housing Contract "signed by Ding Yanli and Hengtian Company is invalid because it violates the mandatory provisions of laws and administrative regulations." Of course, according to the actual situation, there are exceptions in judicial practice. If urban residents obtain the collective organization's household registration after signing the small property right house sales contract and are approved by the relevant departments, the house sales contract is generally recognized as valid. 2. The opposite party-members of other collective organizations: From the current judicial practice, the housing sales contract signed with the villagers outside the village tends to be invalid, and there are still judicial disputes. Related cases: Case 1:(2013) The judge's point of view in the civil judgment of the Intermediate People's Court of Ganzhou City, Jiangxi Province, No. 264: "The right to use rural collective land and homestead is a right enjoyed by members of rural collective economic organizations. It is related to the specific identity of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form. The subject matter of the" House Sale Agreement "signed between the original and the defendant is not only the house, but also the right to use the corresponding collective land homestead. The" Housing Sale Agreement "signed by the original and the defendant violates the mandatory provisions of relevant laws and regulations of our country and should be deemed as an invalid agreement. The main body of the right to use the homestead is the rural residents of the specific rural collective economic organization. Although the appellant yin mou's household registration is a rural household registration, he is a villager of XX group, XX village, XX township, chongyi county, and is not a member of the collective economic organization of XX new village, XX town, chongyi county. he does not have the qualification to use the homestead of XX new village, and the house sale agreement signed by both parties is a kind of house sale on collective land, and the house sale has not obtained the consent of XX new village, XX town, therefore, the house sale agreement signed between the appellant Yin and the appellee Zhong is invalid." Case 2:(2018) The judge's view in the civil judgment of the Intermediate People's Court of Xuzhou City, Jiangsu Province, No. 233 of Su 03 Minchu: "The land under this house is the collective land of Peng Er Group, Sanzha Village, Qing 'an Town, Suining County. The resident ID card submitted by Han Xiufeng stated that his address was No. 102, Xinzhou Lane, Suicheng Town, Suining County, Jiangsu Province, and now No. 160, Sun Zhao Zhao Village. If you are not a member of the collective organization, you cannot be transferred to the house involved, nor can you go through the real estate registration procedures of the house involved." From the current judicial practice, for the house sales contract signed with the villagers outside the village, it is more inclined to determine that the contract is invalid. But the basic spirit of the civil code contract is autonomy, honesty and credit. If it is confirmed that such a contract is invalid, the seller is likely to claim that the contract is invalid on the basis of land appreciation, demolition compensation and other reasons, so that buyers who abide by the principle of good faith suffer losses, thus damaging the social foundation of public order and good customs and good faith. Therefore, the author thinks that the principle of party autonomy should be respected, depending on the specific circumstances of the case to determine whether the contract is valid. Note: China's laws and regulations do not expressly prohibit the signing of housing sales contracts with members of the collective economic organization, and because of the legal property rights certificate, such houses can be transferred among the members of the collective economic organization, at the same time, through the circulation within the collective economic organization can also make full use of idle homesteads. Therefore, the contract for the sale of small property houses between the members of the collective economic organization is generally recognized as legal and valid. (II) for illegally built small property houses For the illegal construction of small property rights generally directly determine the contract is invalid, as the subject matter of the contract of sale of housing, that is, illegal construction of small property rights housing itself is illegal construction, can not occur the legal effect of the establishment of property rights, can not be transferred at all, as the subject matter of the contract can not be realized, can not have legal effect. Moreover, the vast majority of such illegal small property rights housing sales are carried out on the premise of harming urban planning and environmental protection, public welfare undertakings and township collective public interests. If the contract is determined to be valid, it is equivalent to encouraging illegal construction in disguise. Therefore, it is the basic principle to determine that the contract is invalid. 3. small property rights do have a big risk-small property rights housing purchase risk. Conclusion At present, there are a large number of small property houses in many parts of our country, especially in the township area. The high demolition cost and huge waste of resources make the country unable to solve the small property market thoroughly and effectively in the short term. Although the price of small property right houses is relatively cheap, there is no need to pay taxes and fees in the transaction process, there is no restriction on purchase and there is no need to worry about the expiration of property rights, but from the perspective of buyers and investors, especially for urban residents, if they do not know the specific housing situation information, it is risky to buy a small property right house only for a short time, so you must keep your eyes open and be cautious before buying a house.

2022-03-25

Viewpoint... On the legal issues of the wrong notification of the implementation of the objection ruling.

1. Introduction In judicial practice, there are situations in which outsiders raise enforcement objections and the enforcement court makes enforcement objections but mistakenly informs the remedies. In this regard, combined with legal provisions and relevant judgment cases, the enforcement objections examine whether the substantive rights and interests claimed by the outsiders are sufficient to exclude the people's court from enforcement. The enforcement objections examine whether the court's enforcement actions conform to the law and whether they infringe the legitimate rights and interests of the objectors. If the enforcement objection ruling wrongly informs the enforcement objection relief channel, in principle, the enforcement objection ruling shall be revoked and remanded for retrial. Review of 2. Action of Objection to Execution and Action of Objection to Execution Objection to (I) the act of execution 1. The subject of the objection to the execution act. The subject of the objection to the execution act may be an outsider or a party to the case. 2. Time limit for raising objections to the execution act If the parties or interested parties believe that the execution violates the provisions of the law, they may submit a written objection to the people's court responsible for the execution. If a party or interested party raises a written objection, the people's court shall examine it within 15 days from the date of receipt of the written objection. The objection to the execution act shall be raised before the conclusion of the execution procedure, and the execution objection ruling may be made in the course of execution and the execution of the preservation and advance execution of the ruling. 3. Circumstances in which an objection to an act of execution is raised The law provides for the circumstances in which an outsider can object to the enforcement act. Specifically, an outsider can object to the enforcement act in the following five circumstances: 1. Those who believe that the enforcement act of the people's court is illegal and prevent them from waiting for seizure, seizure, or freezing to be paid; 2. Those who believe that the auction measures of the people's court are illegal and prevent them from participating in fair bidding; 3. Those who believe that the auction, sale or debt-for-kind measures of the people's court are illegal and infringe on their right of first refusal to purchase the subject matter of execution; 4. Those who believe that the matters requested by the people's court for assistance in execution exceed the scope of their assistance or violate the provisions of the law; 5. Those who believe that other legitimate rights and interests have been infringed by the people's court's illegal execution. From the above provisions, it can be seen that the examination of the objection to the execution behavior is whether the execution behavior of the court conforms to the legal provisions and whether it infringes the legitimate rights and interests of the objector. The specific provisions can be found in Articles 5 and 6. 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts. 4. Remedies for objections to the execution of acts If the parties or interested parties are not satisfied with the ruling on the objection to the execution of the act, they may apply to the people's court at the next higher level for reconsideration within 10 days from the date of service of the ruling. (II) exclusion of execution objections 1. Legal concepts If an outsider raises an objection to the exclusion of enforcement on the basis of the entity's rights, the procedure must be reviewed by the enforcement objection after a formal review of the enforcement objection because it involves a review of the rights and interests of the outsider's entity and the need to weigh whether the protection of the outsider's rights and interests takes precedence over the protection of the rights and interests of the applicant for enforcement. The action of the execution objection examines whether the entity interest of the outsider in the subject matter of the execution is sufficient to exclude enforcement. 2, exclude the implementation of the objection period. The objection to the exclusion of execution shall be raised before the termination of the execution of the subject matter of execution to which the objection is directed; if the subject matter of execution is assigned by the parties, it shall be raised before the termination of the execution proceedings. The objection to the exclusion of execution may be raised at the stage of preservation in addition to the stage of execution. 3, exclude the implementation of the objection to the review period. The enforcement court shall complete the review within 15 days from the date of receipt of the enforcement objection. 4, exclude the implementation of the objection to the ruling of the remedy. An outsider or party to the case may, within 15 days from the date of service of the ruling, file a suit for objection to enforcement in the people's court. The remedy of the 3. error informing the remedy of the ruling of the execution objection. There are three ways to solve the problem of wrongly informing the remedy of the execution objection ruling in judicial practice. (I) relief way one: according to the relief way informed by the execution objection ruling, after entering the procedure, request the court to review and resolve the dispute of the relief way. There is a difference between the exclusion of an enforcement objection and an enforcement action objection, which is based on the exclusion of enforcement against the subject matter of the entity's interest in the subject matter of enforcement. The objection to the execution act is based on the existence of an interest in the subject matter of the execution and the damage to the rights and interests caused by the court's illegal execution act. Specifically, the exclusion of an enforcement objection is a necessary condition for the existence of an enforcement act against the subject matter of enforcement, and if the enforcement court mistakenly informs the outsider or the party in the enforcement objection ruling of the remedy, if the enforcement review procedure should have been initiated to resolve it, it is instead informed of the action to file an enforcement objection. In this regard, Article 105 of the judicial interpretation of China's Civil Procedure Law stipulates clear conditions for outsiders to file enforcement objections. In the stage of enforcement objections, it is necessary to examine whether it conforms to the legal circumstances of filing enforcement objections. In view of this, if you are not satisfied with the remedies set out in the execution objection ruling, you can file an execution objection suit or apply for execution reconsideration in accordance with the remedies set out in the execution objection ruling, and request a review of the compliance with the execution objection suit or whether the execution objection is filed after entering the procedure. In this regard, we can refer to Article 13 of the "Answers to Several Questions Concerning the Trial of Cases of Objection to Execution by the People's Court of Shandong High Court", which stipulates that "How to deal with the lawsuit filed by the parties against the execution act? Answer: If the parties only file an enforcement objection against the enforcement act, and do not request the exclusion of enforcement of the rights and interests of the claimed entity of the subject matter of enforcement, the ruling shall not be accepted; if it has been accepted, the ruling shall reject the prosecution and inform the parties to comply with the provisions of Article 225 of the the People's Republic of China Civil Procedure Law through the enforcement objection reconsideration procedure." Article 13 of the Jiangsu High Court's "Guidelines for the Trial of Cases with Objection to Enforcement" stipulates that "if the people's court is found to have incorrectly informed the remedy in the execution objection ruling during the trial of cases with objection to enforcement, how to deal with it? In the process of hearing the case of objection to execution, the people's court finds that the outsider raises an objection to the execution act, and if the enforcement department informs the outsider and the applicant to file an objection to execution in the execution objection ruling, it shall rule to reject the lawsuit and explain to the outsider and the applicant to resolve the case through the execution reconsideration or execution supervision procedure." (II) remedy 2: The remedy for the notification of the execution objection ruling is not an effective legal decision, so you can directly invoke the law to choose to file an enforcement reconsideration or enforcement objection, or apply for enforcement supervision and request a review of the remedy for the notification of the execution objection ruling. The second way of relief adheres to the view that Article 232 of the Civil Procedure Law is a way of relief granted by law, the execution objection ruling has not taken effect and the way of relief specified in the execution objection ruling does not belong to the judgment item, so the parties or outsiders of the case have the right to file a reconsideration of the execution objection ruling including the way of relief, or to file a claim for execution objection, or to take a way of relief for execution supervision. In this regard, the legal provisions that can be used for reference can be found in Article 72 of the provisions of the Supreme people's Court on several issues concerning the Enforcement of the people's Court (for trial implementation), which stipulates that "if the higher court discovers that the rulings, decisions, notices or specific enforcement acts made by the lower court in the course of enforcement are improper or wrong, it shall promptly instruct the lower court to correct them." Article 234 of the the People's Republic of China Civil Procedure Law stipulates that "in the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, it shall rule to reject it. If the outsider or party refuses to accept the ruling and considers the original judgment or ruling to be wrong, it, it, it shall proceed in accordance with the procedure." Article 3, (I), paragraph (IV), of the "Guide to Execution Supervision Cases" stipulates that "if you refuse to accept the execution objection ruling and fail to apply for execution reconsideration or file an execution objection lawsuit within the statutory time limit because it cannot be attributed to the complainant," the people's court may file a case for supervision if it reflects that the execution is illegal and there is no other legal execution relief procedure to file a complaint. The third way of (III) relief: if the dispute involved in the case does not mention the enforcement reconsideration or the enforcement objection, choose to directly file a lawsuit with the people's court with jurisdiction to solve the problem. The point of view of the third remedy is that the enforcement objection and the enforcement review procedure are only whether the rights and interests of the outsider to the subject matter of the execution are sufficient to exclude the enforcement and the legality of the enforcement act. If the claim is tort damages or liability for breach of contract, it can be resolved by another lawsuit. The "Several Opinions of the Supreme Court on the Reasonable Allocation and Scientific Operation of Enforcement Power" has clearly stipulated that "the seizure of the people's court has excluded the right to enforce the subject matter in another case". Therefore, if a tort claim against the enforcement applicant or the preservation applicant is brought on the grounds of tort damages, there will undoubtedly be obstacles to filing a case. If another lawsuit is filed to preserve the respondent or the person subject to execution to bear the liability for breach of contract, in the case of not involving the ownership of the subject matter, a separate lawsuit may be filed, after all, the enforcement objection and enforcement reconsideration do not review the breach of contract by the person subject to execution or the preservation of the respondent. Comparing the advantages and disadvantages of the three remedies, it can be found that the advantage of the first remedy lies in the legal issue of filing an enforcement reconsideration or enforcement objection in accordance with the remedy specified in the enforcement objection ruling, without worrying about the legal issue of the time limit for filing an enforcement reconsideration or enforcement objection. Because the time limit for the application of enforcement reconsideration or enforcement objection is legally exempt, once the wrong remedy is chosen, there may be a risk of litigation that the remedy is exhausted. The disadvantage is that choosing the wrong remedy may face litigation risks such as time-consuming cases, asset transfer to evade debts, and loss of equity remedies. The problem with the second remedy path is the difficulty of filing a case in the case of wrongly informing the remedy path of the execution of the objection ruling, after all, the form of filing a case by the filing court is different from the substantive review of the case. At the same time, it is also faced with the risk of litigation that causes loss of power once the wrong perception of the way to remedy the case. The third way of relief lies in the issue of property ownership of the subject matter of execution, which cannot be resolved by another lawsuit. Remedies under the Guidance of 4. Cases As for the wrong way to inform the remedy of the execution objection ruling, the judicial practice has the solution of way one and way two. If the dispute involved in the case is not resolved according to the correct remedy due to the wrong way to inform the party of the remedy of the execution objection ruling, the solution of revoking the execution objection ruling and sending it back for retrial is adopted in principle. Case 4 is the judgment case of the supreme law, and the judgment point is in the execution objection, if the execution objection ruling is wrongly informed of the remedy (the lawsuit for the execution objection should be informed but the execution reconsideration should be informed), the execution ruling should be revoked. Through the main text of the case, it can be found that the relief route taken in cases 1 and 3 is the first relief route, and the relief route taken in case 2 is the second relief route. In the searched cases, no judgment documents were found to directly correct the wrong remedy procedure in the enforcement objection lawsuit, enforcement reconsideration or enforcement supervision procedure. Such correction is also based on the large difference between the enforcement objection lawsuit, enforcement reconsideration and enforcement supervision procedure. The enforcement reconsideration procedure can be reviewed in writing, the enforcement objection lawsuit adopts the second instance final adjudication system, and the enforcement supervision procedure belongs to the petition relief method. Case 1: Case No. of the People's Court of Woyang County, Anhui Province:(2021) No. 6, 1621 Zhijian The main text of the judgment document: In the case of a private loan dispute between Wang Xiufang, the executor of the court's execution, and Zhang Kun and Deng Hongyan, the executor of the case, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After accepting the case, the court formed a collegial panel to review it according to law and made (2021) Wan 1621 Zhiyi No. 51 executive ruling on June 8, 2021. The Court found that the ruling was indeed wrong and conducted a review in accordance with the law, which has now been concluded. After examination, it was found that in the case of a dispute over private loans between Wang Xiufang, the executor of the court's execution, Zhang Kun and Deng Hongyan, the executor, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After examination, the hospital made an executive ruling (2021) Wan 1621 Zhiyi No. 51 on June 8, 2021: rejecting the objection of the objector Zhang Jiaqi. And inform the parties that the remedy is "if the outsider or the party is not satisfied with the ruling and thinks that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit to the people's court within 15 days from the date of service of this ruling." Zhang Jiaqi refused to accept, filed a lawsuit against the execution. After hearing, the Court held that the case should be essentially an objection to the execution of the act and should inform the parties of the right of reconsideration. Therefore, a civil ruling (2021) No. 5147 at the beginning of the Republic of Anhui 1621 was made: Zhang Jiaqi's lawsuit was rejected. No appeal was filed within the statutory time limit. This court holds that if the people's court seals up, detains or freezes the property of a third party in violation of the rules of judgment of property ownership, and the third party raises an objection to enforcement, it shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law. In this case, the house involved in the case is registered in the name of the objector, and the objection to the execution of the seizure raised by the objector shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law, and the parties shall be informed of the right of reconsideration in accordance with the law. The execution ruling of our hospital (2021) Wan 1621 Zhiyi No. 51 is indeed wrong and should be revoked. To sum up, the case was discussed and decided by the trial committee of this court, in accordance with Article 154, Paragraph 1 (11) of the the People's Republic of China Civil Procedure Law, the Supreme People's Court's decision on the People's Court's discovery of the pre-litigation preservation ruling made by the People's Court and the ruling made in the enforcement procedure. Errors and the People's Procuratorate's Reply on How the People's Court Should Deal with the Pre-litigation Preservation Rulings made by the People's Court (Fa Shi [1998] No. 17), the ruling is as follows: The 1. revoked the executive ruling of the hospital (2021) Wan 1621 Zhiyi No. 51; 2., this case will be reexamined and dealt with by this court. Case 2, Dalian Jinzhou District People's Court (2021) Liao 0213 Zhi Jian No. 3 Main document of the judgment document: in the case of dispute over the loan contract between the executor Dalian Jinzhou yinhai microfinance co., ltd. and the executor Shi fuzhong, the three complainants applied for objection to the execution of the court. after examination, the court issued (2016) Liao 0213 zhi yi 64 execution ruling on November 8, 2016 and served it to the three complainants. On April 15, 2021, the Trial Committee decided that (2016) Liao 0213 Zhiyi No. 64 enforcement ruling was wrong in applying the law and informing the objector of the legal remedy, and the enforcement supervision procedure should be initiated to correct it. After the case was filed, a collegial panel was formed in accordance with the law to review it, and the review has now been concluded. After examination, on November 16, 2014, the court issued (2014) Jin minchu zi no 2066 civil judgment, which ruled that the defendant (subject to execution) Shi fu was loyal to the plaintiff (subject to execution) within 10 days after the judgment came into effect.

2022-03-25

Administrative Litigation Vision (V) | Administrative Litigation Third Party

Foreword The current administrative procedure law and judicial interpretation provide for the third party system in administrative litigation. The third party in administrative litigation has its unique legal status. In practice, the grasp of the third party is based on the interest relationship with the administrative act or the result of the treatment. The third party in administrative litigation should be determined according to the corresponding standards and conditions. Correctly understanding and grasping the third party system of administrative litigation is of great significance for properly handling administrative litigation cases that require the participation of third parties. 1 The legal characteristics of the third party in administrative litigation. Article 29 of the "the People's Republic of China Administrative Litigation Law" (hereinafter referred to as the "Administrative Litigation Law") stipulates: "Citizens, legal persons or other organizations have an interest in the accused administrative act but have not filed a lawsuit, or have an interest in the outcome of the case., You can apply to participate in the lawsuit as a third party, or the people's court notifies you to participate in the lawsuit. If the people's court judges a third party to assume obligations or impair the rights and interests of a third party, the third party shall have the right to appeal in accordance with the law." Article 30 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Litigation Law (hereinafter referred to as the "Applicable Interpretation") stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are responsible for the administrative act. If a lawsuit is filed if a person is not satisfied, the people's court shall notify other interested parties who have not filed a lawsuit to participate in the lawsuit as a third party. A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. A third party whose people's court has made a judgment that he has assumed obligations or derogated from his rights and interests shall have the right to appeal or apply for a retrial. If the third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that the legally effective judgment, ruling, or mediation agreement harms his legal rights and interests, he may, in accordance with the Administrative Procedure Law According to Article 90, within six months from the date when he knows or should know that his legal rights and interests have been damaged, apply to the people's court at the next higher level." According to the above provisions, the third party in administrative litigation refers to citizens, legal persons or other organizations other than the original or defendant who have an interest in the specific administrative act being sued and apply in their own name to participate in or participate in administrative litigation at the notice of the people's court. The third party in administrative litigation has the following legal characteristics: 1. The third party is a participant in the litigation other than the plaintiff and the defendant, and has an independent legal status. The purpose of participating in the litigation is not to safeguard the rights and interests of the plaintiff, nor to safeguard the rights and interests of the defendant, but to safeguard their own independent legal rights and interests; 2. The participation of a third party in the proceedings must be conducted before the administrative proceedings have been initiated and have not been concluded; 3. The third party's participation in the proceedings is by his own application or by notice of the people's court; 4. The third party's participation in the proceedings is based on an interest in the specific administrative act being sued; 5. The third party has the right to raise claims related to the case, which may be different from the claims of the plaintiff or the defendant, or consistent with the claims of one of the parties, and the third party has the right to appeal or retry against the judgment of the case. 2 Types of Third Party in Administrative Litigation According to the relevant provisions of the Administrative Procedure Law and the Applicable Interpretation, when a citizen, legal person or other organization acts as a third party in administrative litigation, it can be divided into a third party who has an interest in the administrative act made and a third party who has an interest in the outcome of the case. At the same time, in the case of adding the administrative organ as the defendant and making it easy to find out the facts of the case, the administrative organ can also participate in the litigation as a third party. In general, the third people in administrative litigation can be roughly divided into three categories: (I) a third person who has an interest in the administrative act The third person who has an interest in the administrative act refers to the third person who should have filed an administrative lawsuit but did not sue, thus participating in the lawsuit filed by other plaintiffs. The first paragraph of Article 30 of the "Applicable Interpretation" stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are dissatisfied with the administrative act and file a lawsuit, the people's court shall notify other interested parties who have not filed a lawsuit. Participate in the litigation as a third party." The third person stipulated in this article is the third person who has an interest in the administrative act. According to this article, a third party who has an interest in an administrative act must meet two elements: first, it has an interest in the administrative act, including the counterparty to the administrative act and other interested parties; and second, the interested party has not brought a lawsuit, thus participating in a lawsuit brought by others. According to the provisions of Article 27 of the "Applicable Interpretation", if the same administrative act involves two or more interested parties, it is necessary to join the litigation, and the court where the parties have not participated in the litigation shall notify them to participate. Article 28 of the Interpretation of Application stipulates: "When a people's court adds a party to a joint action, it shall notify the other parties. The plaintiff who should be added may not be added if he has expressly waived his substantive rights; if he is neither willing to participate in the proceedings nor waives his substantive rights, he shall be added as a third party, and his non-participation in the proceedings shall not hinder the people's court from hearing and adjudication of the case." Accordingly, a third party in a necessary joint action who is neither willing to participate in the proceedings nor waives substantive rights is a third party who has an interest in the administrative act. Therefore, the determination of the substantive elements of the third party who has an interest in the administrative act can be judged by reference to the standard of the plaintiff in the necessary joint action. With regard to the third party who has an interest in the administrative act, Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases stipulates: "After the people's court accepts the administrative case of housing registration, it shall notify the following interested parties who have not filed a lawsuit to participate in the administrative lawsuit as the third party: (1) the right holders specified in the housing register; (II) the right holders of the registered objection, correction and advance notice registration; (III) other interested parties that the people's court can confirm." The above-mentioned third person is the relative of the administrative act of registration made by the housing registration authority and has the qualification of plaintiff. Because no lawsuit has been filed, the people's court should be added as the third person. (II) a third person who has an interest in the outcome of the case The third party who has an interest in the outcome of the case refers to the person who has no interest in the accused administrative act and does not have the qualification of plaintiff, but the outcome of the case will have an impact on his rights and interests, which is similar to the third party who has no independent claim in civil litigation. The second paragraph of Article 30 of the "Applicable Interpretation" stipulates: "A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him to participate in the proceedings. The third party whose rights and interests are judged by the people's court to bear obligations or derogate from their rights and interests shall have the right to appeal or apply for a retrial." Different from the third party who has an interest in the administrative act, the third party who has an interest in the result of the case does not meet the qualification conditions of the plaintiff at the beginning. It is only to protect its legitimate rights and interests, simplify the litigation procedure, avoid the litigation burden, and at the same time, it is included in the scope of the third party in order to save judicial resources. In (2013) Qiongxing Zhongzi No. 169 case, a municipal people's government entrusted an urban construction investment company to carry out the infrastructure construction of a comprehensive development project of an international eco-tourism area, and the two sides signed an agreement. The municipal government issued a land expropriation announcement and signed a land expropriation compensation agreement with the village collective including the village group where villager A is located. Villager A's land is within the scope of expropriation, but Villager A does not cooperate with the inventory confirmation of the young crops. In the case that the municipal government's land department issues a notice to them to clean up the young crops on their own within the time limit and they do not clean up on their own within the time limit, the municipal government will remove the young crops. A brings an administrative lawsuit against the administrative enforcement of the municipal government. At this time, can an urban construction investment company participate in the lawsuit as a third party? First of all, an urban construction investment company is not the counterpart of the government's enforcement action, and the enforcement action does not have any adverse effect on its rights and interests, so it is not a third party with an interest in the administrative action. Secondly, if the court confirms that the enforcement behavior is illegal, because of the particularity of the subject matter of the administrative act in this case, that is, young crops, the court cannot judge to restore the original state, and should judge to compensate for the losses. Unless an urban construction investment company and a municipal government agree that this situation will hinder the implementation of the agreement, otherwise the judgment result of compensation for losses will not affect the municipal government's implementation of the agreement, therefore, in this case, an urban construction investment company does not have an interest in the verdict, and it should not participate in the litigation as a third party. However, if villager A files an administrative lawsuit based on his disobedience to the land expropriation compensation agreement signed between the municipal government and the village collective, although an urban construction investment company has no interest in the administrative act of signing the land compensation agreement, if the court decides that the land expropriation compensation agreement is invalid or not applicable to villager A, then the municipal government has no right to expropriate the land or the land of A, an urban construction investment company will not be able to carry out project development and construction according to its agreement with the municipal government, which will inevitably affect the performance of the agreement between the two parties. In the case of (2017) Supreme Law Xing Shen No. 195, the Supreme Court held that the stipulation that "those who have an interest in the outcome of the case may apply to participate in the proceedings as a third party, or the people's court shall notify them to participate in the proceedings" should clearly include at least: (1) the third party is determined, and all possible rights or interests related to the case cannot be the third party; the (II) interest is determined, and not all possible rights and even interests related to the case are interested. Otherwise, it is not only easy to cause improper trial of other disputes in this case and disturb the normal progress of administrative litigation, but also easy to cause the case to be delayed for a long time and affect the stability of relevant administrative legal relations. (III) administration as a third party The second paragraph of Article 26 of the "Applicable Interpretation" stipulates: "If the defendant should be added and the plaintiff does not agree to the addition, the people's court shall notify him to participate in the litigation as a third party, except where the administrative reconsideration agency is a co-defendant." According to this article, in addition to the law of the reconsideration organ as a co-defendant, the court must add him as a defendant, and other co-defendants who do not agree to the addition shall participate in the proceedings as a third party. In addition, for administrative organs that were not originally defendants in cases, judicial precedents also give them the qualification to act as third parties in litigation. (2016) In the case of Supreme Law Application No. 2907, the Supreme People's Court held that other administrative organs related to the accused administrative act participated in the lawsuit as a third party, which usually belongs to a kind of simple auxiliary participation. Especially in cases involving approval act, pre-act, auxiliary act, administrative contract and exceeding authority, other administrative organs were allowed to participate in the lawsuit as a third party. For finding out the facts of the case and clarifying legal responsibilities, it is more positive. (2017) In the case of Supreme Law Xing Shen No. 2289, the Supreme Court held that although Article 26, paragraph 5, of the Administrative Procedure Law stipulates that "the entrusted administrative organ is the defendant for administrative acts committed by organizations entrusted by administrative organs", the people's court may allow organizations entrusted by administrative organs to participate in the proceedings as co-defendants or third parties if it is more convenient to find out the facts of the case. In the case of (2018) Supreme Law Xing Shen No. 5313, the Supreme People's Court held that the Liangwu villagers' group should take Qingyuan Municipal Government as the defendant if it refuses to accept the above reconsideration decision and file a lawsuit in the people's court. If Yangshan County Government can participate in the lawsuit as a third party, it will be more conducive to finding out the facts of the case. However, the failure of Yangshan County Government to participate in the lawsuit in the lawsuit does not violate the law. 1. the law. In the above cases, the administrative agency is not the defendant in the administrative litigation, but its participation in the litigation is conducive to finding out the facts of the case and will not adversely affect the parties, so the Supreme Court recognizes that it can participate in the litigation as a third party. 3 The Litigation Rights of the Third Party in Administrative Litigation (I) participation in proceedings According to the provisions of Article 30 of the applicable interpretation, the people's court shall notify the third party who has an interest in the administrative act to participate in the proceedings. A third party who has an interest in the outcome of the case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. If the people's court should notify but does not notify, or should agree but does not agree, resulting in a third party's failure to participate in the proceedings, it belongs to the party who omitted the necessary participation in the proceedings. According to Article 109 of the "Applicable Interpretation": "If the original judgment omits the parties or litigation requests who must participate in the litigation, the people's court of second instance shall rule to revoke the original judgment and send it back for retrial." In the case of (2020) No. 5 of the Supreme Law Bank Compensation, the Supreme Court held that: Dongfang Municipal Government had previously identified Dao Xi Forest Farm, Huangning Village and Bashuo Village as the right holders of the expropriated land, and the 31 group of Xiaoling Village claimed that part of the expropriated land belonged to it, which would inevitably conflict with the ownership of the expropriated land by at least one of the above three villages, it is bound to infringe on the interests of at least one of the expropriated subjects. 1. the court of second instance does not notify the above three subjects to participate in the litigation, it directly confirms the relevant land ownership dispute, which may infringe on the legitimate rights and interests of outsiders. Therefore, the 1. of the second instance judgment belongs to the omission of the parties who must participate in the proceedings. In this case, the court should notify a third party to participate in the proceedings without notice. (II) the third person's right of appeal The second paragraph of Article 29 of the "Administrative Litigation Law" stipulates: "If the people's court decides that a third party assumes obligations or impairs the rights and interests of a third party, the third party has the right to appeal in accordance with the law." Similar to the provisions of the Civil procedure Law, "the third party who bears civil liability in the judgment of the people's court has the litigation rights and obligations of the parties", the law gives the third party the conditional right of appeal, and only when the judgment has an adverse effect on it, the third party has the right to appeal. Because the third party is not a litigant in the narrow sense after all, and the original defendant in a different litigation status, should have different litigation rights. One of the purposes of the establishment of the third party system is to reduce litigation and save judicial resources. If the third party's litigation rights are not restricted, the case may be delayed for a long time, contrary to the purpose of the establishment of the third party system. Of course, based on the purpose of the third-party system to safeguard the rights of interested parties, if the judgment is detrimental to the rights and interests of third parties, they should be given the right to appeal. (III) the right of retrial of the third person The third paragraph of Article 30 of the "Interpretation of Application" stipulates: "If a third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that a legally effective judgment, ruling or mediation agreement harms his legal rights and interests, he may, in accordance with the provisions of Article 90 of the Administrative Procedure Law, know or should know that his legal rights and interests have been harmed, apply to the people's court at the next higher level for a retrial." In this regard, the Supreme Court in (2018) the Supreme Law.

2022-03-25

Viewpoint | Determination of "Trajectory" in the Crime of Infringing Citizens' Personal Information

1. Criminal Law and Related Judicial Interpretations on the Crime of Infringing Citizens' Personal Information and "Trajectory" Provisions and Legislative Intent 1. Article 253 of the the People's Republic of China Criminal Law stipulates that anyone who, in violation of relevant state regulations, sells or provides citizens' personal information to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. Whoever, in violation of the relevant provisions of the State, sells or provides to others the personal information of citizens obtained in the course of performing their duties or providing services shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. Whoever steals or unlawfully obtains the personal information of citizens by other means shall be punished in accordance with the provisions of the first paragraph. Where a unit commits the crimes mentioned in the preceding three paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of those paragraphs. 2. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringing Citizens' Personal Information stipulates that "citizens' personal information" refers to all kinds of information recorded electronically or in combination with other information that can identify the identity of a specific natural person or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, whereabouts, etc. Article 5, paragraph 1, item (III), stipulates that those who illegally obtain, sell or provide more than 50 articles of whereabouts information, communication content, credit information and property information shall be deemed as "serious circumstances" as stipulated in Article 253 of the Criminal Law; the second paragraph stipulates that the acts specified in the preceding paragraph shall be carried out, if the quantity or amount reaches more than ten times the standards specified in subparagraphs 3 to 8 of the preceding paragraph, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 253-1 of the Criminal Law ". 3. The track of whereabouts belongs to highly sensitive information. The crime of infringing on citizens' personal information sets the threshold of "track of whereabouts" lower than the conviction threshold of ordinary citizens' personal information. This article stipulates that the determination standard of "track of whereabouts" has a great impact on the conviction and sentencing of such cases. The purpose of setting a separate conviction standard for the track of whereabouts is to strengthen the protection of citizens' personal and property safety, only when the complete travel route of the victim is known can it pose a major threat to his person and property, and only knowing the real-time point can not reach the degree of harm of obtaining the "track. According to a single point, it is impossible to reflect the final location of the victim. Only by gathering the points on a route can we get complete information about the place and destination of the victim. Obtaining complete travel information may cause damage to the victim's personal and property, and obtaining a single point cannot reach the corresponding degree of harm. If only the number of points is directly used as the number of tracks for conviction and sentencing, it violates the principle of criminal responsibility, and violates the original intention of the legislation and judicial interpretation of this crime. The 2. "trajectory" should refer to a "line" dynamic trajectory consisting of a start point and an end point rather than a static "point", which is in line with the general public's perception. When laws, regulations and judicial interpretations do not explain the meaning of "whereabouts", stricter standards should be adopted compared with general personal information on the issue of what is "whereabouts" and how to determine "numbers. According to the principle of modesty and restraint of criminal law, comprehensive consideration should be made from the literary interpretation of "whereabouts" and the general understanding of the public in daily life practice. "Trajectory" refers to the traces left by the action, and "trajectory" refers to the total path through which a point moves in space. According to the text, a "track" should refer to a complete action path formed by a point moving from the starting point to the end point in space. "Trajectory" should refer to a linear dynamic trajectory with a start point and an end point, rather than a static real-time point of the victim. It is generally believed in 3. criminal law circles that "line" rather than "point" should be used as the standard for identifying "track". 1. Professor Zhang Mingkai's Criminal Law (Law Publishing House, 2021, p. 1202) believes that the trajectory information should have certain time and space characteristics, especially the starting point and the ending point, which should last for a period of time from the starting point to the ending point. However, even if the actor acquires the static real-time point, due to the extremely short time and the lag of the return information, it is too late to commit acts that infringe personal legal interests such as injury. 2. Professor Gao Fuping's article "Obtaining Tracing Trajectory and" Sentencing "published in Shanghai Legal Daily in 2017 pointed out that" Tracing Trajectory is the trajectory formed by people moving at different points in time and in different geographical locations. ". 3. Professor Wang Wenhua pointed out in his article "Criminal Law Protection of Citizens' Personal Information in the Internet Age" published in "People's Procuratorate" in 2017 that "personal information includes not only" identity information "but also" activity information "such as whereabouts, such as personal whereabouts information of citizens obtained after mobile phone positioning. The former is static information and the latter is dynamic information." According to the theoretical explanation, the "trace trajectory" should have the characteristics of continuity, dynamics and integrity, and the linear trajectory is more in line with the characteristics and connotation of the "trace trajectory" than the point positioning. The meaning of "trajectory" in other 4. departmental regulations and government working documents is linear dynamic trajectory. China's relevant laws and regulations related to the protection of personal information, government documents related to the new crown epidemic prevention, there are similar expressions of "whereabouts", which represents the general understanding of "whereabouts" by government agencies and the public, and can be used as a reference for the standard of "whereabouts" in the crime of infringing upon citizens' personal information. 1. According to the third paragraph of Article 26 of the Interim Measures for the Administration of Online Taxi Reservation Service, except for cooperating with state agencies to exercise supervision and inspection rights or criminal investigation rights in accordance with the law, the online car-hailing platform company shall not provide any third party with drivers. Personal information such as the names of drivers, drivers and passengers... travel routes. Among them, the dynamic "travel route" as a whole is identified as the personal information of the passenger. 2, during the new crown epidemic prevention and control in many places epidemic prevention and control headquarters, CDC issued the "trace trajectory investigation letter", which has a complete starting point, the end of the linear trajectory as the "trace trajectory" identification criteria. Among them, the "whereabouts track" is the information that can completely reflect the starting point, end point and important place of the party's journey, rather than the real-time point information of the individual. 5. jurisprudence has explicitly interpreted the "trajectory" as a "linear dynamic trajectory". 1. The criminal judgment (2020) No. 39 at the beginning of the punishment of Anhui 1182 issued by the people's Court of mingguang city, Anhui Province shows that in this case, the public prosecution organ accused the defendant of obtaining a total of 2356 pieces of information on the whereabouts of the victim, of which 2041 pieces of information are the repeated position information of the victim in a static state. In the judgment, the court deducted the above-mentioned information in the static state, and finally found that the defendant obtained the whereabouts and trajectory information of the victim as 323. 2. The (2019) Beijing 02 Criminal Final No. 59 Criminal Judgment issued by the Beijing Second Intermediate People's Court stated that the defendant in this case used his work to sell the citizen Didi Chuxing records obtained in the process of providing services for profit. Among them, "Didi Chuxing" record is a round-trip record of taking transportation. The court of first instance identified the "drop travel" record as "track information", and the court of second instance upheld the original judgment. 6. epilogue Based on the above analysis, we believe that the crime of infringing on citizens' personal information about "obtaining the number of tracks of others" should follow the general understanding of "tracks of tracks" and should not be based on static real-time points, but should be based on the number of linear dynamic tracks for conviction and sentencing.

2022-03-21