Examples of retrial | Can the parties apply for retrial and file a protest against the retrial judgment?

Brief description of the case In the case of a private lending dispute between Zhang and Zhao, Zhang lent ten million yuan to Zhao in 2012 without agreeing on interest. During the loan period, both parties paid interest at 20% of the annual interest rate. During the period, the two parties had other economic exchanges. In 2018, the two parties re-issued a debit note, recording that Zhang lent RMB 10 million to Zhao, with no agreed interest, and in actual performance, Zhao repaid a fixed amount of RMB to Zhang every month (for which the two parties are in dispute over whether the principal or interest of the repayment). After the dispute between the two sides, in 2020 Zhang as a creditor to the people's court to claim the remaining loan principal and interest. Zhao filed a counterclaim, requesting a judgment on Zhang's return of the over-paid loan and interest. After the case was heard by the 1. court of second instance, the court of second instance upheld the judgment of first instance and ordered the debtor Zhao to pay the remaining principal and interest of the loan. Zhao believes that the second trial judgment is wrong and applies to the court for a retrial. After accepting Zhao's application for retrial, the people's court rejected his application for retrial. Zhao still refused to accept the judgment of the second instance and applied to the people's Procuratorate for procuratorial supervision. The people's Procuratorate filed a protest with the court. After the retrial of the trial supervision procedure, the people's court revoked the judgment of the second instance and changed the judgment that Zhang returned the principal and interest of the overpaid loan to Zhao. Creditor Zhang is not satisfied with the retrial judgment. At this time, can Zhang apply to the court for retrial or protest to the people's procuratorate? Is there any other remedy? 1. in this case, Zhang cannot apply to the court for a retrial, nor can he apply to the procuratorate for a protest After the judgment of the second instance of the (I) comes into effect, the appellant, the appellee and other parties to the case have the right to apply for a retrial in accordance with the law for the judgment and ruling of the second instance that has taken effect. Both parties may have the right to apply for a retrial within the statutory time limit. If both parties apply for a retrial, the retrial court shall examine the case together and make a judgment. When one party applies for a retrial within the statutory period and the other party fails to apply for a retrial within the statutory period, its right to apply for a retrial has been extinguished due to the expiration of the statute of limitations. After the termination of the trial supervision procedure caused by one party's application for retrial, the procedural rights of all parties to apply for retrial against the legally effective second-instance judgment and ruling have been eliminated, and the other party will not reserve the right to apply for retrial to the retrial court for another time because the other party has not exercised the right to apply for retrial within the statutory period. Therefore, once the retrial judgment is made, neither party has the right to apply for retrial. Article 383 of the Interpretation of the Supreme People's Court of the (II) on the Application of the the People's Republic of China Civil Procedure Law (2020 Amendment) stipulates that "If a party applies for retrial under any of the following circumstances, the people's court shall not accept it: 1. The application is filed again after the application for retrial has been rejected; 2. An application for a retrial judgment or ruling; 3. The application is filed after the People's Procuratorate has made a decision not to submit a retrial procuratorial proposal or protest against the application of the party. Under the circumstances specified in items 1 and 2 of the preceding paragraph, the people's court shall inform the parties concerned that they may apply to the people's procuratorate for retrial procuratorial suggestions or protests, except for judgments and rulings made in retrial due to the people's procuratorate's retrial procuratorial suggestions or protests." The above provisions are the legal basis for the retrial judgment not to apply for retrial, nor to apply to the procuratorate to protest. Combined with this case, because Zhao was not satisfied with the judgment of the second instance, he applied to the court for retrial. After the people's court rejected his application for retrial, he applied to the people's Procuratorate for protest. The protest organ believes that there is an error in the judgment of the second instance, and after submitting a protest to the people's court, the people's court initiates the trial supervision procedure and changes the judgment. The respondent Zhang believes that the facts of the court of second instance are clear and the legal evidence is applicable. Zhang is not satisfied with the retrial judgment and cannot apply for retrial or apply to the procuratorate for protest. 2. on the way to initiate retrial proceedings ex officio The retrial procedure is an important way for the people's court to correct errors. The retrial procedure can be initiated on application, by the procuratorate, or ex officio. The method of initiation is different, and the trial supervision procedures applied are also different. Article 205 of the the People's Republic of China Civil Procedure Law (amended in 2021) stipulates that "if the presidents of the people's courts at all levels find that there are definite errors in the judgments, rulings or conciliation statements that have taken legal effect in their courts and believe that a retrial is necessary, they shall submit them to the adjudication committee for discussion and decision. If the Supreme People's Court finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a local people's court at all levels, or a people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a people's court at a lower level, it shall have the right to bring it up for trial or instruct a people's court at a lower level to retry". The provisions of this article are that the court initiates the retrial procedure according to its functions and powers. If the president of the court discovers a legally effective judgment, ruling or mediation statement and finds that there is a definite error, the president shall submit it to the members of the judicial committee for discussion and decision; if the people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of the people's court at a lower level, it shall have the right to bring the right to trial or instruct the people's court to retrial. Specifically in this case, the creditor Zhang is not satisfied with the retrial judgment made through the procuratorate's protest, and may not apply for retrial, nor may he apply for the procuratorate's protest. If the retrial judgment is indeed wrong, the president finds that the retrial procedure is initiated. In practice, the president finds that the retrial procedure is started. First, the parties concerned should submit the application form and relevant evidence. After the president of the court finds that there may be errors in the original effective judgment, he submits it to the trial committee for discussion. The trial committee decides that the retrial of the case is based on the trial supervision procedure, it is not an inevitable procedure, let alone a way to initiate a retrial based on the subjective judgment of the parties. Finally, if the parties are not satisfied with the effective judgment and want to start the trial supervision procedure through the president, how to submit the materials and in which way to receive the materials are not completely unified by the local courts.

2022-03-21

Point of View... Practical identification difficulties when committing rape.

Rape cases, which can be said to be the simplest and most complex type of cases, have always attracted public attention more easily than other cases. Say it is simple, because you know a little about wind and moon; Say it is complicated, because you don't understand other people's wind and moon. In such cases, in addition to the typical situation of obvious violence, coercion or other methods against women, in many cases, how to determine whether sexual behavior is against the will of women or violates women's sexual autonomy is one of the most difficult proof problems in judicial practice. The crime of rape in our country is defined as: violence, coercion or other means, against the will of women, forced to have sexual intercourse with them. The most important point of knowledge in this definition is against the will of women. What is meant by going against a woman's will? Obviously, it's not easy to define. This is not only because women's will belongs to the content of people's inner world, belongs to the connotation of facts rather than external facts, it is difficult to prove by direct proof, generally only through objective evidence to infer the way to reflect. What is more complicated is that most of these crimes occur in private space, often with only the two parties involved and no third person, so it is difficult to obtain evidence. Moreover, due to the complexity, diversity and variability of human behavior, sometimes the external obedience or resistance is difficult to reflect the true psychological thoughts and subjective will of the parties. In this case, it is difficult to convince one party to be guilty by the confession of one party alone. What's more, violating the will does not mean disagreement, and the scene of violating the will is also more common in life. For example, students are unwilling to do their homework, but they choose to write under the pressure of teachers and parents. This is actually against the will; businessmen are unwilling to pay taxes, and eventually pay, which is also against the will. Therefore, to determine whether a person constitutes rape, in the absence of conclusive evidence to prove it, it is impossible to form a fair judgment only by violating the will. In most cases, the situation of Rashomon will occur. So, under what circumstances can rape be identified? It is generally believed that as long as there is evidence to prove that women do not know, can not or dare not resist, it can be identified as against the will of women, but in practice is not simple. The author believes that the following two aspects should be paid attention: First, the point in time to determine the violation of a woman's will should not be before or after the occurrence of sexual behavior, but should be when and during the occurrence of sexual behavior. Because sexual behavior is a continuous process, sexual autonomy belongs to personal rights rather than property rights, which is special. Consent before or at the beginning of sexual activity cannot be considered as a woman's approval of subsequent behavior. Because women have the right to claim sexual autonomy at any time, whether before or during the course of sexual behavior, once the woman is unwilling to continue the relationship, and the perpetrator chooses to continue against the will, it can be deemed to be against the will of the woman. Second, the criterion for violating women's will should not be whether women are willing, but whether women act or choose to make under the premise of free will. Against the will and against the will are two concepts. A woman's consent to have a relationship with the perpetrator may be against her will, not under the circumstances of her willingness, but as long as the sexual relationship with the perpetrator is a choice made under the circumstances of the freedom of the woman's will, it should be considered as not violating the will of the woman, otherwise, it should be considered as against the will of the woman. The real difficulty in practice lies in this. Not only because this is a connotative fact, under normal circumstances, the two sides will hold their own words, and the version of the story is completely opposite, but under what circumstances can it be determined that it is against the will of women, whether it is their voluntary choice or forced to do it? in fact, there is a lack of objective and unified judgment standards, and the different understandings between different judgment subjects will also cause great controversy. What should we rely on to judge? The author thinks that we should judge according to the objective evidence left before, at and after the crime, and rely on the proof method of inference. 1. Before the crime The review of almost every rape case starts from this part. At this stage, we should focus on the cognitive process of both parties before the crime, the length of time and the familiarity of both parties to judge women's cognitive ability of sexual relations. Whether the two parties have emotional foundation? Whether they can have sexual relations naturally? It is the key problem to be solved at this stage. "Logic is more credible than words", and some objective details may become the winner or loser of the case. 2. At the time of the crime The location selected at the time of the crime, the means taken by the perpetrator in the process, the situation of conversation, the way and frequency of sexual relations, the injury of women, the situation of calling for help and so on are important factors to judge the resistance ability of women in the process of sexual relations. All behaviors can be traced, and the performance of women in the process of the crime can best reflect the subjective mentality. The on-site investigation and the collection of material evidence at this stage are the top priorities in the case review. 3. After the crime After the incident, women's emotions, treatment methods, whether to call the police, through whom to call the police, the reaction time of the police, physical examination, etc., are the focus of judging women's psychology. Especially when the sexual relationship is known by a third person (husband, boyfriend), when judging the logic of women's statement, we should fully consider the factors that the psychological state of women who report to the police afterwards may be interfered and influenced by others. The above judgment method has its advantages, but it also has its defects. The reason why there is no unique standard to confirm the composition of rape is that human nature is too complex, especially human life. How should such cases be handled? The author believes that when handling such cases, especially judging whether the sexual relationship is a choice made by a woman under the free will of a woman, neither can it be judged completely from the standpoint of a woman, nor can it be replaced by the choice made by an ordinary person in this situation. The judgment of the will at that time should be comprehensively determined based on the evidence in the case, based on the overall process of the case, combined with the cognitive ability, resistance ability, past experience and other individual factors of the victimized women, judge whether the behavior of the perpetrator is enough to affect the freedom of will of the victimized women under the specific situation, so that they can make involuntary choices to have a relationship with the perpetrator under the situation of ignorance, inability and dare not resist. At the same time, refer to how ordinary people choose in similar situations to test and judge whether it conforms to the general rules of experience and common sense, this is to meet the standard of clear facts and sufficient evidence.

2022-03-18

Viewpoint... Analysis of the legal issues of factoring contract disputes after the implementation of the Civil Code.

Introduction With the gradual scale of factoring business, disputes involving factoring contracts have gradually emerged. Since the dispute of factoring contract is a relatively new type of dispute, generally involving two contracts and three parties between the factoring agent and the creditor of accounts receivable under the factoring contract, and between the creditor of accounts receivable and the debtor under the basic contract, there is a gradual cognitive maturity process for the handling of the dispute involving factoring contract from the cause of action, jurisdiction, subject to the handling of the rights and obligations of the entity, its positioning has gone through from a loan contract dispute or an unnamed contract dispute to a consensus positioning of an unnamed contract dispute. After the Civil Code came into force, factoring contracts were regulated as a typical class of well-known contracts, providing a direct source of law for judicial decisions. This paper only discusses the legal issues related to the rights of recourse factors. The object and scope of the rights claimed by the 1. recourse agent. Article 766 of the Civil Code: Where the parties agree to have recourse factoring, the factoring agent may claim the return of principal and interest on factoring financing or the repurchase of the accounts receivable claim from the accounts receivable creditor, or claim the accounts receivable claim from the accounts receivable debtor. If the factoring agent claims an accounts receivable claim from the accounts receivable debtor, and if there is a surplus after deducting the principal and interest of the factoring financing and related expenses, the surplus shall be returned to the accounts receivable creditor. It can therefore be concluded that the agent may claim: 1, the agent to the creditors of accounts receivable to claim the right to repurchase accounts receivable, that is, to require creditors to "claim the right to the debtor's accounts receivable" to buy back; 2. The factoring agent separately claims recourse to the accounts receivable creditor for the principal and interest of the factoring financing, I .e., the creditor is required to continue to perform the obligation of settlement against the balance of the principal and interest of the factoring financing that the creditor fails to obtain settlement from the debtor; 3. The factor separately claims to the debtor of the accounts receivable within the scope of the accounts receivable that has been transferred but not paid, that is, the right to require the debtor to pay the accounts receivable in full and on time in accordance with the agreement of the underlying transaction contract. Can the 2. factor's recourse to the creditor and the debtor's claim coexist? In the course of the performance of a recourse factoring contract, the factoring agent, in order to maximize the recovery of the claim, often chooses to take the creditor and debtor of the accounts receivable as the defendant and file a lawsuit in the people's court together. With regard to the manner and order in which both creditors and debtors are liable when they are sued at the same time, both referees have expressed two views: first, the debtor of accounts receivable bears the first-in-the-line payment responsibility. A supplementary relationship is established between the factor's claim for payment to the debtor and the recourse to the creditor, and the creditor assumes supplementary liability to the extent that the debtor cannot be paid. Second, the factor does not extinguish the claim for payment of accounts receivable by claiming recourse. [Guiding Case] (2018) Supreme Famin Re -192 The gist of the decision: If the factor has not been paid off at the expiration of the agreed repayment period, the factor has the right not only to request the debtor of the underlying contract to pay off its debts, but also to recover from the creditors of the underlying contract, and the debtor of the accounts receivable bears the first-in-line repayment responsibility, and the creditor bears the corresponding supplementary liability. The court held that: in this case, the Bank of China New District Branch is at the same time to the Golden Eagle Company to claim recourse, but also to Tianhui Company, Huale Company to claim accounts receivable claims. Although the Bank of China New District Branch claimed to multiple debtors at the same time based on different legal relationships, they were all within the scope of the factoring legal relationship with only one purpose, namely, to recover the factoring financing funds provided to Golden Eagle. Therefore, the case should be consolidated and the order and scope of liability of each debtor should be determined on the basis of the legal relationship between the parties. The court of second instance rejected BOC New District Sub-branch's lawsuit against Tianhui Company and Huale Company and Huale Company's counterclaim against BOC New District Sub-branch on the grounds that the loan guarantee contract dispute and the creditor's rights transfer dispute were not based on the same legal fact and the same legal relationship and could not be tried together under the circumstance that the handling did not conform to the characteristics of factoring legal relationship and separated the internal connection between various legal relationships, this increases the litigation burden of the parties and is not conducive to the integrated settlement of disputes, which is corrected by this court. With regard to the order and scope of responsibility of each debtor, since Tianhui Company and Huale Company are the payers of the accounts receivable, they shall first assume responsibility for the payment of the transferred portion of the accounts receivable to the Bank of China New District Branch; if the relevant amount cannot be paid off, Golden Eagle Company shall continue to assume supplementary liability to the Bank of China New District Branch. Can the 3. factoring's claim to the creditor and the claim to the debtor coexist? There is a dispute in practice at present. Viewpoint 1: If a factoring agent sues a creditor in a separate case to claim a repurchase claim, the factoring agent's claim to the accounts receivable creditor for a repurchase right cannot coexist with the claim to the accounts receivable debtor. [Guiding Case] (2017) Supreme Fa Min Shen No. 132 The gist of the decision: Because the factor has required the creditor to assume the repurchase liability through the proceedings, the corresponding debtor's accounts receivable is transferred to the creditor, the creditor obtains the part of the claim, the debtor and the factor corresponding to the repayment obligation should be waived, the factor has no right to claim the accounts receivable from the debtor. The court held that, according to the Agreement on Factoring and the Application for Factoring Financing, the case was buyout factoring, and Pudong Development Bank was granted the accounts receivable claims of Bay Day against Zhonglian, and Pudong Development Bank became a creditor of Zhonglian. Thereafter, Wantian issued a Letter of Commitment to Pudong Development Bank, promising that if Zoomin fails to fulfill its payment obligations in full within the maturity date of the financing, Wantian will assume repurchase responsibility for the accounts receivable transferred to Pudong Development Bank under the Factoring Agreement, and the subject of its repurchase is still the claim on the accounts receivable. Therefore, whether Pudong Development Bank requests debt settlement from Zhonglian Company or repurchase from Wantian Company, it is based on the same accounts receivable claim. In the absence of a separate agreement between the parties, Pudong Development Bank can only choose one claim. According to the ascertained facts, Pudong Development Bank has requested Wantian Company to bear the repurchase responsibility for the accounts receivable creditor's rights in another case, and the effective judgment of the other case has already supported its claim. Under such circumstances, Pudong Development Bank no longer enjoys the accounts receivable creditor's rights against Zhonglian Company, so Pudong Development Bank has sued Zhonglian Company for the lack of claim basis for the debts in this case. Viewpoint 2: Whether the factor can claim a repurchase right from the accounts receivable creditor and a claim from the accounts receivable debtor can coexist depends on whether the action brought by the factor in a separate case should be found to have exercised the right to terminate the contract of assignment of claims. [Guiding Case] (2017) Supreme Famin Re -164 Referee gist: If the factor advocates the creditor of the underlying transaction to repurchase the accounts receivable, it is essentially advocating the termination of the factoring contract. After the termination of the factoring contract, the factoring ceases to have the status of a creditor of the receivables and it no longer has the right to claim payment of the receivables from the debtor of the underlying transaction, I .e., the factoring's repurchase claim against the creditor cannot coexist with its claim against the debtor. If the factor claims to the creditor in a separate case that it is not a repurchase of the receivables, but a return of the factoring financing, the factor will still have the right to claim payment of the receivables from the debtor until the principal and interest of the factoring financing are fully paid. However, in the case of the factor claiming rights to both the creditor and the debtor, the satisfaction or partial satisfaction of the debt by either party of the creditor and the debtor shall be relieved of the other party's obligation to pay off accordingly, so as to avoid the factor's double payment of the same claim. The court held: the question of whether Zhuhai China Resources Bank's right to anti-assignment of accounts receivable against Guangzhou Dayou Company could coexist with its claim against Jiangxi Fuel Company. The legal effect of the agent's anti-assignment of claims to the creditor's rights shall be recognized in accordance with the law as the termination of the contract of assignment of claims and the return of claims to the transferor, so the anti-assignment of accounts receivable shall be adjusted by the relevant provisions of the General Provisions of the the People's Republic of China Contract Law on contract termination. The agreement in the Domestic Factoring Contract that after Guangzhou Dayou Company returns the factoring financing funds and related outstanding expenses, all rights related to the accounts receivable shall also be transferred back at the same time, and Zhuhai China Resources Bank has the right to notify Guangzhou Dayou Company of the anti-transfer of creditor's rights in the case of Jiangxi Fuel Company's failure to perform its repayment obligations shall be interpreted as the agreed termination conditions of the creditor's rights transfer contract involved in the case. Therefore, in the case of the fulfillment of the termination conditions agreed in the contract, if Zhuhai China Resources Bank counter-transfers the creditor's rights to Guangzhou Dayou Company, it no longer has the creditor status of Jiangxi Fuel Company after the termination of the creditor's rights transfer contract, and its right basis for asking Jiangxi Fuel Company to pay off the debts no longer exists, therefore, Zhuhai China Resources' right of anti-transfer to Guangzhou Dayou Company and its claim to Jiangxi Fuel Company cannot coexist in legal nature. Accordingly, whether Zhuhai China Resources Bank's claim to pay off the debts of Jiangxi Fuel Company in this case can be supported depends on whether its separate lawsuit should be deemed to have exercised the right to terminate the contract of assignment of claims and return the claims to Guangzhou Dayou Company. In this case, the court held that in the process of claiming the rights of Zhuhai China Resources Bank, there was no written document to prove that it had expressed the intention of anti-transfer of claims to Guangzhou Dayou Company. Moreover, judging from the actual situation of the series of litigation actions carried out by Zhuhai China Resources Bank, its real meaning is to insist that Jiangxi Fuel Company and Guangzhou Dayou Company bear the debts at the same time. The core demand is to require Guangzhou Dayou Company and Jiangxi Fuel Company to jointly repay the loans owed, which has never included the intention of returning the creditor's rights to Guangzhou Dayou Company. Therefore, the Court found that the rights claimed by Zhuhai China Resources Bank in a separate lawsuit were in nature a right of recourse to require Guangzhou Dayou Company to repay the loan, not a counter-assignment of the claim. Jiangxi Fuel Company's lawsuit that Zhuhai China Resources Bank has transferred the accounts receivable involved in the case to Guangzhou Dayou Company has no corresponding factual basis, and this court will not accept it. The original judgment did not conform to the actual situation of the case that Zhuhai China Resources Bank had actually exercised the right of action against Guangzhou Dayou Company and that it no longer enjoyed the accounts receivable claim against Jiangxi Fuel Company. If Zhuhai China Resources Bank's real intention was to terminate the creditor's rights transfer contract, it would no longer insist on filing a lawsuit in this case claiming that it no longer had the right, and the court corrected the determination. Conclusion The last two cases are basically the same. The key lies in whether the factor has exercised the repurchase right. If it sues the creditor alone, the trial practice will tend to think that it has exercised the repurchase right and no longer enjoys the claim against the debtor. If the factor sues both the creditor and the debtor, the judge generally tends to think that the factor is exercising its claim against the debtor and its recourse against the creditor. In the event that the debtor fails to pay the principal and interest on the accounts receivable in full and on time, it is more advantageous for the factor to claim recourse to the creditor for the factoring financing rather than a repurchase claim.

2022-03-16

Viewpoints. The impact and guidance of the Civil Code on the consumer protection system.

《民法典》出台前，我国已形成以《消费者权益保护法》为核心的消费者权益保护制度，其中：1993年10月31日颁布的《消费者权益保护法》通常被称为“综合性消费者保护法”，集中地反映了消费者与经营者之间的权利义务关系，规定了消费者的九项基本权利（包括消费者的安全权、知情权、选择权、公平交易权、依法求偿权、结社权、受教育权、受尊重权和监督权）；《产品质量法》、《食品卫生法》、《食品安全法》、《广告法》、《反不正当竞争法》、《反垄断法》等通常被称为“单项消费者保护法”，对消费者的各项基本权利和经营者的各项基本义务进行了细化和延伸。   基于前民法典时代消费者权益保护的立法传统，考虑到消费者保护兼具公法性与私法性，为了民法体系化的需要，借鉴域外立法例，我国《民法典》最终没有将《消费者权益保护法》整体纳入法典，而是通过总则编、合同编、物权编、侵权编等规定了消费者保护的相关内容，并采用了“一般规定 + 特殊授权”的立法模式。《民法典》第一百二十八条规定：“法律对未成年人、老年人、残疾人、妇女、消费者等的民事权利保护有特别规定的，依照其规定”，从制度上确立了消费者保护法以私法为基本属性，进一步明确了《民法典》与消费者保护法的基本法与特别法的关系，即《民法典》对消费者权进行一般保护，由单行法对消费者权进行特别保护。标志着我国消费者权益保护制度的进一步完善，消费者权益保护力度的进一步升级。   《民法典》作为消费者权益保护制度的基本法，为消费者权益保护提供切实保障的同时，也对消费者权益保护制度起到深远影响和指引作用。首先，在法律原则上，纵观诸多消费者权益保护制度，无不体现着“诚信原则”这一民法基本原则的身影，要求经营者秉持诚实、恪守承诺、守法经营，这是维护社会和经济秩序，弘扬社会主义核心价值观的必然要求。在具体规则上，又通过“基本法——特别法——配套规定”的制度模式，细化和完善着对消费者权益保护，举例说明如下：     其一，《民法典》将“惩罚性赔偿”明确纳入民事责任，进而强化了惩罚性赔偿制度在消费者权益保护制度中的地位，为相关规定引入该制度提供立法指引，并提出了“惩罚性赔偿制度”体系化的要求。   我国民事法律体系中，最早规定惩罚性赔偿的就是《消费者权益保护法》，后又被其他与消费者权益保护密切相关法律规范借鉴，将其作为一般赔偿责任的例外。本次《民法典》的编纂，相比于《侵权责任法》第十五条列举的八种“承担侵权责任的方式”，第一百七十九条第二款明确规定“法律规定惩罚性赔偿的，依照其规定”，从而将惩罚性赔偿与填补性、预防性的一般责任承担方式置于并列的位置。当然，《民法典》第一百七十九条第二款作为指引性规定，需要法律有明确规定才得以适用惩罚性赔偿，目前消费者权益保护制度中，主要涉及的规定有：   ◆《消费者权益保护法》第55条（欺诈情形下，赔偿3倍价款或服务费、最低500元，经营者明知商品或者服务存在缺陷，赔偿2倍损失）； ◆ 《食品安全法》第148条（生产不符合食品安全标准的食品或者经营明知不符合食品安全标准的食品的，赔偿10倍价款或3倍损失）； ◆ 《旅游法》第70条（有履行条件，经要求仍拒绝，造成人身损害、滞留等严重后果的，赔偿1-3倍旅游费用）； ◆ 《最高人民法院关于审理旅游纠纷案件适用法律若干问题的规定》（法释〔2010〕13号）第17条（提供服务时欺诈的，赔偿2倍损失）； ◆ 《最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》（法释〔2003〕7号）第8条、第9条（隐瞒无（真实）许可证、已抵押、已卖给第三人或为拆迁补偿安置房屋的，一房二卖、又抵押，赔偿不超过已付价款１倍）、第14条（房屋面积小于约定面积并超过３％，面积误差比超过3％部分的房价款由出卖人双倍返还买受人）。   除其他法律规定的惩罚性赔偿外，《民法典》侵权责任分编第1207条规定了产品侵权责任中的惩罚性赔偿，规定“其中明知产品存在缺陷仍然生产、销售，或者没有依据前条规定采取有效补救措施，造成他人死亡或者健康严重损害的，被侵权人有权请求相应的惩罚性赔偿”，相比于《侵权责任法》第47条、《消费者权益保护法》第55条第2款，增加了“没有依据前条规定采取有效补救措施”这一情形，至于其中“相应的惩罚性赔偿”，有《消费者权益保护法》、《食品安全法》、《旅游法》等有明确规定的，应适用特别规定，没有特别规定的适用《民法典》第1207条，这给法院自由裁量权留有一定的空间，也有待其他规定的完善。   《民法典》将惩罚性赔偿明确纳入民事责任范围，并予以适当扩展，有助于缓解大量消费者侵权导致的负面影响，提升社会治理效率，在指引消费者权益保护制度明确惩罚性赔偿相关规定的同时，也应注意制度的体系性设计，以确保在术语界定、消费者主体资格的认定标准、侵权人与被侵权人主观状态应否（或如何）限制惩罚性赔偿、赔偿责任竞合时的处理等方面实现制度的逻辑自恰、适用标准的相对统一。     其二，《民法典》对格式条款的规定作出调整，拓展了《消费者权益保护法》的相关规则，为消费领域中订立格式条款的消费者提供了更为全面、有利的制度保障。   《民法典》第496条规定“格式条款的定入规则”，相比于《合同法》及《合同法司法解释（二）》：1.扩大了格式条款提供者提示说明义务的范围，增加了“与对方有重大利害关系的条款”的提示说明义务（应参考和吸纳了《消费者权益保护法》第26条的规定），即不限于免除或减轻其责任的条款，一切与对方有重大利害关系的条款均需尽到合理的提示说明义务；2.提高了提示说明义务的要求，不仅需要对方注意到相关条款，还需确保对方理解；3.明确了提示说明义务违反的法律后果，即对方可主张相关条款不作为合同的内容，其内在法理在于双方未就该条款达成“合意”，该条款因缺乏意思表示这一合同成立的要件而未成立。这相比于《合同法司法解释（二）》“可申请撤销”的规则，降低了诉讼成本、取消了撤销权行使期间的限制，从而更加简明、直接的保护了消费者的权利。   《民法典》第497条规定“格式条款的效力规则”，确定三种情况下格式条款无效，即违反民事行为效力规定的，排除对方主要权利的，以及不合理地免除或者减轻其责任、加重对方责任、限制对方主要权利的，需要注意的是，以上三种情形下格式条款均无效，至于是否解释说明在所不论。相比于《合同法》关于“提供格式条款一方免除其责任、加重对方责任”的格式合同一律无效的规定，《民法典》增加了“不合理地”这一限制条件，与此同时，增加了“减轻其责任”这一情形。   《民法典》第498条规定“格式条款的解释规则”，与合同法一致，即格式条款和非格式条款不一致的，应当采用非格式条款。   从目前《民法典》的相关规定看，并没有对消费者合同与商事合同的适用进行区分，但实践中两商事主体的合同纠纷主张适用该规则的，法院及仲裁机构往往持谦抑和谨慎的态度。格式条款规则最早就源于《消费者权益保护法》，故其应在消费者权益保护制服中的应用本身并无异议。但消费者权益保护制度可在《民法典》的立法指引下，从规则上体现消费者权益保护领域相比于其他商事领域，对消费者的特别保护，并针对不同应用场景进行类型化的划分，并对“重大利害关系”、“合理提示”、“对方理解”等的认定作出更有针对性的规定，比如：   1.如何界定“重大利害关系”？如争议解决条款是否有“重大利害关系”？最高人民法院2018年公布的《最高人民法院关于互联网法院审理案件若干问题的规定》第3条第2款规定:“电子商务经营者、网络服务提供商等采取格式条款形式与用户订立管辖协议的，应当符合法律及司法解释关于格式条款的规定。”   2.何种方式可认定为“合理提示”？通常需考察提示方式、时间、地点等，以保监会2012年2月23日颁布的《关于加强机动车商业保险条款费率管理的通知》为例，第2第2项和第3项规定了机动车商业保险条款的提示说明义务规范:“商业车险条款应当内容完整、格式清晰、方便阅读”。“保险公司应当在投保单首页最显著的位置，用红色四号以上字体增加‘责任免除特别提示’，对保险条款中免除保险公司责任等条款作出足以引起投保人注意的提示，并采用通俗易懂的方式，对该条款的内容以书面或者口头形式向投保人作出明确说明。保险公司应当提示投保人在投保单‘责任免除特别提示’下手书:‘经保险人明确说明，本人已了解责任免除条款的内容’并签名。”也有学者提出，应以格式条款对法律的背离度为标准，将之分为三类：未背离法律的盾式条款，无须提示即可纳入；背离法律推定的许可或弱豁免的剑式条款，经合理显著的概括提示可以纳入；背离法律明定的强许可或强豁免的钩式条款,在符合合理显著的提示标准之外,还须单独提示方可纳入。当然，这种细致规定恐怕不适合直接入法，但可以做规范性文件和司法指引。   3.何种情形可认定为“对方理解”？在“已知悉全部合同条款”的字样后签字，能否认定为“理解”？消费者手写“已理解上述须知的内容”，能否认定为“理解”？电子合同中在“已阅读”处打钩，能否认定为“理解”？以电子商务领域的格式合同为例，2014年7月30日国家工商总局发布《网络交易平台合同格式条款规范指引》（工商市字(2014)144号）第9条的规定，以及《电子商务法》第49条的规定，需在《民法典》的规则指引下，进行修正和完善，对电子商务领域的格式条款订入控制设置特别规则。         其三，《民法典》丰富和完善了个人信息保护规则，与《消费者权益保护法》、《个人信息法》、《网络安全法》等规定一起，全面构建了消费者个人信息保护制度，从而全方位保障消费者个人信息安全。   2013年修改《消费者权益保护法》，第一次将“个人信息受到保护”作为消费者权益予以确定，个人信息保护才进入民事法律规制范畴。（《消费者权益保护法》规定消费者在购买、使用商品和接受服务时，享有个人信息依法得到保护的权利；经营者收集使用消费者个人信息，应当遵循合法正当必要的原则，明示收集使用信息的目的方式和范围，并经消费者同意；经营者侵害消费者个人信息得到保护的权利的，应当承担相应的民事责任、行政责任等法律责任等。）   随着经济与科技的高速发展，APP、SDK（Software Development Kit，软件开发工具包）违规收集、处理用户个人信息的情况时常发生，对个人隐私保护构成严重威胁；个人信息非法交易猖獗，时刻侵害着消费者个人隐私；人脸识别等新技术的滥用为个人生物信息泄露埋下巨大隐患。诸多个人信息安全的乱象推动着个人信息保护制度的建设。   《民法典》回应上述热点问题和法治需要，在人格权编的第六章专设“隐私权和个人信息”一章，对个人信息保护问题进行了专门规范，结合总则编及人格权编一般规定，以及合同编、侵权责任编相关规定，构建了我国民事基本法中关于个人信息保护的制度框架和基础。《民法典》确立了“知情同意”的个人信息处理原则，经营者未告知用户收集个人信息的目的、方式、范围或未经用户同意，私自收集用户个人信息；未以显著方式标示或未经用户同意，将收集到的用户搜索、浏览记录、使用习惯等个人信息，用于定向推送或广告精准营销，且未提供关闭该功能选项的行为均构成对消费者权益的侵害，应承担相应责任。   在《民法典》的统领下，近年来，国家不断出台法律、法规保障个人信息安全。其中，2021年3年15日国家市场监督管理总局发布《网络交易监督管理办法》（2021年5月1日实施，国家市场监督管理总局令第37号），就对网络消费者个人信息的收集和使用做出了详细规定，以保护消费者个人信息安全。   2021年9月1日实施的《数据安全法》规定“任何组织、个人收集数据，应当采取合法、正当的方式，不得窃取或者以其他非法方式获取数据”，数据处理活动不得损害“个人、组织的合法权益”。   2021年8月20日发布、11月1日生效的《个人信息保护法》，作为我国第一部保护个人信息的单行立法更是补缺了我

2022-03-15

Civil and Commercial Perspective... The drafting and performance of the bequest.

Brief of the case Uncle Zhang and Aunt Wang have three daughters and a son, all three daughters have daughters, and the son has a son. . Uncle Zhang and Aunt Wang love their grandson very much and want to leave their own property to their grandson after a hundred years. How can we make Uncle Zhang and Aunt Wang get what he wants? Lawyer Advice In this case, Uncle Zhang and Aunt Wang can write a bequest in their own hands, with grandparents as bequeaths and grandsons as recipients, and grandparents indicating in the bequest that their property will be owned by their grandchildren after a hundred years. It is important to emphasize here that it must be a bequest rather than a will, because the grandson is not his legal heir and does not fall within the scope of testamentary succession. In order to ensure the validity of the bequest, because the two parties are 70 years old, before the bequest, it is recommended that Uncle Zhang and Aunt Wang file a lawsuit with the local court in accordance with the cause of the special procedure case, and file a judicial appraisal application to request whether they have civil capacity to identify. If the appraisal institution is identified as a person with civil capacity and declared by the court as having civil capacity, a valid bequest may be made. At the same time of writing the bequest, they should also write two pages of autograph for standby (if the legal heir of the old man has any objection to the authenticity of the bequest, he can apply for handwriting identification of the bequest as a test material), and then the two people write the bequest in full, and autograph and date. If the Legacy Agreement exceeds one page, each page shall be autographed. It is best to let the lawyer witness (or notarize by the notary office) the writing process of the bequest, so as to prove the authenticity of the bequest, signature and date written by the two old people. Since the bequest was made unilaterally by the two old men, the grandson did not participate in the whole process and did not need to sign the bequest. According to the relevant legal provisions, the bequest is a private document and is presumed to be true as long as it is signed or stamped by the maker. The intention of the bequest to give the property to another person indicates that although it was made before the bequest, the transfer of ownership of the property did not occur before the bequest's death, and the bequest would have legal effect only after the bequest's death. His grandson must make a statement of acceptance of the bequest within 60 days from the date on which he knows or should have known of the bequest, otherwise he shall be deemed to have waived the bequest. Regarding the starting point of the bequestee "knowing the bequest within 60 days after the bequest", the author believes that because the inheritance starts from the death of the heir, the bequest occurs only after the beginning of the inheritance, so the earliest starting point of 60 days is from the date of the bequest's death. In other words, if the bequestee was informed of the bequest before the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days from the date of the bequestee's death, and if the bequestee did not learn of the bequest until after the bequestee's death, he shall make an indication of acceptance of the bequest within 60 days of the bequest. The concept of bequest The so-called bequest refers to a way of dealing with an estate in which a natural person gives part or all of his legal property to a person other than the legal heir or a state or collective organization in the form of a will. Supreme People's Court judicial view that First, bequests are unilateral, essential civil legal acts. When a legatee gives his personal property to another person by way of a will, he does not need to obtain the consent of the legatee and any other person. The act of bequest must be carried out in the form of a will, in accordance with the legal form of the will. After the death of the bequestee, the bequestee may or may not accept the bequest. Second, a bequest is an act of giving an estate free of charge. The property benefits given by the bequestee to others through bequests are often gratuitous and, even if accompanied by some obligation, generally have no reciprocal nature, and the bequestee is not bequeathed if it gives property obligations (e. g. debts) to others or makes the bequestee's obligations exceed the rights it enjoys. Third, a bequest is a legal act that takes effect on the occurrence of the fact of death. Although a bequest is an expression of meaning made in a will before the bequest, it must take legal effect only after the bequest's death, so it can be understood as a conditional legal act. Before the bequestee makes a bequest without death, he may change or revoke his intention at any time in accordance with the law. Fourth, the bequestee must survive when the bequest takes effect. If the bequestee dies before the bequestee or at the same time as the bequestee, he cannot become a bequestee because the bequest has not yet taken effect, nor can a legal person become a bequestee if it has been revoked or dissolved at the time of the bequestee's death. Fifth, the bequestee must be a person other than the State, the collective or the legal heir. The legal heir cannot be a legatee, but can only be an heir to the will. The heir to the will can only be designated within the scope of the legal heir, and the bequestee can only be designated outside the scope of the legal heir. In addition, the bequestee must have civil capacity, and the bequest written by the person without civil capacity has no legal effect. For example, minors, mental patients, etc. have no capacity for civil conduct, so their bequests have no legal effect. When a natural person gives his personal property in the form of a will to a person other than the state, collective or legal heir, once the natural person dies, the bequestee knows the bequest of the bequestee, there is a problem of accepting or abandoning the bequest. By nature, the acceptance of a bequest or the abandonment of a bequest is a unilateral civil legal act, that is, as long as the bequestee's unilateral expression can have legal effect, resulting in the consequences of accepting the estate or abandoning the estate. Accepting a bequest requires attention to the following issues (1) The subject of the acceptance or abandonment of the bequest. The subject of the bequest may be the bequestee himself or his agent. (2) The time limit for accepting the bequest. The bequestee shall make an indication of acceptance within 60 days (it must be noted that it is within 60 days, not two months) after the death of the bequestee and the knowledge of the bequest. The 60-day representation period is self-knowledge of the fact of the bequest, and the "knowledge of the fact of the bequest" should be understood as "knowledge or should have known". (3) The form of acceptance of the bequest. To accept a bequest, there must be a clear expression of meaning, the so-called clear expression of meaning, that is, the act of expression must be able to confirm the acceptance of the bequest. The form of representation may be written or other forms, direct or indirect, but to the extent that the acceptance of the bequest can be confirmed. If the bequestee has not expressed its acceptance in writing or orally, but its specific conduct can reflect its acceptance of the bequest, it should also be considered to accept the inheritance, and it cannot simply deny its right to accept the bequest without making a written statement. (4) The right to accept a bequest may be transferred to another person. After the commencement of the inheritance, if the bequestee expressly accepts the bequest, he may transfer the right to another person, and other heirs cannot restrict it, which is in fact a disposition of his own property under civil law. Another way of transfer is that after the commencement of the inheritance, the bequestee has indicated that he accepts the bequest, but dies before the division of the estate, and his right to accept the bequest may be transferred to his heirs in accordance with the law. (5) Treatment of obligatory bequests. If the bequest is accompanied by an obligation, it is necessary to perform the obligation in order to receive the bequest, but whether the obligation is performed first depends on the requirement of the bequest of the decedent. In practice, if the obligation can be fulfilled and the legatee fails to do so without justifiable reasons, the people's court may cancel the right to accept part of the estate with the obligation upon the request of the beneficiary or other heirs, and the requesting heir or beneficiary shall be responsible for performing the obligation and accepting the estate according to the will of the testator; if the legatee with the obligation is indeed unable to perform due to objective reasons, etc, the limitation of rights to bequeathed estates needs to be dealt with on a case-by-case basis, which is not explicitly provided for in the current law. Extended thinking: What to do if the bequestee dies before the estate is divided. If the bequestee dies before the division of the estate, the right of his heirs to accept the bequest depends on the expression of the bequest before the bequest. Only when the bequestee expressly accepts the bequest can he enjoy the right to accept the bequest, and if he waives the bequest, he no longer enjoys the right, and if he does not express it, he is deemed to have waived the bequest and does not enjoy the right. Thus, in the case of the bequestee's acceptance of the bequeathed property, the bequestee's heirs have the right to accept the bequeathed property, and if the bequestee renounces the bequest before life or does not express the bequest, the bequestee's heirs no longer have the right to accept the bequest property because the bequestee does not have the right. Relevant legal provisions (1) the People's Republic of China Civil Code Article 1122: An estate is the lawful property of an individual left over from the death of a natural person. Inheritance may not be inherited in accordance with the provisions of the law or in accordance with its nature. Article 1123: After the commencement of inheritance, it shall be handled in accordance with legal inheritance, and if there is a will, it shall be handled in accordance with testamentary inheritance or bequest; if there is a bequest and maintenance agreement, it shall be handled in accordance with the agreement. Article 124: If the heir renounces the inheritance after the inheritance has begun, he shall make a written statement of renunciation before the estate is disposed of; if there is no such statement, the inheritance shall be deemed to be accepted. The donee shall, within 60 days after knowing the bequest, make a statement of acceptance or abandonment of the bequest. 2. Article 38 of the (I) of the Supreme People's Court on the Interpretation of the Inheritance Code of the the People's Republic of China Civil Code: "If, after the commencement of inheritance, the bequestee expresses his acceptance of the bequest and dies before the division of the estate, his right to accept the bequest is transferred to his heirs." 3. Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (Revised 2019, effective as of May 1, 2020) Article 92 With regard to the authenticity of private documentary evidence, the burden of proof shall be borne by the party who claims to prove the facts of the case by private documentary evidence. If the private document certificate is signed, sealed or stamped by the producer or his agent, it is presumed to be true. If there is any deletion, alteration, addition or other form of defect on a private document, the people's court shall judge its probative force on the basis of the specific circumstances of the case.

2022-03-14

Viewpoint | From "several crimes" to "exemption from punishment" ------ the whole defense of a middle school student's crime-related case

Recently, Jia Xincui, director of the criminal department of Zhongcheng Qingtai (Jinan) Law Firm, accepted the entrustment to handle a case in which a senior high school student was suspected of provoking trouble and gathering people to fight. The case involved nearly 30 high school students, and most of them were close to the college entrance examination. The children's lives seemed to be full of haze. The defense lawyer defended the whole process, peeling off the cocoon layer by layer, from combined punishment for several crimes to exemption from criminal punishment, the sky of the children finally opened. Brief of the case Client Li Moumou (senior high school students) was insulted by Lin and others (all senior high school students) and made an appointment with Lin and others. There were about 8 people in Li and 22 people in Lin. After the two sides arrived at the agreed reservoir, there was a fight, causing one person to be slightly injured. In the afternoon, because classmate Liu Moumou wanted to ask Wang Mou for his girlfriend's medical expenses, Li Moumou followed Liu Moumou to the scene. Liu Moumou beat Wang Mou and demanded 2000 yuan from Wang Mou. The public security organ filed a case on suspicion of gathering people to fight and provoke quarrels, and the public security bureau of a certain district handled the case as a crime-related case. Because the case involved a large number of people, all of whom were students at school, and involved two administrative regions, after the incident, it caused great concern in the two districts. The defense process Investigation stage: The defender proposed that this case is not a criminal case involving gangs, but only a dispute between students and does not constitute a crime. Later, the public security organ took the case as a general criminal case and transferred it to the procuratorate on suspicion of provoking quarrels and affray; Review and prosecution stage: the defender proposed that Li did not constitute the crime of provoking trouble, although there was an act of affray, but it could not be regarded as a crime, and suggested not to prosecute. The procuratorial organ recognized that Li did not constitute the crime of provoking quarrels, but constituted the crime of affray, and filed a lawsuit in the court on suspicion of affray; Trial stage: The defender proposed that although Li Moumou and others had the behavior of gathering crowds to fight, they belonged to a group fight between middle school students due to ordinary conflicts, and the persons involved in the case were all high school students who were about to take the college entrance examination and applied for them. Exempt from punishment. The court finally accepted the defender's opinion and exempted the two (principal offenders) from criminal punishment. The procuratorate then made a decision not to prosecute the remaining 20 or so involved. A whirlwind of adolescence ends in calm. Enlightenment of this case 1. 30 high school students, there are 30 families behind them. If they are treated as crimes, the life trajectory of 30 children will be rewritten. They may really become the opposite of society. The result of such treatment will be unbearable for children, families and society; adolescent children are a special group, and more tolerance and help should be given to them; The ultimate goal of 2. justice is not to punish, but to educate, guide and inspire people's good thoughts and good deeds. The handling of this case is a judicial process with a temperature, which has achieved a high degree of unity between legal and social effects; 3. the current Supreme People's Procuratorate's judicial concept of less arrest, cautious prosecution and cautious judgment is conducive to maintaining social stability and promoting judicial progress; 4. defense lawyers should be able to defend the whole process, and they can do much at the three stages of public, procuratorial and legal.

2022-03-14

Viewpoint... The subject qualification determination and judicial application rules of the third party's withdrawal of the lawsuit.

Introduction As one of the three ways to remedy the rights of outsiders, the third party's revocation lawsuit system is a new system established on the basis of the execution of the objection lawsuit and the outsider's application for retrial. Since the system was established by the Civil Procedure Law in 2012, it has played an increasingly important role in trial practice. As the premise and focus of the trial of such cases, the qualification examination of the subject of the third party to withdraw the lawsuit is controversial in theory and judicial practice. 1. of the Civil Procedure Law of the People's Republic of China to determine the subject qualification of the third party to revoke the action According to the provisions of the first and second paragraphs of Article 59 of the Civil Procedure Law, the third party shall have the right to file a lawsuit against the subject matter of the litigation of both parties if it considers that there is an independent right of claim. Although the third party has no independent claim to the subject matter of the litigation of both parties, if the outcome of the case has a legal interest in him, he may apply to participate in the litigation, or the people's court shall notify him to participate in the litigation. The third party who bears civil liability in the judgment of the people's court shall have the litigation rights and obligations of the parties. Thus, the subject of the third party's revocation action includes two types of third parties, namely, the right of independent claim and the right of non-independent claim. Among them, "a third person with an independent claim" refers to a person who participates in the litigation, whether in whole or in part, as an independent entity right holder, in the subject matter of the litigation between others. "No independent claim third party" refers to the subject matter of the litigation of both parties. Although the third party has no independent claim, but the result of the case has a legal interest with it, it can apply to participate in the litigation, or the people's court Notify the person who participated in the lawsuit. Disputes 2. the qualification of ordinary creditors to bring a third-party revocation suit. There is a great deal of controversy in judicial practice as to whether ordinary creditors with independent claims and third parties other than those without independent claims, as stipulated in the Civil Procedure Law, can bring a third-party revocation suit: The view 1. completely negates that The view was that an ordinary creditor could not independently claim substantive rights in respect of the subject matter in the original case and was not a third person with an independent claim in the case. At the same time, based on the relativity and independence of the claim, the creditor has only an economic interest rather than a legal interest in the outcome of the original case, and is not a third party without an independent claim, and does not meet the subject conditions of the third party's revocation of the claim as stipulated in Article 59 of the current Civil Procedure Law. [Bulletin Case] (2017) Supreme Law Minzong No. 319 The main purpose of the decision: the subject of the third party's revocation shall be strictly limited to two types of third parties with independent claims and no independent claims, and the subject of the right to bring a third party's revocation shall not be extended to two types of third parties who enjoy ordinary claims. The court held that the original case was a dispute over the equity transfer contract between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong. Hu Bingguang and other five people are ordinary creditors who have a private lending relationship with Chen Lianying. First of all, as far as the original case is concerned, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, Hu Bingguang and other five people do not enjoy the independent claim right to the litigation object of both parties in the original case, and they do not belong to the third party with the independent claim right stipulated in the first paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. Secondly, no matter how the original case, that is, the equity transfer contract dispute between Chen Lianying and Jin Hengkun Company, XX Ping and Shen Jinlong, the result will not affect the rights and obligations under the private lending legal relationship between Hu Bingguang and other five people and Chen Lianying. Hu Bingguang and other five people, as ordinary creditors who have a private lending relationship with Chen Lianying, have a certain de facto relationship with the original case in terms of whether the creditor's rights can be realized, but this de facto relationship is different from legal interests. As far as the original case is concerned, Hu Bingguang and other five people do not belong to the third party without independent claim as stipulated in the second paragraph of Article 56 of the the People's Republic of China Civil Procedure Law. opinion 2. conditional affirmation In this view, ordinary creditors have the subject standing to bring a third-party revocation suit under certain conditions. The legislative purpose of the third party's revocation lawsuit is to provide relief to the third party who has been infringed by the false lawsuit, and should expand the interpretation of Article 59 of the current Civil Procedure Law to include ordinary creditors in the category of third parties. However, considering that the third party's revocation action is a special relief procedure, in order to prevent the abuse of the right of action, and taking into account the authority of the effective judicial instrument, strict conditions should be set for ordinary creditors to bring a third party's revocation action. Ordinary creditors generally do not have the right to bring a third-party revocation action, but in some special circumstances, if the creditor has the right of revocation against the debtor's related civil acts, there is evidence that the debtor's external litigation is suspected of false litigation, the third-party revocation action may be brought. [Guidance Case] (2017) Supreme Law Minzhong No. 626 The main purpose of the decision: because the rights and obligations of the debtor and others are determined by the effective decision document, resulting in the creditor could not exercise the right of avoidance of the debtor's conduct under Article 74 of the Contract Law (Articles 538-540 of the Civil Code), the creditor may bring a third party to cancel the action. The court held that: looking at the relevant provisions of the current civil procedure law on the relief of the third party who has suffered damage to civil rights and interests, such as the third party revocation lawsuit, the outsider's execution objection and the trial supervision procedure, combined with the practical need of establishing the third party revocation lawsuit system for strengthening the relief of the third party who has damaged the legitimate rights and interests due to false litigation or transferring property through litigation, evading debts and other acts in the revision of the civil procedure in 2012, it cannot be concluded that the civil rights and interests claimed by the guarantee center in this case do not fall within the scope of the remedy of the third party's revocation. Therefore, although the relationship between the guarantee center and Wang Wei belongs to creditor's rights and debts in this case, based on the relationship between the guarantee center's creditor's rights to Wang Wei and the aquaculture plant transferred by Wang Wei, the preservation and enforcement measures taken by the court in the litigation and enforcement procedures for the due creditor's rights transferred by Wang Wei due to the aquaculture plant make the impact on the interests of the guarantee center, as well as the basic facts of this case that the guarantee center claims that the damaged civil rights and interests have obstacles to filing a revocation right lawsuit according to Article 74 of the Contract Law due to civil mediation document No. 183, it can be concluded that Wang Wei and Lu Jinying have a legal interest in the handling result of the dispute over the sales contract with the guarantee center, and the guarantee center has the right to file a lawsuit for revocation by the third party in this case. [Supreme Law Case] (2018) Supreme Law Minshen No. 3403 The main purpose of the decision: Ordinary creditors damaged by false litigation have the right to file a third-party revocation. The court held that the question of whether Ding Jianbing was a qualified plaintiff in the third party's revocation lawsuit had been clarified in the original trial. That is to say, in the original lawsuit, Ruiya Company requested to confirm the invalidity of the Commodity House Sales Contract with Xu Aiyun, which only involved the relationship between Ruiya Company and Xu Aiyun. Ding Jianbing did not put forward an independent claim on the subject matter of the original lawsuit. The subject matter of the original lawsuit and the private loan contract and the guarantee contract involved in the case No. 20 are independent of each other, and have no legal implications, therefore, Ding Jianbing is not a third party with an independent claim, nor is he a third party without an independent claim who has a legal interest in the original case. However, one of the main purposes of the revision of the the People's Republic of China Civil Procedure Law in 2012 to create the third party revocation litigation system is to regulate false litigation. Therefore, in addition to the third party with the right of independent claim and the third party without the right of independent claim, the subject of the third party's revocation of the lawsuit also includes the third party whose civil rights and interests have been infringed by the false lawsuit, and the ordinary creditor whose claim is difficult to realize due to the result of the original judgment also has the subject qualification to bring the third party's revocation lawsuit. In this case, Ding Jianbing applied for pre-seizure of the presale commercial housing purchased by Xu Aiyun, the original party, and obtained a successful judgment. The realization of his creditor's rights is related to whether the pre-seizure property can be realized, and the result of the original judgment may defeat the purpose of pre-seizure. In fact, Raya Company has also filed a separate lawsuit against the execution of the pre-seizure act by outsiders based on the effective judgment of the original case, demanding to block the execution of the property involved in the case. In the case of claiming that there is a false lawsuit in the original case, Ding Jianbing, as a creditor, has the subject qualification to bring a third party to cancel the lawsuit. The expansion of the subject qualification of the third party's revocation lawsuit in the Minutes of the Ninth People's Conference in 3.. Article 120 of the Minutes of the Ninth People's Meeting stipulates that the third party in the third party's revocation action is limited to the third party with independent claim and no independent claim as stipulated in Article 56 of the Civil Procedure Law, and generally does not include creditors. However, the purpose of the establishment of the third party's revocation suit is to remedy the civil rights and interests enjoyed by the third party who did not participate in the proceedings because of the cause that cannot be attributed to him but was damaged by the wrong content of the effective adjudication document. Therefore, the creditor can bring the third party's revocation suit under the following circumstances:(1) the creditor's right is the creditor's right that the law clearly gives special protection, for example, the priority of compensation for construction project price stipulated in Article 286 of the Contract Law and the priority of ships stipulated in Article 22 of the Maritime Law;(2) Because the rights and obligations of the debtor and others are determined by the effective judgment document, the creditor could have enjoyed the right of revocation but could not exercise the debtor's behavior stipulated in Article 74 of the Contract Law and Article 31 of the Enterprise Bankruptcy Law;(3) The creditor has evidence to prove, the contents of the creditor's rights determined in the main text of the judgment document are partly or wholly false. Creditors also have to meet other conditions stipulated in the law and judicial interpretation to file a third party revocation suit. For other claims, creditors may not, in principle, sue for avoidance by a third party. As a result, the Minutes of the Ninth People's Meeting, on the one hand, strengthens the third party with independent claim and the third party without independent claim as the subject of the third party's revocation lawsuit stipulated in Article 59 of the current Civil Procedure Law, and on the other hand, appropriately expands the subject of the third party's revocation lawsuit, bringing creditors in line with specific circumstances into the subject category of the third party. However, in order to prevent outsiders from abusing their litigation rights and affecting the stability and authority of the effective decision, the Minutes of the Ninth People's Meeting strictly limits the subject qualification of creditors to bring a third-party revocation suit, that is, it is limited to creditors who have priority, statutory revocation rights and who are victims of false litigation in accordance with the law. Conclusion The plaintiff of the third party's revocation action should be the third party who did not participate in the original litigation because it could not be attributed to himself, including the third party with the right of independent claim and the third party without the right of independent claim. In principle, ordinary creditors are not protected by a third-party revocation suit, I .e., the ordinary creditors of the original parties are generally not able to initiate a third-party revocation suit as a plaintiff. However, if the parties in the original case collude in bad faith to carry out false litigation, ordinary creditors may, as victims of false litigation, file a third-party revocation suit; in addition, the law clearly provides for special protection of claims, including those with legal priority and those with legal right of revocation, can also be protected by a third-party revocation suit.

2022-03-11

Judicial Interpretation of the General Provisions of the Civil Code | Interpretation of "Major Misunderstandings"

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the the People's Republic of China Civil Code (hereinafter referred to as the "Judicial Interpretation of the General Provisions of the Civil Code") was adopted at the 1861st meeting of the Judicial Committee of the Supreme People's Court on December 30, 2021 and will come into force on March 1, 2022. The judicial interpretation of the general provisions of the civil code is an in-depth and detailed interpretation of the ten chapters in the general provisions of the first part of the civil code. It is an interpretation formulated by the Supreme People's court in order to correctly hear civil cases, protect the legitimate rights and interests of civil subjects according to law, and maintain social and economic order, in accordance with the the People's Republic of China civil code, the People's Republic of China civil procedure law and other relevant laws and regulations, combined with trial practice. Articles 19 and 20 of the Judicial Interpretation of the General Provisions of the Civil Code are the interpretations of major misunderstandings in Article 147 of the Civil Code. With the continuous development of the theory and practice types of civil legal acts, the understanding and scope of application of "major misunderstandings" have also changed. This article will start from the "Judicial Interpretation of the General Provisions of the Civil Code" to interpret "major misunderstandings. Historical changes in relevant provisions of 1. major misunderstandings General Principles of the People's Republic of China Civil Law (2009 Amendment) (Expired) Article 59 A party shall have the right to request a people's court or an arbitration organ to modify or cancel the following civil acts: The perpetrator of the (I) has a major misunderstanding of the content of the act; (II) is obviously unfair. A revoked civil act shall be null and void from the beginning of the act. Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of the the People's Republic of China Civil Law (for Trial Implementation) (Expired) 71. If the perpetrator's misunderstanding of the nature of the act, the other party, the variety, quality, specification and quantity of the subject matter makes the consequences of the act contrary to his own meaning and causes greater losses, it may be considered a major misunderstanding. 73. If the parties request a change in a major misunderstanding or obviously unfair civil act, the people's court shall change it; if the parties request a revocation, the people's court may, as appropriate, change or revoke it. The people's court shall not protect a civil act that can be changed or revoked if the party concerned requests to change or revoke it more than one year from the time of its establishment. 77. The meaning is conveyed by the obligation of a third party, and if the third party causes damage to others due to negligence or failure to convey, the meaning person may generally be liable for compensation. However, unless otherwise provided by law or otherwise agreed by both parties. the People's Republic of China Civil Code Article 147 The perpetrator of a civil juristic act committed on the basis of a material misunderstanding shall have the right to request a people's court or an arbitration institution to cancel it. Guidelines for the Operation of Litigation Operations in Civil Contract Dispute Cases Article 11 The examination of whether a major misunderstanding is constituted shall be conducted in the following aspects: (I) whether the counterparty to the contract has a major misunderstanding of the nature of the contract, the type, quantity, quality, and consequences of the subject matter; Whether the (II) misunderstanding was caused by the misunderstood party itself and not by fraud or improper influence on the other party; whether the counterparty to the contract made the wrong meaning as a result of a material misunderstanding; and whether the misunderstanding directly affected the rights and obligations of the misunderstood party. Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the the People's Republic of China Civil Code Article 19 If the perpetrator has a wrong understanding of the nature of the act, the other party or the variety, quality, specification, price, quantity, etc. of the subject matter, according to the usual understanding, if the wrong understanding does not occur, the perpetrator will not make a corresponding expression of intention, the people's court may determine that it is a major misunderstanding as stipulated in Article 147 of the Civil Code. If the perpetrator can prove that there was a major misunderstanding in the implementation of the civil legal act and request the revocation of the civil legal act, the people's court shall support it in accordance with the law; however, unless it is determined that the perpetrator has no right to request revocation based on transaction habits. Article 20 If the perpetrator requests the revocation of a civil juristic act on the ground that his will expresses the existence of a third party's transmission error, the provisions of Article 19 of this Interpretation shall apply. Interpretation of the current judicial interpretation of 2. major misunderstandings Definition of (I) "Major Misunderstanding" Article 71 of the "People's Opinions": "The perpetrator's misunderstanding of the nature of the act, the other party, the variety, quality, specification, and quantity of the subject matter makes the consequences of the act contrary to his own meaning and causes greater losses., Can be considered a major misunderstanding." The invalid "People's Opinions" summarized that it was identified as a "major misunderstanding", which was a misunderstanding that made the consequences of the behavior contrary to its own meaning and caused greater losses. The first paragraph of Article 19 of the Judicial Interpretation of the General Provisions of the Civil Code is amended to read, in accordance with the usual understanding, that if the wrong understanding does not occur, the perpetrator will not make a corresponding intention. This amendment not only perfects the expression of "contrary to meaning", but also reasonably deletes "causing loss. 1. "Major misunderstanding" itself is a kind of meaning expression, which is made on the basis of wrong understanding. If there is no "wrong" understanding, it will not be based on "error" and "meaning". Therefore, whether or not to cause a large loss can not be the basic element to judge whether it constitutes a major misunderstanding, from the result of the act to extrapolate the nature of the act itself is a logical reversal, so that some of the wrong understanding to make the corresponding meaning but did not produce the corresponding loss of the act can not be characterized. 2. If the wrong understanding does not occur, the actor will not make the corresponding understanding. First of all, the wrong understanding is the nature of the error rather than the value of the error. The nature error includes the nature of the act, the other party or the subject matter of the variety, quality, specification, price, quantity and other objective existence of the wrong judgment, and personal value judgment is not included. Example: Wang's husband, Li, died in a traffic accident on the way to send Zhang a driver's license. Zhang mistakenly thought that he should bear tort liability for Li's death, so he signed an economic compensation agreement with Wang for 200000 yuan. After Zhang fulfilled part of the payment, he found that he had a misunderstanding of the law. In fact, he did not have to bear any legal responsibility for Li's death, so he did not agree to fulfill the obligation of payment. The court of second instance held that the agreement between Zhang and Wang was valid, "and Zhang's personal value judgment, that is, the wrong understanding of the law, was not a major misunderstanding, and accordingly rejected Zhang's appeal request. Secondly, according to the principle of "interpretation precedes error", according to the rules of interpretation of meaning, combined with the objective situation and specific background at the time of the act, to confirm the normative meaning of the expression of the act, if the normative meaning is inconsistent with the inner meaning of the meaning of the person, it constitutes a major misunderstanding. For example, a Tmall store mistakenly set the navel orange of "4500g in 26 yuan" to "4500kg in 26 yuan" due to operational errors. Millions of orders were formed overnight. After a large number of buyers placed orders, they complained to the Tmall platform on the grounds that the store did not deliver the goods on time, resulting in the deposit of the store being deducted and closed. The buyer agreed to the seller's offer and made a valid commitment to establish a 26 yuan 4500kg navel orange sales contract between them, but the seller established a major misunderstanding and had the right to cancel the contract. Finally, the exclusion of "misinformation does not harm the true meaning" and "narrowly motivated errors. "Miscarriage does not harm the true meaning" means that the parties have reached an agreement on the expression of meaning, just because the expression or expression is wrong, such as the wrong use of words is not a major misunderstanding. Example: A and B agreed that A would sell 100 tons of whale meat to B. The written contract signed by the two parties stated: "A sells 100 tons of Haakjoringskod to B." "Haakjoringskod" is Norwegian and means "shark meat", but both A and B entered into the written contract with the word meaning "whale meat". It can be determined by explanation that A and B agree that A sells whale meat to B, not shark meat. Although the written contracts of A and B used the wrong words, "miscarriage does not harm the true meaning", A and B established a 100-ton whale meat sales contract instead of a 100-ton shark meat sales contract. Similarly, "error of motive in the narrow sense" means that the motive is not part of the content of the legal act, and if the content of the meaning is not wrong, the mere error of the inner cause (motive) of the meaning is not a major misunderstanding. Example: The buyer heard that a house somewhere will open the subway in two years, and then it will appreciate significantly (hearsay, not the developer's promise), so he decided to buy the house. In fact, the subway will not be opened in two years. The buyers feel that they have misunderstood the house and asked to return it. At this time, the buyer cannot ask to check out on the grounds of major misunderstanding, because this is only the wrong motive for buying a house, and the civil law does not protect the motive. (II) "trading habits" Article 19, paragraph 2, of the Judicial Interpretation of the General Provisions of the Civil Code also lists "trading habits" as an exception to the right to release major misunderstandings, and cautiously and creatively uses "trading habits" as an auxiliary line of judgment to determine whether they constitute a major misunderstanding. In considering whether a civil juristic act constitutes a "material misunderstanding", the context of the conclusion of the contract, the overall economic situation and other factors should be taken into account. For example, in the classic case, we discussed drinking a bottle of mineral water in the hotel. The guests thought it was a gift and the hotel thought it was consumption. We should consider the objective rules when judging. If it is now, the hotel will give away two bottles of water, which is also a common phenomenon. Although there is no written contract agreement, it is already a common standard for hotel accommodation agreements, and there is no major misunderstanding. Admittedly, to take a step back, even 20 years ago, there was no general rule for hotels to give away mineral water. In the absence of agreement between the two parties, it was neither a gift nor consumption. The act of picking up mineral water to drink could not constitute a promise. There was no intention to buy water. The contract was not established and there was no "major misunderstanding". The Judicial Interpretation of the General Provisions of the Civil Code adds the exception of "trading habits" and lists "trading habits" separately, taking into account the objective environment and general understanding, as well as special industry norms and specific trading habits, such as the field of art trading. Although this new rule is not used as a basis for adjudication, it is reflected in the gist of adjudication in typical cases in practice. (2011) Bai Minchu Zi No. 2694 Case Judgment Summary The buyer and the seller have confirmed the pictures and objects of the artwork before signing the contract for the sale of the artwork. In the whole transaction process, the seller has not made any evaluation, judgment and commitment to the manufacturing age and material of the artwork. Because the folk trade of art depends to a greater extent on the knowledge and experience of traders, its value depends on the spiritual needs of decoration and appreciation. Once the buyer decides to proceed with the transaction, it should be determined that the buyer does not constitute a material misunderstanding, even if the material or age of the artwork does not conform to his judgment. In this case, the buyer is not entitled to claim avoidance of the contract on the grounds of material misunderstanding. (III) the effect of "third person relaying wrong" behavior is consistent with "material misunderstanding" According to article 77 of the People's Republic of China, "The expression of intention is conveyed by the obligation of a third party, and if the third party causes losses to others due to negligence or failure to convey it, the person expressing the intention may generally be liable for compensation. Except as otherwise provided by law or otherwise agreed by both parties." This provision only allocates the responsibility for the loss arising from the "misrepresentation", establishes the principle that the person expressing the intention is liable for compensation, and the law provides otherwise or the parties agree otherwise as an exception to the allocation of responsibility, but does not give a clear characterization of the act of "misrepresentation. Article 20 of the Judicial Interpretation of the General Provisions of the Civil Code aligns the effect of the act of "third party conveying errors" with the "major misunderstanding" of Article 19. But it is worth noting that the third person to convey the error should be distinguished from the unauthorized agent. The third person's transmission error must be that the ideographic person expresses his intention to the third person to convey it. The third person's error in the process of transmission is unintentional, but the transmission effect of the error belongs to the ideographic person. In this case, the contract can be directly canceled according to major misunderstanding. According to the rule of unauthorized agency, the ideographic person can ratify the behavior of the unauthorized agent, A bona fide counterpart may exercise the right of reminder and revocation.

2022-03-09

Real estate perspective: can subcontractors, illegal subcontractors, and affiliated people claim to pay management fees to actual builders?

Presentation of 1. issues The management fee generally refers to the expenses incurred by the construction unit for the organization of construction production and management. In the general contract of construction project, no matter what kind of pricing model is adopted, the management fee is often included in the total cost of the project, and the contractor shall pay the management fee (enterprise management fee) to the general contractor according to the agreement of the general contract. In valid construction subcontracting contracts (professional subcontracting and labor subcontracting, etc.), there is basically no dispute that the general contractor charges a certain management fee to the subcontractor. On the contrary, in the case of subcontract, illegal subcontract and affiliated construction, the management fee agreed in the contract is often not the management fee in the project cost, but the "subcontract fee", "subcontract fee" or "affiliated fee", which belongs to the consideration paid by the actual construction to the subcontractor, illegal subcontractor or affiliated person (hereinafter referred to as "subcontractor" or "subcontractor") for the purpose of obtaining the project. In this case, how to deal with the subcontractor's claim for management fee to the actual builder? Or, how to deal with the claim of the actual builder's claim for the subcontractor to return the management fee deducted from the project payment? This paper intends to combine the judicial judgment point of view for analysis. 2. view of judicial adjudication On the proposition of whether subcontractors should be supported to collect management fees from actual constructors, there are roughly four views in judicial practice: first, subcontracting, illegal subcontracting and affiliation violate the mandatory provisions of laws and administrative regulations, and the contract is invalid. The management fees agreed in the contract belong to illegal income and do not fall within the scope of civil law adjustment, and should be collected or transferred to the administrative department for handling; Second, in the case of invalid contract, the management fee agreed in the contract has no factual basis. The claim of the subcontractor asking the actual builder to pay the management fee or directly deduct it from the project fund shall not be supported, and the paid or deducted shall be returned as unjust enrichment. Third, when the construction project is completed and accepted, although the contract is invalid, the project price shall still be paid (compensated) according to the contract. The management fee is part of the construction project price, so it shall be handled according to the agreement; fourth, if the subcontractor is involved in the actual construction of the project management, and paid a certain cost, rather than the subcontractor simply subcontracting for profit, should refer to the contract agreement. The specific views of the referee are as follows: The management fees agreed in (I) subcontracting, illegal subcontracting and affiliation contracts are illegal income, do not fall within the scope of adjustment of civil law, and should be collected or transferred to the administrative department for disposal. The early judgment, such as the Supreme Law (2014) Min Shen Zi No. 365, held: "In view of illegal subcontracting and illegal subcontracting in the process of project construction, we should strengthen the investigation and punishment, ensure the special funds for the project funds from the source, eliminate the hidden dangers of project quality caused by the interception of project funds at various levels, and ensure the quality and safety of the project. Therefore, the illegal issue of the South Henan Expressway Company's collection of rebates involved in this case should be dealt with by the relevant departments in accordance with the law." Subsequent judgments such as (2018) Supreme Law Minzhong No. 586 held that Article 4 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Construction Contract Disputes stipulates that the contractor's illegal subcontracting or illegal subcontracting of construction projects or the act of an unqualified actual builder signing a construction contract with others in the name of a qualified construction enterprise is invalid. The people's court may, in accordance with the provisions of Article 134 of the General Principles of the Civil Law, confiscate the illegal gains already obtained by the parties. Although the judgment did not directly collect the management fee agreed in the contract, it rejected the claim to pay the management fee on the grounds of lack of legal and factual basis. Another example is (2020) Supreme Law Civil Final No. 1008 that: the management fee agreed in the invalid contract the people's court should be forced to judge the amount. (2019) Supreme Law Civil Final No. 1752 holds that the management fee agreed in the invalid contract is the consideration exchanged between the two parties based on the qualification of the construction of the project, which does not meet the constituent elements of unjust enrichment. The above judgment point of view can be summarized as follows: the management fee in the invalid contract violates the mandatory provisions of the law, belongs to the illegal income, and does not belong to the scope of adjustment of the civil law. The attitude of the civil law is to let the "illegal expenses stay in place", which should be adjusted by the public law and should be collected or transferred to the administrative department. The claim for payment of management fees or the claim for return after payment is not supported. (II) the contract is invalid, the management fee agreed in the contract has no factual basis and should not be supported; For example, the Supreme Law Minzhong No. 576 held that the relationship between Huang Jianguo and Dongfang Company was a borrowing of qualifications, but the borrowing of qualifications in the field of construction projects violated the mandatory provisions of the law. The management fee agreed upon by both parties is actually the consideration paid by Huang Jianguo for borrowing the qualification. Dongfang Company's request to Huang Jianguo to pay the management fee according to 1.2 of the project price involved in the case lacks legal basis, and the court will not support it. Another example is (2020) Supreme People's Court No. 898: The Supreme People's Court held that Baye Company and Baye Xining Branch are professional construction enterprises, and there is obvious fault in subcontracting the project involved to individuals without corresponding construction qualifications. The Agreement signed by Baye Xining Branch and Li Mouchu is an invalid contract, and it cannot prove that it actually participated in the relevant management of project construction, its appeal request lacks basis and is not supported. When the (III) construction project is completed and accepted, the management fee shall be part of the construction project price, and although the contract is invalid, the project price shall still be paid (compensation) according to the contract agreement. For example, (2020) Supreme People's Court No. 860: The Supreme People's Court held that according to the agreement of the Subcontract signed between the military construction company and the basic company, the basic company is required to pay the management fee to the military construction company in accordance with a certain proportion of the project price, of which 2% is for small and high-rise buildings and 3% is for multi-storey buildings. Although the "subcontract" is invalid, the military construction company cooperates with the basic company in the allocation and settlement of funds and construction materials with the contractor, material suppliers, labor service units and other parties during the construction process, and arranges staff to participate in the on-site management of the project involved in the case. it is not improper to require the basic company to pay the management fee according to the original agreement, and the first instance judgment supports it. (IV), if the subcontractor participates in the project management of the actual construction person and pays a certain cost, instead of the subcontractor simply subcontracting for profit, it can be dealt with according to the contract agreement. For example (2021) Supreme Famin Shen No. 3986: The Supreme People's Court believes that the "Internal Contract Construction Agreement for Single Project" involved in the case stipulates that "Jiangsu Shuanglou Company shall charge 4.6% of the total settlement price of the project completed by Nanjing Jiuhuan Company (including the purchasing materials of the construction unit and Jiangsu Shuanglou Company) as the general contractor management fee". Therefore, Nanjing Jiuhuan Company is aware of the agreement between the two parties on the management fee, based on the invalidity of the "Internal Contract Construction Agreement for Single Project" involved in the case and the fact that Jiangsu Shuanglou Company has carried out corresponding management, the court of second instance decided that it was not obviously inappropriate for Nanjing Jiuhuan Company to bear 50% of the management fee involved in the case. Another example is (2020) Supreme People's Court No. 79: The Supreme People's Court held that regarding whether Jiang Junpeng should charge management fees and the proportion of management fees, Jiang Junpeng provided evidence to prove that he employed management personnel, organized meetings, coordinated up and down, and purchased insurance for the construction of the project involved in the case. Jiang Junpeng fulfilled his management obligations for the project involved in the case, and the court of first instance ruled that Wang Baozhen paid him a certain management fees, which was not inappropriate. Because Jiang Junpeng does not have the qualifications for construction and management of construction projects, the court of first instance held that the standard of 7% of the project cost charged by Jiang Junpeng in the internal contract was too high, and decided to reduce the management rate to 2%, which was not improper, and the court maintained it. 3. Supreme Court Judges Meeting Minutes View The minutes of the 7th Judges Meeting of the Second Circuit Court of the Supreme People's Court in 2020 offer three views on the treatment of agreed management fees after the invalidation of construction contracts (the following views are derived from the Minutes of the Judges Meeting of the Second Circuit Court of the Supreme People's Court (second series), published by the People's Court Press in April 2021): (I) said with reference to the contract When the construction project is completed and accepted, although the construction contract is invalid, the project price should still be paid by reference to the contract, and the "management fee" is an integral part of the construction project price, so it should be dealt with by reference to the agreement. If the subcontractor claims "management fee" to the actual builder, it shall be supported; if the actual builder requests the return of "management fee", it shall not be supported. (II) invalid return said The "management fee" stipulated in the contract under the circumstances of the title is illegal, and the relevant provisions in the contract are invalid, and the treatment of the invalid contract should be referred. If the subcontractor claims that the "management fee" should be deducted from the project price paid, it shall not be supported; if the actual builder claims to return the management fee "or the project price does not deduct the" management fee ", it shall be supported. (III) actual participation in management said In the case of the contract, the "management fee" is part of the price of the construction project, and some is the subcontracting profit of the subcontractor. For the former, if it is found that the subcontractor is actually involved in the construction management service, it can be dealt with by reference to the contract; for the latter, there is no question of returning the input at a discount because the subcontractor has not managed or actually paid. In the distribution of the consequences of the invalidity of the contract, the principle of good faith should be followed, and the parties who are not in good faith should not benefit from the invalidity of the contract. The judge's meeting took the actual participation in the management said: when the construction contract of the construction project is invalid due to illegal subcontracting, illegal subcontracting or affiliation, the treatment of the "management fee" charged by the subcontractor as agreed in the contract shall be judged according to the specific purpose of the contract in the light of the case. If the "management fee" is part of the project price, and the subcontractor also actually participates in the construction organization management coordination, can refer to the contract agreement to deal with; for the subcontractor purely through subcontracting for profit, did not actually participate in the construction organization management coordination, after the contract is invalid to claim "management fee", should not be supported. The parties to the contract shall not support the adjustment of the project price on the ground that the "management fee" as the contract price should be collected. Based on the relativity of the contract, non-contract parties cannot claim to adjust the amount of work to be paid by the agreement between the subcontractor and the subcontractor on the "management fee. 4. legal analysis In accordance with the provisions of laws, administrative regulations and judicial interpretations, the following legal analysis is carried out on whether the subcontractor can claim to pay the management fee to the actual builder, taking into account the rules of adjudication of cases in judicial practice and the opinion of the minutes of the meeting of judges of the Supreme Court: (I) in the case of fact-finding, the management fee agreed in the invalid contract is not an illegal gain. First of all, the meaning of "illegal act" in civil law is only a factual act (corresponding to legal act), "collection" or "transfer to the administrative department to deal with" belongs to the form of responsibility in public law, the fact of civil law can not be concluded in civil litigation to bear the responsibility of public law. The management fee in an invalid contract is an illegal income and should be collected. This view mostly stems from the provisions of Article 4 of the interpretation of the Supreme People's Court on the application of legal issues in the trial of disputes over construction contracts of construction projects (no longer valid): "the people's court may, in accordance with Article 134 of the General principles of the Civil Law, confiscate the illegal gains that the parties have obtained." The (I) of the Supreme People's Court on the Interpretation of Legal Issues Applicable to the Trial of Construction Contract Disputes, which came into effect in 2021, has abolished the above-mentioned provisions, the General Principles of Civil Law have become invalid, and there is no longer any expression in the Civil Code to collect illegal income. "Illegal income", "collection" and "transfer to administrative departments for handling" should fall within the scope of administrative law enforcement and should not be identified and enforced in civil disputes. The tasks of public law and private law are different, and the relationship of rights and obligations between equal subjects to be resolved by civil legal norms, for one of the subjects of civil litigation, the most unfavorable consequence for it is that its claim is not supported, and should not be borne by the way of public law liability. Secondly, subcontracting, illegal subcontracting and affiliation are illegal in public law, which is the need to maintain market order; in the field of private law, as a factual act, the purpose of litigation is to solve the problem of distribution of rights and interests among civil subjects, not to identify illegal gains. Even when the judicial interpretation stipulates that the illegal proceeds should be collected, few courts or administrative organs will collect them. Even if they decide to collect them, there is no enforcement procedure. The reason is that the purpose of legislation is to suppress illegal acts through the form of public law liability of "collection", but it ignores the boundary between public and private law, and finally distributes the management fees agreed in the invalid contract between the two parties to the contract for various reasons. Just as the construction contract for a construction project is invalid, but the actual builder can be compensated at a discount by reference to the contract actually performed on the price of the project. The actual builder has materialized the various costs into the construction project, and in accordance with the law, the treatment of invalid contracts should be "returned separately" in principle, but in the case of no return, compensation can only be made by reference to the contract. The field of construction engineering has its particularity. Even if there are public law violations such as subcontracting, illegal subcontracting, and affiliation, the cost of restoration cannot be restored to the original state or the cost of restoration is high when the project is completed and accepted. The project benefits are distributed among the cost payers, rather than the management fees agreed in the invalid contract as illegal gains. (II), in terms of the application of the law, the amount or proportion of the management fee shall be determined comprehensively according to the degree of participation and cost of the subcontractor in the construction process, with reference to the contract or the actual contractor's benefits. In the event that the contract is invalid, the key to determining whether the subcontractor can take the management fee is whether it actually participates in the management of the project, the degree of participation and the cost input. A combination of the facts of the case should be distinguished to determine whether the claim of management fee should be supported, which can be divided into the following three situations: First, the subcontractor actually participated in the management of the construction process such as project progress, safe and civilized construction, project quality, acceptance, etc., invested human resources, and incurred corresponding management costs. The cost is the "enterprise management fee" stipulated in the "Construction and Installation Project Cost Project Composition", which specifically includes management personnel wages, office expenses, travel and transportation expenses, fixed asset usage fees, tool usage fees, labor insurance and Employee welfare expenses, labor protection expenses, inspection and test expenses, labor union expenses, employee education expenses, property insurance expenses, financial expenses, taxes and others. The above-mentioned expenses together with the expenses such as "human resources machine" constitute the total cost of the construction project. According to the provisions of judicial interpretation, if the quality of the construction project is qualified, it shall be compensated at a discount according to the contract. Reference to the contractual agreement does not mean that the amount or proportion agreed upon in the invalid contract is the standard, but that the value of the results of labor materialized into the project is compared with the amount of the management fee agreed upon in the contract, and the referee adjusts and comprehensively determines the specific amount or proportion of the management fee according to the facts. Second, the subcontractor advocates that the management fee is not the enterprise management fee in the above-mentioned normative sense, but the external cost borne on behalf of the actual construction person. For example, during the construction process, fines due to the violations of the actual construction personnel, compensation for casualties due to safety accidents, and legal liabilities due to external disputes due to infringement. The subcontractor and the actual builder can agree on the sharing of the above-mentioned responsibilities, but there is a subcontractor in the external legal relationship and then unified management.

2022-03-09

Mineral Legal Perspective | Lawyer's Perspective Concerned about the Ecological Restoration of Mines in Shandong Province

In order to standardize the ecological restoration work of mines and improve the ecological restoration capacity of land and space, the Department of natural resources of Shandong Province, the development and Reform Commission of Shandong Province, the Department of finance of Shandong Province, the Department of ecological environment of Shandong Province, the Department of water resources of Shandong Province, the Department of agriculture and rural areas of Shandong Province, the Department of emergency response of Shandong Province and the Energy Bureau of Shandong Province have studied and formulated the implementation management measures for mine ecological restoration, now let us learn about the ecological restoration of mines in Shandong Province, which are worthy of attention: 1. what is mine ecological restoration? Mine ecological restoration refers to the ecological restoration of historical mines and production mines. According to the principle of balanced population, resources and environment, and unified economic, social and ecological benefits, systematic restoration and comprehensive management are implemented on the basis of scientific evaluation, so as to promote the comprehensive utilization and protection of various natural resources, and realize the optimization and improvement of production, life and ecological functions. A mine left over from history is a mine where it is not possible to determine the person responsible for the repair or the person responsible for the loss due to the loss of mining rights or policy closure. Production mines refer to mines in which mining enterprises have obtained mining rights in accordance with the law and are implementing infrastructure construction or organizing production. 2. mine ecological restoration should meet what requirements? Mine ecological restoration activities shall meet the requirements: (1) to conform to the territorial space planning; (2) to comply with the land space ecological restoration planning and related special planning; (3) To meet the requirements of "three lines and one order" ecological environment zoning control; (4) in strict accordance with the green mine construction norms; (5) To comply with the technical requirements and standards for ecological restoration. Principles to be Followed in Ecological Restoration of 3. Mines (I) ecological priority, security. Adhere to the policy of giving priority to ecology, conservation, protection and natural restoration, taking into account ecological, social and economic benefits. In accordance with the order of ensuring safety, restoring ecology, and taking into account the landscape, overall protection, system restoration, and comprehensive management will improve the quality and stability of the ecosystem. (II) highlight the key points and promote as a whole. Coordinate the current situation of mine land space, the suitability of future land space and the needs of industrial development, and simultaneously promote the ecological restoration of historical mines and production mines. Priority should be given to solving the outstanding problems in the ecological restoration of historical mines within the visual scope of the "three districts and two lines", such as many historical debts, large potential safety hazards, poor landscape image, and single source of funds. (III) government-led, market-operated. Give full play to the leading role of the government, strengthen policy guidance and incentives, and stimulate the vitality of market players. According to the principle of "who invests, who benefits" and "who destroys, who repairs", social capital is encouraged to participate in mine ecological restoration and management by means of marketization. According to the "Opinions of the General Office of the State Council on Encouraging and Supporting Social Capital to Participate in Ecological Protection and Restoration" (No. 40 [2021] of the State Council) issued by the General Office of the State Council, it is also to encourage and support social capital to participate in ecological protection and restoration projects. The ways of participation include: 1. independent investment mode. Social capital alone or in the form of consortia, industrial alliances and other forms of funding to carry out ecological protection and restoration. 2. Mode of cooperation with the government. Social capital may set up funds in accordance with the principle of marketization to invest in ecological protection and restoration projects. For projects with stable operating income, models such as government and social capital cooperation (PPP) can be adopted, and local governments can support social capital to obtain reasonable returns through investment subsidies, operating subsidies, and capital injections as required. 3. Public participation model. Encourage public welfare organizations and individuals to cooperate with the government and its departments to participate in ecological protection and restoration and jointly build ecological civilization. (IV) according to local conditions, precise policy. Implement the requirements of land and space planning control and use control, accurately grasp the characteristics of mines and surrounding environment, combine local economic and social development, resource endowment, ecological environment, etc., based on the integrity of the ecosystem, through conservation and protection, natural restoration, auxiliary restoration, and ecological remodeling, Resource development and other methods, adjust and optimize the layout, structure and function of land space, and promote the improvement of natural recovery capabilities. 4. which subjects can participate in mine ecological restoration? (1) Government functional departments All levels of development and reform, public security, finance, natural resources, ecological environment, water conservancy, agriculture and rural areas, emergency management and other departments in accordance with their respective responsibilities, coordinated to promote the ecological restoration of mines. (2) Government financing platforms and social capital Encourage government investment and financing platforms to cooperate with social capital to participate in mine ecological restoration activities. (3) Mining enterprises and social investment entities Support mining enterprises and social investment entities to use market-oriented methods to obtain foreign government low-interest loans, bank green financial loans, government guidance funds and other funds to carry out mine ecological restoration within the scope of laws, regulations and financial policies. What is the investigation of the ecological status of 5. mines? 1. The competent department of natural resources at the county level shall make use of the results of the geological environment survey of mines, combined with the results of the third land survey, the annual land change survey and the registration and certification of land rights, to organize the investigation of the ecological status of mines left over from history and production mines in the area under its jurisdiction. 2. The investigation of mine ecological status mainly includes:(1) the basic situation of the mine. Geographical location, regional area, current land type, land ownership, ore type, remaining resources, residual soil and stone, etc. of the mine. (2) mine ecological situation. The current situation of topography and landscape, the development and utilization of natural resources such as land, minerals, forest and grass, and the damage of resources such as land, forest and grass vegetation. (3) Other contents stipulated by the state and the province. 3. According to the survey results of the mine ecological status, the county-level natural resources department shall establish a background account, incorporate it into the ecological restoration management information system, and update it in real time. What are the responsibilities of 6. mining enterprises for the ecological restoration of production mines? In addition to the overall plan for mine ecological restoration formulated by the competent department of natural resources for mine geological environment investigation, there are relevant regulations for the ecological restoration of historical mines and the ecological restoration of production mines. This paper focuses on the ecological restoration of production mines: 1. Ecological restoration of new mines Mining enterprises in newly-built mines should take into account the ecological conditions around the mine, natural landscape, living environment, village location, industrial layout and other factors, combined with the actual needs of safe production and ecological restoration and landscape reconstruction in the later period of the mine, scientifically and rationally formulate development and utilization plans, mine geological environment protection and land reclamation plans. The preparation of mine geological environment protection and land reclamation plan shall comply with relevant national laws and regulations, the overall mine ecological restoration plan and other relevant requirements. 2. Abandoned mines with mining conditions For the abandoned mines formed in history, which cannot implement ecological restoration measures due to high and steep slopes, deep pits and other reasons, and still have mining conditions, under the premise of conforming to the planning and conducive to the improvement of the ecological environment, it is necessary to re-set mining rights in accordance with relevant regulations. After slope treatment, if it meets the requirements of ecological restoration conditions, in addition to the preparation of mine geological environment protection and land reclamation plans, formulate an annual mining and mine geological environment restoration and governance plan, clarify the annual mining area, mining volume, governance measures, governance scope, governance effect, etc., and report to the county-level natural resources authority for approval. The competent departments of natural resources at the county level should strengthen supervision, and those who fail to implement the plan should be ordered to make rectification within a time limit, and the implementation can continue only after the rectification is in place. 3, mining enterprises should implement the "side mining, side management, side repair" principle. Mining enterprises should strictly implement the mine geological environment protection and land reclamation plan, strictly implement the green mine construction standards, and strictly perform the mine geological environment protection and land reclamation obligations in accordance with the principle of "mining, governance, and restoration" to ensure ecological restoration Work is carried out simultaneously with mineral resources mining activities. During the process of restoration and leveling, dust pollution shall be well controlled to ensure that there is no obvious visible dust in the mining area. If the mining right owner temporarily stops production, he shall take necessary measures to reduce the disturbance to the ecosystem. 4, mining enterprises "closed before the pit" must complete the task of repair The mining right owner shall, in accordance with the overall deployment of the mine geological environment protection and land reclamation plan and the annual mine ecological restoration plan, carry out the mine ecological restoration work, set aside the mine geological environment management and restoration fund, and carry out the mine ecological protection and restoration work year by year. When the mine is closed, the ecological protection and restoration task of the whole mine must be completed. If the mine is closed or closed before the expiration of the mining right transfer period, the mining right owner shall comprehensively carry out the ecological restoration of the mine. Among them, for mines closed due to policy, the people's government at the county level should clarify the main body of responsibility for mine ecological protection and restoration and determine the time limit for governance. If the ecological restoration responsibility is still performed by the original enterprise, the natural resources department at the county level where the mine is located shall supervise the original enterprise to complete the restoration task on schedule and carry out acceptance in accordance with relevant regulations. When providing legal services for mining enterprises, lawyers should focus on the ecological restoration of production mines to prompt mining enterprises to pay attention to avoid legal risks in the ecological restoration of production mines and bear legal responsibilities.

2022-03-07