Real estate perspective: the construction project price priority compensation rules analysis.

1. Introduction In the process of building the socialist rule of law with Chinese characteristics, ensuring the right to survival and maintaining the stability and unity of the rule of law society are the basic requirements for legal practitioners to adhere to the unity of political, social and legal effects. The legal affairs system in the field of construction engineering, especially in the field of real estate construction engineering, is complicated, involving the conflict and protection of the legal rights of real estate developers, construction units, construction workers, actual builders, commercial banks, home buyers and other civil subjects, covering the concept of multi-dimensional rights such as the right to survival and development. It is of great significance to properly deal with the rights of relevant civil subjects in accordance with the law, clarify and determine the priority protection order of different civil rights, and give different civil subjects reasonable expectations of priority or inferior protection of their own rights from a legal point of view. it is of great significance to ensure the construction progress of real estate construction projects and promote the protection of the legitimate rights and interests of different civil subjects in the field of real estate construction projects and the degree of social trust. The construction contractor materializes his labor, materials, etc. into the construction of the project in the most direct way in exchange for the remuneration capital needed to protect his right to survival, and his rights based on the construction of the project should be protected in accordance with the law, and the protection should be limited. Based on the perspective of the priority compensation right of construction project price, this paper focuses on the analysis and summary of the main points of litigation practice on the priority compensation right of construction project price, in order to clarify the concept of rights and litigation practice tendency in the field of construction project and the priority compensation right of construction project price, and to promote the full understanding and effective exercise of the priority compensation right of construction project price by the right holders and relevant legal practitioners. The legal nature of the priority compensation right of the 2. construction project price. 1. Statutory rights that do not require registration Civil rights can be divided into legal rights and contractual rights based on the manner in which they are created and established. Based on the perspective of the current effective law, Article 807 of the the People's Republic of China Civil Code (the "Civil Code") is a legal provision on the right to priority compensation for the price of construction works. The right of priority compensation for the price of construction works is established by the Civil Code in the form expressly provided for by law, does not require a special agreement between the parties to the construction contract, does not require registration and publicity, and is a legal right. 2. Priority protection of rights Civil rights can be divided into priority rights and ordinary rights on the basis of whether protection is given priority or not. The Civil Code stipulates that the right holder of the construction project price shall give priority to the payment of the project discount or auction price, and gives the effect that the construction project price can be realized in priority over the ordinary right. 3. Typical contractual rights Civil contracts can be divided into typical contracts and atypical contracts based on whether the name is uniformly determined. The construction contract is a typical contract under the "Construction Contract" section of the Civil Code. The right to priority compensation for the construction project price occurs in the construction project contract and is a typical contract right. 4. from rights Civil rights can be divided into sovereign rights and subordinate rights based on the standard of master-subordinate relationship. The existence, determination and expiration of the claim for the construction project price is a prerequisite for the enjoyment and exercise of the right of priority compensation for the construction project price. If the claim for the price of the construction project is extinguished as a result of the completion of the performance, the priority right to be paid for the price of the construction project shall be extinguished. The priority right to be paid for the construction project price belongs to the subordinate right of the main right to claim the claim of the construction project price. 5. Non-security interests Based on the type of object of rights, civil rights can be divided into claims and property rights. The priority compensation right of the construction project price points to the price of the construction project and the project discount or auction price, which belongs to the property right, but does not belong to the legal mortgage, quality right or lien type of security right. In summary, the right to priority compensation for the construction price is a non-security interest that does not need to be registered as a statutory right of priority protection in a typical contract. 3. construction project price priority compensation right priority In the theory of civil law, due to the difference of the nature of the right, the legal protection effect of real right and creditor's right is different, and the real right takes precedence over the creditor's right. However, based on the consideration of public interest and other factors, there is a situation where claims take precedence over property rights. 1. Priority of demolition and resettlement The first paragraph of Article 7 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts" (referred to as the "Judicial Interpretation of Commercial Housing Sales Disputes") (Fa Shi [2003] No. 7) implemented on June 1, 2003 It is the priority of the demolition and resettlement person, also known as the source of legal basis for the priority of the special creditor's rights of the demolished person. The Judicial Interpretation of Commercial Housing Sale Disputes (Fa Shi [2020] No. 17) implemented on January 1, 2021 deleted the above provisions. Based on the principle that the law is not retroactive, the priority of the demolition and resettlement of the demolished person that has effectively existed before the implementation of the new judicial interpretation should not be denied, and its effectiveness should continue to be protected by law. The right to compensation for demolition and resettlement enjoyed by the demolished person in accordance with the law is the transformation of the property rights of the demolished. The demolition compensation and resettlement agreement is a reciprocal contract, which essentially means that the demolisher exchanges a specific house for the demolished house of the demolished person, and the house is exchanged for the house to guarantee the basic living and living needs of the demolished person. A clear agreement on the specific location and use of the compensation and resettlement house is a prerequisite for the establishment of the priority of demolition and resettlement. The priority of demolition and resettlement takes precedence over the rights of consumers of commercial housing and the priority of compensation for the price of construction projects. 2. The rights of consumers of commercial housing Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court, Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Prices (hereinafter referred to as "Reply on the Priority of Compensation for Construction Project Prices", abolished on January 1, 2021) (Fa Shi [2002] No. 16), and the Executive Office of the Supreme People's Court on<最高人民法院关于建设工程价款优先受偿权问题的批复>The reply on how to understand the provisions on giving priority to the protection of consumers' rights ([2005] Zhihe Zi No. 16) and the reply of the Supreme People's Court to the request for instructions from the Shandong Provincial Higher People's Court on the dispute over the housing sales contract of Jinan Caishi Villa ((2014) Zhihe Zi No. 23 and 24) are the sources of legal basis for the rights of commercial housing consumers. The term "rights of commercial housing consumers" comes from the "Minutes of the National Court Civil and Commercial Trial Work Conference" (referred to as the "Minutes of the Nine People's Conference") "126. [The relationship between the rights of commercial housing consumers and mortgage rights]", also known as consumer-type The priority of home buyers. According to the above provisions, buyers who have signed a purchase contract, used for the sole residential use, and have paid more than half of the contract price, their right to claim the delivery of the house, the right to return the purchase price in the case of the house has not been completed, etc., is protected by law, and takes precedence over the contractor's right to receive priority compensation for the construction project price. 3. Security interests In accordance with the provisions of the fourth division of the Civil Code, "Security interests" and the principle of property law, security interests include only mortgages, pledges and liens. The right of priority compensation of the construction project price has the value of security for the realization of the claim of the construction project price, but it does not belong to the category of security right, which can be referred to, but the provisions of the civil code security right can not be generalized. For example, the establishment of the right of priority compensation for the construction project price is not conditional on the delivery, lien or registration of the right of priority compensation for the construction project price. According to the provisions of Article 36 of the Interpretation (I) of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts (hereinafter referred to as "Judicial Interpretation I of Construction Disputes") (Fa Shi [2020] No. 25), the priority of compensation for the construction project price takes precedence over the mortgage. If there is not only the contractor's right of priority compensation for the construction price of the same construction project, but also the mortgage right of the construction project of the commercial bank, the priority compensation right of the construction project price takes precedence over the mortgage right. 4. Employee claims The first paragraph of Article 113 of the the People's Republic of China Enterprise Bankruptcy Law (the "Bankruptcy Law") is the main source of legal basis for employee claims. In the field of bankruptcy reorganization of market entities, employee claims include the wages and medical, disability subsidies, and pension expenses owed by the bankrupt, and the basic pension insurance and basic medical insurance expenses that should be transferred to the employee's personal account, as well as laws, The compensation that administrative regulations stipulate that it should be paid to employees also includes the pre-acceptance of employee fund-raising and the third-party advance of non-wage protection funds after acceptance. After acceptance, the third party of the wage protection fund advances the employee's claim, which is the subordinate employee's claim, and after the employee's claim is settled according to the property distribution plan, it takes precedence over the ordinary claim. Correspondingly, non-employee fund-raising before acceptance and third-party advances to employees before acceptance are ordinary claims. Post-acceptance of employee fund-raising and post-acceptance of non-employee fund-raising are common debts. According to the Supreme People's Court's Application.<中华人民共和国企业破产法>Article 3, paragraph 2, of the (II) on Certain Issues provides that security interests take precedence over employee claims and employee claims take precedence over ordinary claims. 5. Tax Priority Articles 45 and 46 of the the People's Republic of China Law on the Administration of Tax Collection and Article 113, paragraph 1, paragraph 2, of the Bankruptcy Law are the source of the legal basis for tax priority. Because taxes take precedence over unsecured claims, I .e. ordinary claims, tax claims have the legal effect of taking precedence over ordinary claims to be paid off, so they are called tax priority. In general, mortgages, pledges, and liens take precedence over tax priority, I .e., security interests take precedence over tax priority. Based on the information disclosure measures such as the taxpayer's tax arrears announcement system, the taxpayer's obligation to explain the tax arrears, and the security interest holder's right to investigate the tax arrears, the security interest holder should be aware of the defects in the rights of the security when accepting the security provided by the debtor, and can properly exclude the good faith of the security interest holder without knowledge. Therefore, if the tax priority occurs before the security right, the tax priority takes precedence over the security right. In accordance with Article 8 of the the People's Republic of China Enterprise income tax Law and Articles 34 and 35 of the regulations on the implementation of the the People's Republic of China Enterprise income tax Law, enterprises are allowed to deduct wages and salaries, basic social insurance premiums and housing accumulation funds when calculating taxable income. The deduction covers the claims of employees in insolvency proceedings. After deducting the employee's claim, the enterprise calculates the tax payable, forming a tax claim that takes precedence over ordinary claims. Therefore, the employee's claim takes precedence over the tax priority. 6. Ordinary claims According to the provisions of Article 118 of the Civil Code and the principle of equality of creditor's rights, the legal effect of creditor's rights formed by contract, infringement, etc. shall not be divided into advantages and disadvantages due to the order of establishment, and shall be equally protected by law. There is no distinction between the common claims that coexist, and there is no distinction between priority or inferiority, and the various priorities are unified. 7. Defects in rights (1) Lease According to the provisions of Article 725 and Paragraph 1 of Article 726 of the Civil Code, Article 14 and Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in Hearing Cases of Disputes over Urban Housing Lease Contracts (Fa Shi [2020] No. 17), and Article 28 of the Provisions of the Supreme People's Court on Auction and Sale of Property in Civil Execution by People's Courts (hereinafter referred to as "Provisions on Auction and Sale and Sale"), the lease cannot prevent the realization of the mortgage that has been established before the lease, and the people's court shall remove the lease that has an impact on the realization of the mortgage, and the lessee shall have the right of priority purchase under the same conditions. Because the right of priority compensation for the construction project price takes precedence over the security right, the lease on the construction project cannot prevent the realization of the right of priority compensation for the construction project price. (2) Preservation According to the Supreme People's Court's Application.<中华人民共和国民事诉讼法>According to Article 157 of the Interpretation and Article 28 of the Provisions on Auction and Sale of Property, the preservation of property shall not affect the realization of the real right for security, and the proceeds from the auction of property shall give priority to the settlement of the claims of the security interest holder and other priority recipients. Because the priority compensation right of the construction project price takes precedence over the security right, the property preservation measures of the construction project shall not affect the realization of the priority compensation right of the construction project price. (3) Transfer With reference to Article 206 of the Civil Code, the Supreme People's Court on the Application<中华人民共和国民法典>Article 43, paragraph 2, of the Interpretation of the Security System (the "Judicial Interpretation of the Security System") stipulates that the mortgaged property may be transferred during the mortgage period, and the mortgage right shall not be affected after the transfer, unless the registration publicity prohibits or restricts the transfer of the mortgaged property. The priority compensation right of the construction project price has the function of guarantee, and the effect of the transfer of the construction project on the priority compensation right of the construction project price may be determined by reference to the above-mentioned provisions. From the time when the contractor begins to fulfill its construction obligations, materialize the labor of construction workers and the value of engineering equipment and materials into the construction project, and the contractor shall fulfill its obligation to pay the price of the construction project, the construction project shall provide the legal guarantee function for the contractor's claim for the construction project price. The right of priority compensation for the construction project price is a legal right that does not require registration and publicity, and the contractor has the right to transfer the construction project in accordance with the law, and if the construction project is transferred, the right of priority compensation for the construction project price is not affected, and the contractor may claim the right of priority compensation for the construction project price from the transferee in accordance with the law. 8. Agreed waiver or limitation According to the provisions of Article 42 of the judicial interpretation of the construction project dispute, the right of priority compensation for the construction project price is the right enjoyed by the construction project contractor in accordance with the law. According to the principle of autonomy, the contractor shall have the right to dispose of his rights according to his own will and decide to waive or restrict the exercise of the right of priority compensation for the price of the construction project. According to the principle of good faith and credit, the legislative purpose of the priority compensation right of construction project price is to protect the right of survival of construction workers, and the contractor shall be bound by the legislative purpose of the priority compensation right of the construction project price. The contractor shall not waive or restrict the exercise of the right of priority compensation for the construction project price in violation of the purpose of the legislation, for example, by promising to the contractor to waive the right of priority compensation for the construction project price after the completion of the payment of the construction worker's remuneration, which is valid in accordance with the law because it does not harm the interests of the construction worker. The contractor abandons or restricts the exercise of the right of priority compensation for the construction project price against the legislative purpose, such as unilaterally promising to the contractor or maliciously colluding with the contractor to waive the right of priority compensation for the construction project price when the contractor is under pressure from the loan bank when applying for the mortgage loan for the construction project, requiring the contractor to issue a commitment to waive the right of priority compensation for the construction project price, it is invalid according to law because it seriously damages the interests of construction workers. 4. Construction project price priority compensation right subject. </中华人民共和国民法典></中华人民共和国民事诉讼法></中华人民共和国企业破产法></最高人民法院关于建设工程价款优先受偿权问题的批复>

2022-01-15

J & T Capital Watch... the nature of the difference and the internal resolution procedures to be performed.

There are different views on the nature of the margin make-up in the academic circles and judicial practice, the author through consulting the relevant literature and judicial cases, found that the nature of the margin make-up and the internal resolution procedures that should be performed still have room for discussion, this paper intends to analyze and discuss the above issues from the perspective of case analysis. I. Nature of a deficiency make-up agreement The nature of the differential make-up agreement is currently divided into three main views in judicial practice, as follows: (I) promise to say A guarantee contract is a contract in which the guarantor and the creditor agree that when the debtor fails to perform the debt due or the circumstances agreed upon by the parties occur, the guarantor is required to perform the debt or assume responsibility. The guarantee contract is the subordinate contract of the main creditor's debt contract. If the main creditor's rights and debts contract is invalid, the guarantee contract is invalid, unless otherwise provided by law. It is common in judicial practice to characterize the "Deficiency Make-up Agreement" as a guarantee contract, and it is also one of the views held by many scholars. Case: dispute over guarantee contract between huarong international trust co., ltd. and kaidi ecological environment technology co., ltd. [(2019) supreme law civil judgment no 560]] Referee's point of view: Whether it is from the core provisions of the "Deficiency Make-up Contract" for the interpretation of the text, or from the interpretation of the contract system, the nature of the contract is in line with the legal characteristics of the guarantee contract. (II) Debt Joins Say According to the general principle of civil law, debt accession means that a third party joins the existing debt relationship, and in terms of the debt itself, the debtor is jointly and severally liable to the creditor, and its legal effect is equivalent to the debt accession creating an independent debt for itself. In contrast to a guarantee, the debt of the debtor is heavier than the debt of the guarantor. Case: Dispute over Securities Trading Contract between Zou Chenghui and Huaxin International Trust Co., Ltd. [(2021) Jingminzong No. 97]] Referee's view: The nature of Zou Chenghui's commitment to make up the difference to Huaxin Trust Company is a debt addition, not a guarantee or guarantee, let alone a subordinate attribute. (III) independent contract says There is also a view that the obligation to make up the difference as a credit enhancement measure, the "difference to make up the agreement" should be an independent contract, not the company to provide external guarantees. Case: Contract Dispute between Anhui Zhongan Financial Asset Management Co., Ltd. and Gansu Gangtai Holding (Group) Co., Ltd. [(2020) Wan 01 Min Chu No. 639]] Referee's point of view: The "Difference Make-up Agreement" in this case is an independent contract, which should be distinguished from the "Guarantee Contract", and the obligation to make up the difference stipulated in the "Debt Restructuring Difference Make-up Contract" is the direct compensation obligation of the difference-making person to the creditor under certain circumstances. To sum up the three cases, the difference in different situations is of a different legal nature. Although the current law of China does not clearly define the nature of the difference make-up agreement, but the Minutes of the National Court Civil and Commercial Trial Work Conference 91. [Nature of the letter-adding document] and the Supreme People's Court on the application of<中华人民共和国民法典>Article 36 of the Interpretation on the Guarantee System (that is, the third party provides similar commitment documents such as balance compensation and liquidity support to creditors as credit enhancement measures, which means to provide guarantee. If the creditor requests the third party to bear the responsibility, the people's court shall determine whether it is guarantee or debt joining according to law, and if it is difficult to determine whether it is guarantee or debt joining, the people's court shall determine it as guarantee. When the commitment document provided by the third party to the creditor does not conform to the guarantee and does not conform to the debt accession, the obligations and responsibilities of the third party to be performed are determined on the basis of the commitment document) and so on. In practice, the company should make a difference-making agreement in accordance with the law, taking into account the true purpose of the agreement and the true intention of the parties. II. Internal company resolution procedures to be performed to make up the difference At present, the laws and regulations have not yet made clear provisions on the specific procedures to be performed for the difference make-up matters, and this paper intends to make a preliminary discussion on the internal resolution procedures to be performed for the difference make-up based on the different nature of the difference make-up. The internal resolution procedure to be performed (I) the shortfall of a guarantee nature. Case: Dispute over Financial Loan Contract between Chongqing Jieer Medical Equipment Co., Ltd. and Chongqing Jiulongpo Sub-branch of Industrial and Commercial Bank of China [(2018) Civil Judgment No. 165 of Chongqing Minchu]] Judging point of view: Article 16 of the company law stipulates that "if a company invests in other enterprises or provides guarantee for others, it shall be decided by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association; if there is a limit on the total amount of investment or guarantee and the amount of individual investment or guarantee in the articles of association, it shall not exceed the prescribed limit. Where a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders". In this case, in accordance with the provisions of the articles of association of the Company (the obligor of the difference payment) when the "Letter of Commitment to Make up the Difference" was issued on November 20, 2017, a decision on the Company's investment in other enterprises or the provision of guarantees for others shall be made with the unanimous consent of the Board of Directors in advance, otherwise the decision shall be invalid. Jieer Company and ICBC Jiulongpo Sub-branch (creditors) both recognize that the Letter of Commitment for Deficiency Compensation is a guarantee. However, ICBC Jiulongpo Sub-branch has not submitted evidence to prove that the issuance of the Letter of Commitment for Deficiency Compensation has been unanimously approved by the shareholders and the board of directors of Jieer Company. Therefore, the creditor's claim that the obligor for deficiency compensation shall bear joint and several guarantees is not supported. Lawyer's Summary: As far as the difference compensation agreement with the nature of guarantee is concerned, the relevant cases (for example, the Supreme People's Court (2019) Supreme Law Civil Judgment No. 560, (2019) Supreme Law Civil Judgment No. 877) have been clearly defined, and the resolution procedures of the board of directors or the shareholders' meeting shall be carried out in accordance with the Company Law and the articles of association of the company. (II) internal resolution procedures to be performed to make up the difference in the nature of debt accession. Case: Dispute over Financial Loan Contract between Beijing Branch of China CITIC Bank Co., Ltd. and Letv Information Technology (Beijing) Co., Ltd. [(2019) Supreme Law No. 1438]] Judgment View: The Supreme People's Court held that although LeTV's act of joining its shareholder LeTV Holdings's debt is not an act of providing guarantees for shareholders, the company's commitment to the debt to join this direct responsibility should be resolved by the general meeting of shareholders. If the company's participation in shareholder debt is not regulated, it will undoubtedly indulge the parties to circumvent the provisions of Article 16 of the Company Law by joining the debt, making the bar useless. LeTV's intention to join the debt of its shareholder LeTV Holdings has not been passed without a resolution of the general meeting of shareholders or a resolution of the board of directors, which violates the relevant provisions of the "Company Law. As a listed company, LeTV's articles of association are publicized to the public. The articles of association have clear provisions on the company's external guarantees, resolutions of the general meeting of shareholders, and the powers of the board of directors. According to the "Company Law" and the regulations of the industry regulatory authorities, China CITIC Bank should do the necessary duty of care for LeTV's debt joining behavior. Compared with the guarantee liability, the debt borne by the joiner is heavier than that of the guarantor, so the debt joining should comply with the resolution procedure of the general meeting of shareholders or the board of directors stipulated in Article 16 of the Company Law. As a result, it is determined that CITIC Bank is at fault and cannot be identified as a bona fide counterpart. The letter issued by LeTV to CITIC Bank was deemed invalid due to failure to perform the procedures of the shareholders meeting or the board of directors resolution, and it is not binding on LeTV. Lawyer's Summary: As far as the difference compensation agreement with the nature of debt accession is concerned, on the one hand, the liability for debt accession is obviously heavier than that for guarantee contract. At this time, if the agreement is not subject to the internal resolution procedure of the company, according to the legal principle of "light to light", the difference compensation agreement is likely to be deemed invalid. On the other hand, article 23 of the Ninth Minute makes it clear: "The legal representative agrees with the debtor in the name of the company to join the debt and notifies the creditor or expresses to the creditor his willingness to join the debt, and the validity of the agreement is dealt with in accordance with the relevant rules of this summary on the company's provision of security for others." That is, debt accession must be based on the resolution of the company's shareholders (general) meeting, board of directors and other corporate organs as the basis and source of authorization. Therefore, the shortfall that is deemed to be in the nature of debt accession shall be subject to the resolution procedures of the board of directors or shareholders' meeting in accordance with the Company Law and the Articles of Association of the Company. (III) internal resolution procedures to be performed for the shortfall of an independent contract. Case: Contract Dispute between Anhui Zhongan Financial Asset Management Co., Ltd. and Gansu Gangtai Holding (Group) Co., Ltd. [(2020) Wan 01 Min Chu No. 639]] Judgment point of view: the court held that judging from the contents of the contract signed on the same day, the "debt restructuring balance compensation contract" is not the same as the "debt restructuring guarantee contract". The "debt restructuring balance compensation contract" is an independent contract different from the guarantee contract, and the internal examination and approval decision-making procedures for providing external guarantee stipulated in Article 16 of the the People's Republic of China Company Law and the articles of association of Gangtai Holding Company are not of course applicable. The Deficiency Agreement in this case is an independent contract and should be distinguished from the Guarantee Contract. The obligation to make up the difference stipulated in the "Debt Restructuring Balance Making up Contract" is the obligation of the balance making up the difference to the creditor under certain circumstances. The obligation to make up the difference cannot be generalized to the act of providing external guarantees, and the company cannot provide guarantees for others. The relevant provisions of the resolution of the board of directors or the shareholders' meeting or the shareholders' meeting. The debtor's resolution to make up the shortfall should be valid as an independent contract rather than a guarantee contract, even if it has not been subject to an internal decision-making process. Lawyer's Summary: As far as the difference-making agreement is considered as an independent contract is concerned, there are different judgments in judicial practice, and the author tends to think that whether the difference-making agreement with an independent contract needs to perform the internal resolution procedure of the company needs to be judged in combination with the specific content of the difference-making agreement. Three this article summary and suggestion Based on the above analysis, the author recommends the following: 1. In practice, based on the principle of civil law autonomy, judicial cases generally affirm the validity of the obligation to make up the difference. However, in order to avoid disputes, the parties should have a clear understanding of the purpose to be achieved by the difference replenishment document when designing the difference replenishment document, whether it is intended to be used as a guarantee, debt addition or other form of agreement, it is recommended that the relevant agreement be clearly defined around the purpose to be achieved. 2. The difference compensation agreement with the nature of guarantee or debt accession shall perform the internal resolution procedures of the company in accordance with the provisions of Article 16 of the Company Law and the articles of association of the company. There is some dispute as to whether the difference compensation agreement identified as an independent contract requires a corresponding company resolution. For prudent consideration, the author suggests that creditors should also simultaneously review whether the subject of the difference compensation obligation has fulfilled the internal resolution procedure of the company. In particular, as far as listed companies are concerned, in accordance with the Securities Law, the notice on regulating the external guarantee behavior of listed companies (CSRC [2005] No. 120), the measures for the Administration of Information Disclosure of listed companies (revised in 2021) and the Supreme people's Court on the application<中华人民共和国民法典>有关担保制度的解释》规定，上市公司提供差额补足，除须经有权机构的决议程序外，还需要经过公告信息披露程序，否则差额补足协议也存在被认定为无效的法律风险。  </中华人民共和国民法典></中华人民共和国民法典>

2022-01-14

Administrative Litigation Vision (III) | Administrative Litigation Plaintiff Qualification

Foreword The plaintiff of administrative litigation refers to the citizens, legal persons and other organizations who are dissatisfied with the administrative act and bring a lawsuit to the people's court in their own name in accordance with the provisions of the Administrative Procedure Law. The plaintiff qualification of administrative litigation is the legal ability of citizens, legal persons or other organizations to bring administrative litigation to the court and become the plaintiff of administrative litigation. It is related to who can bring administrative litigation and start the judicial review procedure of administrative action. The plaintiff qualification is another important issue after the scope and jurisdiction of administrative litigation, which is of great significance to the theoretical research and judicial practice of administrative litigation. The Concept and Nature of Plaintiff Qualification in 1. Administrative Litigation The qualification of the plaintiff in administrative litigation refers to the qualification of the plaintiff to file an administrative lawsuit, also known as the plaintiff's qualification, which is a necessary element for citizens, legal persons and other organizations to request the court to protect their legitimate rights and interests infringed by administrative acts. The scope of the plaintiff's qualification determines the scope of the subject under judicial protection. For the prosecutor, it determines who can request the court to protect their legitimate rights and interests in their own name. For the court, it is the court to accept the prosecution. The basis determines which people can be accepted by the court. The plaintiff qualification of administrative litigation is the basis of the administrative litigation system, it is an issue of administrative litigation procedure, which does not involve substantive issues. The recognition of the plaintiff's qualification is not the same as the recognition of the plaintiff's right to win the case. Whether the plaintiff is qualified or not directly determines whether the case can enter the litigation procedure. If the plaintiff is not qualified, the court directly decides not to accept the case or dismiss the lawsuit after accepting it. The plaintiff in administrative litigation is one of the participants in administrative litigation, and not all citizens, legal persons or other organizations can bring a lawsuit against the administrative act of the administrative organ. The qualification of plaintiff in administrative litigation is a key issue related to who is qualified to initiate the judicial review of administrative actions. Its essence is how to deal with the relationship between citizenship and administrative power, judicial power and administrative power. The establishment of the qualification of the plaintiff in administrative litigation should not be too wide or too narrow. It is necessary to balance the relationship between protecting the legitimate rights and interests of the relative person, preventing the abuse of administrative litigation procedures, and avoiding hindering administrative efficiency. An accurate definition of the plaintiff qualification in administrative litigation is conducive to protecting the legitimate rights and interests of citizens and supervising the administration of administrative organs in accordance with the law. Contents of the Plaintiff Qualification in 2. Administrative Litigation The first paragraph of Article 25 of the "Administrative Litigation Law" stipulates: "The counterpart of an administrative act and other citizens, legal persons or other organizations that have an interest in the administrative act have the right to file a lawsuit." This is the general provision of the law of our country to the subject with the qualification of plaintiff in administrative litigation. According to this provision, two conditions must be met for the plaintiff qualification of administrative litigation, one is that the subject should be the administrative counterpart or other citizens, legal persons or other organizations, and the other is that it has an interest in the administrative act. Therefore, to have the qualification of the plaintiff subject of administrative litigation, the following conditions need to be met at the same time: (I) have the ability to litigate The ability of litigation rights, also known as the ability of the parties or the ability to participate in litigation, refers to the ability of the parties to obtain the legal status of the plaintiff or defendant in the litigation, here refers to the ability to obtain the legal status of the plaintiff. As far as the plaintiff in administrative litigation is concerned, the subjects with the ability to litigate can only be citizens, legal persons and other organizations. Under special circumstances, the law also provides rights remedies for the deceased and terminated legal persons and other organizations that no longer have the ability to rights. The second and third paragraphs of Article 25 of the "Administrative Procedure Law" stipulate that if a citizen who has the right to bring a lawsuit dies, his close relatives may bring a lawsuit. If the legal person or other organization that has the right to bring a lawsuit terminates, the legal person or other organization that has the right to inherit it may bring a lawsuit. It should be noted that administrative litigation is not a simple type of litigation of "people suing officials". Administrative agencies (such as legal persons in the type of legal persons) can also act as plaintiffs against other administrative entities, that is, "officials suing officials". The ability of administrative litigation rights is the same as the ability of civil litigation rights, and the subject who does not have the ability of litigation rights cannot bring a lawsuit as a plaintiff. (II) have litigation capacity Litigation capacity, also known as litigation capacity, is the ability of the parties to participate in litigation in person or appoint an agent to exercise their litigation rights and assume litigation obligations with their own actions. Citizens who bring a lawsuit need to have the ability to litigate, those who do not have the ability to litigate cannot bring a lawsuit in their own name, and their legal representatives are required to act on their behalf. (III) has an interest relationship with the accused administrative act Whether it is the administrative counterpart or other citizens, legal persons and other organizations that can initiate administrative litigation, they must have an interest in the administrative act they sue. The element of interest is the core element of the plaintiff's qualification in administrative litigation, and it is also the difficult and controversial point to judge the plaintiff's subject qualification. Combined with legal theory and trial practice, the elements of interest are summarized: 1. Existence of a right or interest conferred and protected by a law If the rights and interests of the plaintiff to apply for relief are not required to be protected by law, then even if the plaintiff believes that the administrative action has caused damage to himself, there is no need to resort to justice for protection. Such interests are generally limited to public law interests, but may be extended to private law interests where there are special provisions in the law. For example, the administrative act being sued as stipulated in Article 12, Paragraph 1 of the Interpretation of the Administrative Litigation Law involves its neighboring rights or the right to fair competition. 2. The right or interest is vested in the plaintiff and the plaintiff brings the action in his own interest. The plaintiff must bring a lawsuit for his own rights and interests. If he sues for the interests of others or the public, he shall not be qualified as a plaintiff. Taking complaints and reports as an example, Article 12, Item 5 of the Judicial Interpretation of the Administrative Litigation Law stipulates that "in order to protect one's own legitimate rights and interests, the administrative agency with the responsibility of handling complaints has made or failed to deal with the complaint" is related to the administration. One of the situations in which the act has an interest. If complaints and reports are to have the elements of interest, the whistleblower must be for his own legitimate rights and interests [see (2013) case no 14 of line he zi]. The "Meeting of the First Circuit Court of the Supreme People's Court on Several Issues Concerning the Application of Administrative Trial Law" issued on July 23, 2018 explained the plaintiff qualification of the whistleblower. As consumers, recipients of services, competitors, victims, or claimants of rewards for reporting matters, in order to safeguard their own legitimate rights and interests, report the illegal acts of operators to administrative organs with statutory powers of investigation and punishment, whistleblowers who apply for government information disclosure on the handling of reported matters shall have an interest in the government information disclosure reply or non-reply act of the statutory authority, and shall be qualified as a plaintiff. Ordinary citizens only use the constitutional right to report and accuse to the statutory authority to report the illegal business activities of the operator and request to be investigated and dealt with. The whistleblower applies for government information disclosure on the handling of the reported matter, usually with the statutory authority. The government information disclosure response behavior or non-response behavior has no interest and does not have the plaintiff qualification. However, the administrative organ promises to have a reward for reporting, except for the whistleblower who applies for the disclosure of relevant information for obtaining the reward. 3. The right or interest may have been infringed by the accused administrative act and the law requires the administrative organ to take such interest into account when it acts. With regard to the standard of proof of evidence submitted by the prosecutor at the prosecution stage to prove that his legitimate rights and interests have been infringed, as long as the prosecutor in administrative litigation has provided preliminary evidence to prove that his legitimate rights and interests are likely to be infringed, it is not required to fully prove that his legitimate rights and interests have actually been infringed [see (2016) Supreme Law Law Application No. 1759]. In addition, the rights and interests to be protected by the plaintiff must be the rights and interests to be protected by the law that the administrative organ needs to consider when making the administrative act, that is, whether the administrative organ is required to consider, respect and protect the rights and interests to be protected by the plaintiff when making the administrative act and whether the administrative organ is required to consider, respect and protect the rights and interests to be protected by the plaintiff if it needs to be considered, on the contrary, it does not have [see (2017) the highest law line application No. 169]. 4. Other circumstances with the qualification of plaintiff in administrative litigation as prescribed by law (1) Administrative public interest litigation The third paragraph of Article 25 of the administrative procedure law stipulates that the people's Procuratorate shall have the qualification of plaintiff in administrative litigation for the interests of the state or the public interest. (2) Plaintiff qualification of lessee In the "Meeting of the First Circuit Court of the Supreme People's Court on Several Issues Concerning the Application of Administrative Trial Law", it is generally believed that the lessee has no interest in the expropriation decision, the expropriation compensation decision, the expropriation compensation agreement behavior, and the compulsory demolition of the house, and does not have the plaintiff qualification. However, if the lessee has an inseparable and significant addition to the expropriated house, or independently carries out business activities in the leased house in accordance with the law, or forcibly demolishes the house, the lessee has an interest in the expropriation decision, the expropriation compensation decision, the expropriation compensation agreement and the compulsory demolition of the house, and has the qualification of the plaintiff. Circumstances in which the 3. is not a plaintiff (I) parties do not have the ability to participate in administrative proceedings The people's court may, at any stage of the proceedings, examine ex officio whether the plaintiff has the capacity to participate. If the plaintiff is found to be incapable of participation, the prosecution does not meet the statutory conditions, and the people's court may rule to dismiss the prosecution without further review of other prosecution conditions and without notifying the defendant to reply. Referring to (2017) the case of Supreme Law Bank Shen No. 6549, the retrial applicant filed an administrative lawsuit in the name of "Huaiyang County No.2 Chemical Fertilizer Plant", claiming that although he did not apply for a business license, he belonged to a "collective enterprise" of the Moto Commune ". The Supreme People's Court believes that "obtaining a business license after registration in accordance with the law" is a legal condition for township enterprises and street enterprises to become "other organizations. Therefore, the court of first instance ruled to dismiss the lawsuit on the grounds that the retrial applicant filed a lawsuit in the name of Huaiyang County No. 2 Fertilizer Plant, but could not provide a legal business license and could not prove that Huaiyang County No. 2 Fertilizer Plant had the status of a legal person or other organization. (II) and administrative acts have no interest in public law. After determining that the plaintiff has the ability to participate in litigation, it is often necessary to focus on the "interest relationship" between the plaintiff and the accused administrative act, which is limited to legal interests and does not include reflective interests. Except for special circumstances, it only means that citizens, legal persons or other organizations have an interest in public law with administrative acts and form a relationship of rights and obligations in the field of public law, and they are not satisfied with the administrative act, and they have the right to bring administrative proceedings. The following is an analysis and interpretation of "no public law stake" in the light of laws and regulations and typical cases. 1. If a citizen, legal person or other organization files an administrative lawsuit on the site selection opinion of the construction project of the urban and rural planning department on the ground of infringement of environmental rights, it is generally considered that there is no legal interest. With reference to (2017) the Supreme Law Application No. 4361 case, the Supreme Court proposed that only when the rights and interests that the prosecutor claims to protect fall within the scope of protection of the legal norms of the administrative entity on which the administrative organ makes the administrative act, the prosecutor has the qualification of the plaintiff. On the other hand, if the prosecutor has certain rights and interests, but it is not the administrative organ that needs to consider when making the administrative act, or if the prosecutor does not have the rights and interests that the administrative organ needs to consider when making the administrative act, the people's court should not recognize the plaintiff's subject qualification. 2. After the original legal representative of a state-owned enterprise is removed from office, he cannot bring an administrative lawsuit in the name of the enterprise. With reference to (2016) the Supreme Law Law No. 2057 case, after the original legal representative of a state-owned enterprise was removed from his post, he used the invalidated official seal to file an administrative lawsuit in the name of the company, which is not an expression of the true meaning of the enterprise, and the original legal representative does not have the qualification of plaintiff. And if the establishment and establishment of the company has no legal interest with the individual citizen, the citizen cannot file an administrative lawsuit in the name of the individual against the administrative agency's approval and decision to establish the company. 3. Retired faculty and staff of public schools who are dissatisfied with the cancellation of public schools by the people's government at or above the county level and file an administrative lawsuit do not have the qualifications of the plaintiff Referring to (2016) the case of Supreme Law Application No. 359, according to the provisions of the Education Law and in combination with local conditions, the government's actions such as the establishment, modification and termination of primary and secondary schools within its jurisdiction are aimed at the public institution legal person of the secondary school under its direct management, and do not infringe upon the personal rights and property rights enjoyed by the retired teaching staff of the secondary school. Therefore, there is no legal basis for the retired teaching staff to file a lawsuit in their personal name, does not have the plaintiff subject qualification. 4. The people's government's approval of the transfer of part of the company's equity has not had a direct impact on the rights and obligations of the company's ordinary creditors. At this time, the general creditor does not have the plaintiff's subject qualification to bring an administrative lawsuit. Referring to the case of He Zongyu v. Zhumadian Municipal People's Government for approving the transfer of state-owned shares, the Supreme People's Court believes that Zhumadian Municipal People's Government's approval of the transfer of 80% shares of Dongfang Company will lead to the change of internal shareholders and the change of shareholders' shareholding ratio of Dongfang Company, but will not affect the creditor's rights and interests of the company's creditors. Dongfang Company, as an independent enterprise legal person, will not change or eliminate the civil subject of its property, nor will it have a direct impact on the rights and obligations of ordinary creditors of Eastern Company. Therefore, the applicant for retrial does not have the qualification of the plaintiff to bring the administrative action in this case. 5. The original owner has no interest in the government's recovery of the right to use state-owned land after the house has been expropriated. Referring to Xiong Zongqiang's case of land administration and administrative reconsideration of the respondent Yichang Municipal People's Government and Hubei Provincial People's Government, the Supreme People's Court held that the people's government's expropriation decision directly led to the legal effect of the change of real right, and the ownership of the relevant house belonged to the state, and the expropriated person no longer enjoyed the ownership of his house. The expropriation of urban houses also means the recovery of the right to use construction land. If the houses are expropriated according to law, the right to use state-owned land is also recovered at the same time. If the original land use right holder is not satisfied with the expropriation decision and compensation behavior, he can protect his legitimate rights and interests through administrative reconsideration, administrative litigation and other legal channels, but for the original house owner or land use right holder to sue the administrative organ after the house is expropriated according to law The act of recovering the state-owned land use right or the higher-level government's approval for the recovery of the land use right, because it no longer has an interest, its appeal will not be supported by the court. 6. There is no legal interest between the land leaseholder and the cancellation of the collective land use certificate. Referring to the case of Gao Heping and Han Xiaopeng v. Anyang Wenfeng District People's Government of Land Administration, the Supreme Court held that Gao Heping and Han Xiaopeng, as land leaseholders, had no legal interest in the cancellation of the collective land use certificate, and that the two did not have the qualification of the plaintiff to file a lawsuit in this case. 7. Item

2022-01-13

Real estate perspective: the identification and priority of "consumer buyers".

1. Introduction By the intensified market competition and the continued impact of the epidemic at home and abroad, some small and medium-sized real estate enterprises are not doing well, and even the capital chain is broken, debt-ridden, active or passive into bankruptcy proceedings. At this time, in order to safeguard their own interests, some buyers will claim to the bankruptcy administrator or the court to directly obtain the ownership of the property involved in the case as a consumer buyer or superior rights to other creditors, so how should they be identified in judicial practice as a consumer buyer? 2. Related Cases and Referee Views (I) consumer buyers should be living for the purpose of the buyer, if the parties based on the agreement to sign a purchase contract, the purpose of buying a house is to realize the creditor's rights, not for life, housing needs, does not belong to the consumer buyers. Therefore, it is not possible to enjoy the priority based on the status of consumer buyers. Case 1: Ding Xiaofang, Weihai Guangxin Real Estate Development Co., Ltd. and other bankruptcy claims confirmation disputes (Supreme People's Court (2020) Supreme Law Minshen No. 3340) The court held that: in accordance with Article 2 of the Supreme People's Court's Reply on the Priority of Compensation for Construction Project Prices, and Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, consumer The buyer of sex should be a buyer for the purpose of living and living. In this case, in the case of Lanfang's inability to repay its loan, the two parties reached an agreement to repay the debt in kind and signed the "Top House Agreement", which agreed that Guangxin Company would offset the property involved in the case to Lanfang, and made a clear agreement on the area and amount of the property. Ding Xiaofang's wife Yu Xiaoxia and Yu Lanfang are related. After Yu Lanfang's introduction, he signed the "Commercial Housing Sales Contract (presale)" with Guangxin Company and paid the corresponding money to Yu Lanfang. Based on the facts of this case, the borrowing behavior between Guangxin Company and Yu Lanfang, the behavior of repaying debts with houses, the payment behavior between Ding Xiaofang and Yu Lanfang, and the behavior of buying and selling houses between Ding Xiaofang and Guangxin Company are interrelated and inseparable. It can be considered that Ding Xiaofang formed the fact of buying houses based on the behavior of repaying debts with houses of Guangxin Company and Yu Lanfang, only when it was known that Guangxin Company gave Lanfang the real estate involved in the case and paid the house purchase money by using the principal and interest of Lanfang's loan, did it sign the Commercial Housing Sale Contract (presale) with Guangxin Company. There was no typical house sale relationship between consumers and developers between Ding Xiaofang and Guangxin Company, which was only the performance object of the house debt repayment agreement between Lanfang and Guangxin Company, the purpose of the purchase is to help Lanfang realize her creditor's rights. In addition, the court found out that Ding Xiaofang and his wife Yu Xiaoxia bought more than one set of real estate in Baidu City District. Therefore, the original court found that Ding Xiaofang was not a consumer buyer and rejected his claim for real estate transfer registration, which was not improper. Case 2: Zhou Lijuan and Changshu Xinmao Real Estate Development Co., Ltd. (hereinafter referred to as Xinmao Company) Case of Dispute over Commercial Housing Sales Contract (Jiangsu Changshu People's Court (2020) Su 0581 Minchu No. 5171) The court held that the focus of the dispute in this case is whether Zhou Lijuan belongs to a consumer buyer, whether the "commercial housing sales contract" involved in the case should continue to be performed, and whether it has been terminated. Article 2 of the Reply of the Supreme People's Court on the Priority Compensation Right of Construction Project Price stipulates that after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority compensation right of the project price enjoyed by the commercial housing. Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court stipulates that in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise, which meets the following circumstances and whose rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court is sealed up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. With reference to the aforementioned legal provisions, Zhou Lijuan used the project funds owed by Haizhu Company to offset the purchase price, and did not actually pay the house price to Xinmao Company. The commercial housing sales contract involved in the case is a specific operation method for fulfilling the housing agreement, so Zhou Lijuan obviously does not belong to For consumer buyers, Xinmao Company has entered bankruptcy procedures. If it continues to perform the contract, it will constitute debt repayment to individual creditors, which does not comply with the law. (II) consumers should purchase houses to meet their living needs, not for business or other reasons. The buyer of the shop who has paid most of the purchase price is not for residential needs, nor is it a consumer buyer. Can not enjoy the priority based on the living needs. Case: Wang Yongmei and Zunyi Ganhao Real Estate Development Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute (Guizhou Zunyi Intermediate People's Court (2021) Qian 03 Min Zhong No. 2290) The court held that the focus of the dispute in this case is whether the appellant belongs to the consumer buyer. According to the provisions of Article 2 of the Reply of the Supreme People's Court on the Priority Compensation Right of Construction Project Price, "After the consumer delivers all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority compensation right of the project price enjoyed by the commercial housing, giving priority protection to consumers who deliver all or most of the money for the purchase of commercial housing is based on the principle of social policy that survival interests outweigh business interests and special rules set up to protect consumers' right of residence. The scope of the provision should be strictly limited in its application and should not be interpreted in an expanded manner. Consumers should buy houses to meet their living needs, not for business or other reasons. In this case, according to the facts found out, both parties agreed that "Wang Yongmei purchased shops 1025 and 1026 on the first floor of building 2, sunshine waterfront phase ii developed by Ganhao company, which are used for commercial purposes". it can be seen that the nature of the house involved in the case purchased by the appellant is a shop, not for residential needs, and there is no special interest for priority protection. Therefore, the appellant believes that he has paid more than 80% of the house purchase price, and the appeal reason based on the priority protection of the personal rights of consumer house purchase cannot be established and will not be adopted. (III) the purchase of housing for the purpose of living and living, it belongs to the consumer buyer. However, if the proportion of payment does not reach the lower limit of the proportion of housing payment for consumer buyers, it can not be given priority protection as consumer buyers. Case: Liu Rongzhi and Zunyi Ganhao Real Estate Development Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute (Guizhou Zunyi Intermediate People's Court (2021) Qian 03 Min Zhong No. 2350) The court held that the focus of the dispute in this case is: whether the 1. Liu Rongzhi belongs to consumer housing and whether the right of residence should be given priority protection; ...... on focus one. According to Article 2 of the Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Price, it is stipulated that "after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority of compensation for the project price enjoyed by the commercial housing, giving priority protection to consumers who deliver all or most of the money for the purchase of commercial housing is based on the principle of social policy that survival interests outweigh business interests and special rules set up to protect consumers' right of residence. The scope of the provision should be strictly limited in its application and should not be interpreted in an expanded manner. At the same time, with reference to Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, the People's Court shall support the following circumstances if the buyer objects to the commercial housing registered in the name of the executing real estate development enterprise during the enforcement of monetary claims: (1) A legal and effective written sales contract has been signed before the people's court seals up; the commercial house purchased by the (II) is used for living and there is no other house for living under the name of the buyer; the price paid by the (III) exceeds 50% of the total price agreed in the contract. In this case, although Liu Rongzhi and Fang Yunyun bought the house, the house price paid accounted for 43.38 of the total house price, which did not reach the lower limit of the proportion of the house price paid by consumer buyers in the aforementioned legal provisions, therefore, Liu Rongzhi believes that he belongs to the consumer buyers should be given priority protection of the appeal reason can not be established, should not be adopted. 3. Summary After the enterprise enters the bankruptcy procedure, the creditor's right relief and the protection problem is particularly prominent. At present, the Approval of the Supreme People's Court on the Priority Right to Compensation for the Price of Construction Projects has lapsed. The provisions relating to the protection of the rights and interests of "consumer buyers" are reflected in Article 29 of the newly amended 2020 Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, which provides for the priority of buyers when certain conditions are met in the course of enforcement. Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court stipulates that in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise and meets the following circumstances and its rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court is sealed up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. Compared with the past, the court's determination of consumer buyers is more stringent. If the housing sales contract is essentially a debt-for-property agreement, the purchase of a house for the purpose of eliminating monetary debts, regardless of whether the house used for debt repayment is a residential or commercial house such as a shop. For housing, buyers cannot be recognized as consumer buyers and enjoy priority. The buyer of the shop who has paid most of the house purchase price is not for residential needs, nor can he enjoy the priority based on the needs of residential survival. Even if the purchase of housing for the purpose of living. However, if the proportion of the house price paid to the total house price does not reach the lower limit of the proportion of the house price paid by the consumer buyer in the aforementioned legal provisions, it cannot be given priority protection as a consumer buyer.

2022-01-13

Viewpoint... A brief analysis of the divorce procedure of a person without civil capacity.

【Abstract】 According to the provisions of the the People's Republic of China Civil Code, divorce is divided into divorce by agreement and divorce proceedings. Divorce by agreement requires both husband and wife to divorce voluntarily, sign a written divorce agreement, and apply for divorce registration in person at the marriage registration office. Because a person without civil capacity cannot identify his own behavior, a person without civil capacity cannot agree to divorce, and divorce can only be done through litigation. This paper will make some preliminary discussion on the procedure and operation skills of divorce proceedings for persons without civil capacity. 【Key words】divorce agreement pre-special procedures divorce procedures and relief channels As a marriage lawyer, I have encountered a number of divorce cases of persons with no capacity for civil conduct this year, especially when one of the spouses loses capacity due to an accident, and the other party fails to perform the obligation of support after receiving compensation. In order to protect their legitimate rights and interests, close relatives of the person with no capacity for civil conduct often choose to sue for divorce on their behalf. Now, with the emergence of some uncertain factors such as diseases and accidents, people with no capacity for civil conduct are also increasing. In order to safeguard their legitimate rights and interests, the author now discusses the system and procedures for people with no capacity for civil conduct to sue for divorce in combination with relevant laws. The reason for the divorce of a person without civil capacity in the 1. is not applicable to the divorce by agreement. First of all, people without civil capacity can only divorce through litigation. According to Article 12 of the "Marriage Registration Regulations": If a person without civil capacity or a person with limited civil capacity handles divorce registration, the marriage registration authority will not accept it. Therefore, persons without civil capacity cannot divorce by registering divorce with the marriage registration authority, but can only divorce through litigation. Secondly, because divorce by agreement requires the complete voluntariness of both husband and wife, people without civil capacity do not have this realistic condition, so divorce by agreement cannot be carried out. The most important condition of divorce by agreement is that both husband and wife divorce voluntarily. This kind of voluntary behavior is a voluntary behavior from the heart, excluding all external obstruction and interference. Therefore, both parties must submit the application to the marriage registration authority in person. The divorce application is an expression of the true meaning of the parties applying for divorce. The two parties applying for divorce registration by agreement reach an agreement on the division of family common property, creditor's rights and debts, the upbringing of children or the help to the party with difficulties in life, and consciously implement the agreement. None of the above acts can be completed without civil capacity, so divorce by agreement cannot be carried out. Again, divorce proceedings can better protect the legitimate rights and interests of persons without civil capacity. Divorce is a legal act in which the family marriage relationship changes significantly. It involves the various rights of the parties to the divorce and is an important civil legal activity. Only through litigation can we achieve the purpose of safeguarding the legitimate rights and interests of the parties. The Particularity of the Divorce Procedure of 2. Persons Without Civil Capacity The divorce case of a person without civil capacity must be preceded by special procedures, I .e. the person without civil capacity is declared and a guardian is appointed. Below I will combine a case to introduce this special procedure. Ms. Yu and Mr. Chen are a couple. Ms. Yu is now in a coma due to injuries in a traffic accident. Mr. Chen did not fulfill his obligations as husband and wife. He neither fulfilled his maintenance obligations nor filed for divorce. He also transferred the joint property of the husband and wife without authorization. According to the "the People's Republic of China Civil Code", the spouse is the first guardian of the person without civil capacity. If the guardianship relationship is not changed, the plaintiff's seat and the defendant's seat in the court will be the same person. However, with this kind of pre-procedure, this situation can be avoided. Ms. Yu's mother proposed to the court to declare Ms. Yu as a person without civil capacity and requested to appoint a guardian. This special procedure requires the establishment of a special case number, the cause of which is to apply for the declaration of a natural person without civil capacity. The specific operation is as follows: Ms. Yu's mother, Zhang, as the applicant, and Ms. Yu, as the respondent, applied to the court to declare Ms. Yu as a person without civil capacity, and applied to appoint Ms. Yu's mother, Zhang, as her guardian. After receiving the case, the court will make a record for each guardian and cross-examination of the woman's medical record. After entrusting an appraisal agency to appraise the woman's capacity, it will determine that she is a person without civil capacity based on the final appraisal opinion. After the court determined that Ms. Yu was a person without civil capacity according to the appraisal opinion, Ms. Yu's mother Zhang was appointed as the guardian. Once a guardian has been identified, divorce proceedings can be instituted and his proceedings are represented by the guardian. The situation of the divorce judgment of the person without civil capacity in 3.. 1. In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and economically. The law promotes the values of goodness, so when the spouse of a person without civil capacity sues for divorce, a judgment is made against divorce. Because Article 1043 of the "the People's Republic of China Civil Code" stipulates: "The family should establish a good family style, promote family virtues, and attach importance to the construction of family civilization. Husband and wife should be faithful to each other, respect each other and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations. "In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and financially. The law advocates the values of goodness, so it will make a judgment against divorce in order to safeguard the social values that justice should guard. 2. If the court believes that the relationship between husband and wife exists in name only due to the person without civil capacity, and the relationship between husband and wife is completely broken due to the inability of both parties to communicate, it will support the divorce petition. And in judicial practice, it cannot be ruled out that people without civil capacity have more property. Their spouses neither file for divorce nor take care of the other party, but use the identity of the property manager to squander the other party's property. If they are not allowed to divorce, they may appear Under the guise of legal marriage, the rights and interests of people without civil capacity are wantonly infringed. And because people without civil capacity cannot communicate normally, the relationship between husband and wife is broken, and the dissolution of marriage is more conducive to protecting the legitimate rights and interests of people without civil capacity, and the court will make a divorce judgment. There are many cases of divorce of persons without civil capacity. The court will make different decisions based on different reasons. Some allow divorce, and some do not allow divorce. In dealing with the divorce of persons without civil capacity, the first consideration should be given to the basic survival of persons without civil capacity. If a person with civil capacity does not have other close relatives to take care of and care after divorce, his right to survival cannot be effectively protected. In this case, divorce should not be allowed. If their rights and interests are effectively protected, divorce may be granted. The people's court can neither allow the parties to divorce to restrict or deprive the parties of their right to freedom of marriage in disguise, as stipulated in the legislation of feudal society, nor can they decide divorce without considering the actual circumstances of the case. The People's Court shall, in accordance with the spirit and principles of marriage legislation, properly handle the case in accordance with relevant legal provisions and consideration of the circumstances of the case. Remedies 4. Divorce Cases of Persons Without Civil Capacity According to the different types of first instance judgment, the rights and remedies of the parties in divorce cases are distinguished as follows: 1, the court ruled that divorce is not allowed. After the divorce case has been tried by the court of first instance, if the divorce is not allowed to be divorced, the plaintiff and the defendant may appeal before the judgment takes effect. (Note: Since divorce cases involve not only status relations, but also child support and property and debt issues, the court of second instance, if it considers that a divorce should be decided, should mediate on the child support and property and debt issues, and if mediation fails, the divorce cannot be changed directly, but should be remanded. In other words, in such cases, the parties' claims to appeal are restricted.) 2. The court decides to grant the divorce. In cases where the court decides to grant a divorce, both parties may appeal. The court of second instance may, after hearing the case, change the decision and forbid divorce. After hearing the case, the court of second instance still decided to grant the divorce and made a judgment on the maintenance of children and property. 3. Cases in which the court's first-instance judgment forbidding divorce or granting divorce has legal effect. If the court makes a judgment forbidding divorce or granting divorce, and the plaintiff and the defendant fail to appeal within 15 days from the date of service of the judgment, the judgment of first instance shall have legal effect. The plaintiff and the defendant shall not appeal against the legally effective judgment. If you are not satisfied with the judgment of the first instance involving property relations, you may apply for a retrial within the statutory time limit. Additional provisions: 1. Article 28 of the the People's Republic of China Civil Code: For adults with no or limited capacity for civil conduct, the following persons with guardianship capacity shall serve as guardians in order: (1) spouse; (II) parents, children; (III) other close relatives; (IV) other individuals or organizations willing to act as guardians, However, the consent of the neighborhood committee, village committee or civil affairs department of the ward's domicile is required. 2. Article 12 of the regulations on Marriage Registration stipulates that if a person with no capacity for civil conduct or a person with limited capacity for civil conduct applies for divorce registration, the marriage registration authority shall not accept it.

2022-01-10

Viewpoint... Analysis of the litigation status and sharing principle of appraisal fees.

Abstract: In civil and commercial disputes, especially in construction project disputes, medical disputes, traffic accident disputes and other cases, the collection and burden of appraisal fees are often the problems that the parties, agents and judges do not attach great importance. As for the sharing of appraisal costs, some courts do not deal with them in the judgment documents, some courts deal with them in the judgment items, and some courts deal with them in the part of the case acceptance fees. Even different judges of the same court will have different writing methods. The reason for the above situation is that judges have different understanding of the litigation status and sharing principle of appraisal fees. In addition to the above, there are also problems such as whether the appraisal fees should be handled in this case and whether they should be handled in the judgment or in the part of the litigation fees, whether the parties can bring a lawsuit or appeal separately on the appraisal fees, and who should bear the appraisal fees paid by the defendant if the plaintiff withdraws the lawsuit, etc. Keywords: appraisal fee, appraisal fee sharing, appraisal fee status, appraisal fee commitment. The relevant laws and regulations of 1. on appraisal fees have evolved. With regard to the cost of appraisal, the Civil Procedure Law does not provide for detailed provisions. The current "Civil Procedure Law" only divides litigation costs into "case acceptance fees" and "other litigation costs" in the first paragraph of Article 118 ". In 1984, the Supreme People's Court issued the "Measures for Civil Litigation Fees (for Trial Implementation)". The second paragraph of Article 2 of the judicial interpretation stipulates: "The parties to a property case shall pay appraisal fees, inspection fees, announcement fees, and witness missed work subsidies. And travel fees, as well as other litigation costs that the people's court believes should be borne by the parties." It can be seen from this provision that the 1984 Civil Litigation Fees (Trial) classifies appraisal fees into the category of "other litigation costs" and does not further subdivide appraisal fees. In 1989, the Supreme People's Court promulgated the "People's Court Litigation Fees Measures", which abolished the 1984 "Civil Litigation Fees Measures (Trial)". Article 2 of the 1989 Measures for Litigation Fees of the People's Courts stipulates: "In addition to paying the case acceptance fee to the people's court, the parties to property cases and administrative cases shall also pay the following fees: (1) fees for inspection, appraisal, announcement and translation (except for the local common ethnic languages and characters); (II) the transportation expenses, accommodation expenses, living expenses and missed work subsidies for witnesses, appraisers and translators to appear in court on the date decided by the people's court;" it can be seen that compared with the 1984 "civil litigation fee method (Trial)", The traditional "appraisal fee" is subdivided into two parts: "appraisal fee" in the sub-concept sense and "transportation fee, accommodation fee, living expenses and missed work subsidy fee for appraisers to appear in court. Both belong to the category of "other litigation costs" in litigation costs and should be paid to the court. In 2006, the State Council promulgated the "Measures for the Payment of Litigation Costs". Article 6 of the administrative regulations stipulates: "The litigation costs that the parties shall pay to the people's court include: (1) Case acceptance fees; (II) application fees; (III) witnesses, appraisers, and interpreters Transportation expenses, accommodation expenses, living expenses and lost work subsidies incurred by personnel and calculators appearing in court on the date designated by the people's court." It can be seen that although the 2006 "Measures for the Payment of Litigation Costs" maintained the subdivision of appraisal fees in the 1989 "Measures for Litigation Fees of the People's Courts", it only included the "transportation expenses, accommodation expenses, living expenses and lost work subsidies for appraisers appearing in court" in the "litigation costs that the parties should pay to the people's courts", while the "appraisal fees" in the sub-concept did not appear in the clear list. The 2006 "Measures for the Payment of Litigation Costs" further stipulates in Articles 11 and 12: "The transportation expenses, accommodation expenses, living expenses and lost work subsidies incurred by witnesses, appraisers, translators and calculators appearing in court on the date designated by the people's court shall be collected by the people's court in accordance with the standards prescribed by the state." "In the course of litigation, the people's court shall decide on the principle of who claims and who bears the expenses that should be borne by the parties concerned in accordance with the law due to appraisal, announcement, inspection, translation, evaluation, auction, sale, storage, storage, transportation and ship supervision, and the people's court shall not collect and pay the expenses directly to the relevant institutions or units." It can be seen that the parties involved in the part of "transportation, accommodation, living expenses and missed work subsidies for the appraiser to appear in court" need to pay to the court, while the parties involved in the sub-concept of "appraisal fees" need to be paid directly to the relevant institutions or units, and the people's court shall not collect and pay on their behalf. In 2009, the National Development and Reform Commission and the Ministry of Justice issued the measures for the Administration of Judicial expertise fees, in which Article 15 states that "in litigation activities, if a party applies for and is approved by the people's court to directly entrust a judicial expertise institution to carry out the appraisal, the required appraisal fees shall be paid directly by the party concerned to the judicial expertise institution, and the people's court shall not collect and pay on its behalf." This article is basically consistent with the handling mode of the Measures for the Payment of Litigation Costs issued by the State Council in 2006. Some Controversial Issues on Appraisal Fee in 2. Whether the (I) appraisal fee falls within the scope of litigation costs The first view: the judicial appraisal fees paid by the parties in the course of litigation are litigation costs. Chapter 2 of the new Measures for the Payment of Litigation Costs stipulates the scope of payment of litigation costs, which are roughly divided into two categories: one is the litigation costs paid directly by the parties to the people's court or collected by the people's court on their behalf, and the other is the people The court decides that the parties directly pay the relevant institutions or units, such as appraisal fees, assessment fees, etc. Clearly, identification fees are classified as litigation costs. The second point of view: Article 12 of the Measures for the Payment of Litigation Costs stipulates: "In the course of litigation, the people's court shall, according to the principle of who claims and who bears the expenses that should be borne by the parties due to appraisal ......", that is to say, appraisal is the obligation of the applicant to prove evidence and should be borne by the applicant as the cost of proof. I think the first point of view is more convincing: First, the new "Measures for the Payment of Litigation Costs" stipulates that appraisal fees and other fees are included in the scope of payment of litigation costs in Chapter II, indicating that appraisal fees are still litigation costs. Article 6 only stipulates "the litigation costs that the parties should pay to the people's court", and does not include the meaning of "those who do not pay to the people's court do not belong to the litigation costs. Second, the principle of "who claims, who bears" as mentioned in Article 12 of the new "Measures for the Payment of Litigation Costs" should refer to the principle of determining the subject of payment at the stage of proof, rather than the principle of who will bear the final determination of the appraisal fee when the result of the judgment appears. The principles set out in Article 12 do not affect the status of appraisal fees as litigation costs. Third, the Civil Procedure Law stipulates that the parties may apply to the people's court for appraisal on the special issue of ascertaining the facts. If the parties apply for appraisal, the parties shall determine the qualified appraiser through consultation; if the consultation fails, the people's court shall appoint the appraiser. Note the wording here, the parties are the applicants and the court is the designee. The obligation of the appraisal institution is to help the judge explain and judge specific issues through specialized knowledge. Therefore, the status of the appraisal institution is neutral and has no employment or contractual relationship with any party involved in the lawsuit. The appraisal is entrusted by the court as the main body. The appraisal fee is paid in advance by the parties instead of the court. This part of the fee should be taken as part of the litigation fee, and its litigation status is the litigation fee of procedural expenditure. Whether the (II) appraisal fee should be dealt with in this case and whether it should be dealt with in the judgment or in the litigation fee part. The first view: the appraisal fee is actually the reasonable cost of the applicant's expenditure for the realization of the right, which is an actual loss and should be dealt with in the judgment. The second point of view: appraisal fees belong to the category of litigation costs and should appear in the burden of litigation costs as procedural expenses in litigation. The third view: Although the appraisal fee is a reasonable expense for the applicant to realize the right, the court should not take the initiative to deal with it when the parties do not file a separate claim for the appraisal fee. I think the second point of view is more reasonable: first of all, when the appraisal conclusion obtained by the party applying for appraisal after paying the appraisal fee proves that the other party's claim is not valid, then the appraisal fee paid by the party applying for appraisal due to the other party's false claim may not be required to be borne by the other party in this case or another case, which obviously does not conform to the principle of litigation economy and efficiency. Secondly, as mentioned above, the new Measures for the Payment of Litigation Costs regard the appraisal fee as the litigation fee, which, together with the case acceptance fee, belongs to the expenses paid or advanced by the parties in advance, and belongs to the procedural expenses, so there is nothing wrong with dealing with the burden of litigation costs. (III) whether the parties can bring a lawsuit over the appraisal fee During the trial of the case or after the issuance of the judgment document, the parties often encounter situations where they have objections to the appraisal fee charged by the appraisal agency, and believe that the appraisal fee is too high or the appraisal fee should not be charged for the appraisal item has not been completed. In this regard, the parties can file a lawsuit with the appraisal agency to claim to reduce or return the appraisal fee. In practice, there are the following differences of views: The first point of view: the parties are the decider and applicant of the appraisal, and the court is given only the right to approve the appraisal application. If the parties believe that the appraisal results have not achieved the expected purpose, and then have objections to the appraisal fee, the parties may request the appraisal agency to return the appraisal fee. Its legal basis can be applied by analogy to Article 78 of the Civil Procedure Law, which states that "if a party disagrees with the appraisal opinion or if the people's court deems it necessary for the appraiser to appear in court, the appraiser shall testify in court. If, upon notification by the people's court, the appraiser refuses to testify in court, the appraisal opinion shall not be used as the basis for ascertaining the facts; the party who paid the appraisal fee may demand the return of the appraisal fee." The request for return here may be made by filing a separate lawsuit with the appraisal institution as the opposite party. The appraisal opinion is essentially a kind of witness testimony, so the appraisal fee in the sense of the sub-concept is actually the consideration paid by the party in order to obtain evidence, which is not directly related to the court and the other party. Within the framework of the current law, just as the expenses such as travel expenses paid by the parties in order to collect certain evidence cannot be claimed to the litigation counterparty, the appraisal fees paid by the parties to the appraisal institution in order to obtain the appraisal opinion do not have the same room for claiming to the litigation counterparty. How much and when the appraisal fee should be paid is decided through consultation between the party applying for appraisal and the appraisal institution and delivered directly to the appraisal institution or unit. The court has neither the right to decide nor the collection. The parties' disagreement with the appraisal fee only exists between the parties and the appraisal agency to deal with the problem of separate cases. The second point of view: in the civil law system, the task of appraisal institutions is to help judges identify and judge specific issues through specialized knowledge. Similarly, in China's legal system, the status of appraisal institutions is neutral, and there is no employment and contractual relationship with any party involved in the lawsuit, which can ensure the notarization and neutrality of justice. The Civil Procedure Law stipulates that the parties may apply to the people's court for appraisal on the specialized issue of ascertaining the facts. If the parties apply for appraisal, the parties shall determine the qualified appraiser through consultation; if the consultation fails, the people's court shall appoint the appraiser. Accordingly, the parties are the applicants and the court is the designee. Therefore, when the parties file a lawsuit against the appraisal fee, they should reject the lawsuit on the grounds that they have not established a contractual relationship with the appraisal institution and the plaintiff's subject is not suitable. I think the second view is more reasonable: first, although the appraisal fee belongs to the actual loss of the bearing party, it does not belong to the same category as the substantive rights in the litigant's claim, so it cannot claim relief or refund by way of litigation. Second, the subject of the appraisal commission is the people's court, and the contractual relationship is established between the court and the appraisal institution, which is a double-service contract, and the obligation of the appraisal institution is to help the judge explain and judge specific issues through expertise, while the obligation of the opposite people's court is to pay. The appraisal fee should be paid in advance by the court, because the appraisal institution serves the court. If the money is nominally paid by one of the parties, the appraisal institution will lose its neutral status. Only in practical operation, the court does not have this expense, and it is impossible to prepay a large amount of funds to entrust the appraisal, so in fact, the appraisal fee is advanced by the party applying for the appraisal, and finally shared by both parties under the proportion of responsibility determined by the judgment. This is a helpless move, but it is also the most in line with the common interests of all participants in the litigation. Based on this, if the parties have objections to the appraisal fee, they can only file a lawsuit with the people's court, and cannot file a lawsuit with the appraisal agency based on the entrustment contract relationship. (IV) whether the parties can file a separate appeal against the appraisal fee The parties cannot file a separate appeal against the burden of appraisal fees in the first-instance judgment. The reasons are as follows: Article 43 of the new "Measures for the Payment of Litigation Fees" stipulates: "The parties shall not file a separate appeal against the people's court's decision on litigation costs. If the parties individually object to the decision of the people's court on litigation costs, they may apply to the president of the people's court that made the decision for review. The review decision shall be made within 15 days from the date of receipt of the party's application. If the parties object to the calculation of the litigation costs decided by the people's court, they may apply to the people's court that made the decision for review. If there is a definite error in the calculation, the people's court that made the decision shall correct it." That is, if the parties have objections to the people's court's decision on litigation costs, they may apply to the president of the court or the court for review according to the circumstances, but they may not appeal the decision on litigation costs alone. Therefore, because the appraisal fee is the litigation fee stipulated in the Measures for the Payment of Litigation Fees, in accordance with the provisions of Article 43 of the Measures, the parties cannot appeal the appraisal fee alone, but they can apply to the president of the court for review. If there is any objection to the calculation of the litigation fee, you can apply to the court for review. (V) the plaintiff withdraws the lawsuit, who shall bear the appraisal fee paid by the defendant If the plaintiff claims rights to the defendant on the basis of the IOU evidence submitted by him, the defendant has doubts about the authenticity of the IOU and applies for appraisal. The appraisal conclusion is that the signature of the defendant in the IOU is false. After that, the plaintiff applies to the court for withdrawal of the lawsuit. There are different views on who will bear the appraisal fee advanced by the defendant after the plaintiff withdraws the lawsuit: The first view: should be borne by the defendant. Article 34 of the "Measures for the Payment of Litigation Costs" stipulates: "If the plaintiff or appellant in a civil case applies for withdrawal of the lawsuit, and the people's court decides to approve it, the case acceptance fee shall be borne by the plaintiff or appellant." It is clearly stipulated that the plaintiff is responsible for the "case acceptance fee", and the appraisal fee is clearly not a "case acceptance fee". At the same time, Article 12 of the Measures stipulates: "In the course of litigation, due to appraisal ...... the expenses that should be borne by the parties in accordance with the law, the people's court shall, in accordance with the principle of who claims, who bears ......", that is to say, the appraisal is the obligation of the defendant to prove evidence and should be borne by the defendant himself. The second point of view: should be borne by the plaintiff. Although the appraisal fee does not belong to the "case acceptance fee", it still belongs to the "litigation cost". Article 29 of the "Measures for the Payment of Litigation Costs" stipulates: "The litigation costs shall be borne by the losing party, except for those voluntarily borne by the winning party." In this case, the plaintiff withdrew the prosecution after the defendant applied for appraisal, and although it was not judged against him, the consequences should still be borne by the plaintiff. I think the second view is more reasonable: First, Article 145 of the Civil Procedure Law stipulates

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2021-12-31

On the identification of subjective knowledge of drug crime

[内容摘要]明知是犯罪故意的认识因素，一切故意犯罪成立必须具备的主观要件。明知的认定，不能单纯依靠犯罪嫌疑人、被告人的供述或者辩解，必须通过其他证据予以证明。明知以证明明知为常态，以推定明知为例外。推定明知的基础事实必须得到严格证明，应限缩解释基础事实和推定事实之间的常态联系，准确适用刑事推定的反驳事由。     [关键词] 毒品犯罪 应当知道 证明明知 推定明知 我国刑法坚持主客观相统一，明知作为行为人的主观心理事实，是犯罪成立的前提条件。我国刑法学界对于毒品犯罪明知的理解有较大分歧，明知认定也是长期困扰刑事司法实践的难题之一，控辩双方往往针对这一问题展开针锋相对的论争。 一、问题的提出 案例一：箱包藏毒案 甲为下岗工人，后结识某“老板”，受雇去云南运送玉石，路上费用全包，另每日付工资100元。甲先后与“老板”到云南运送‘玉石’两次，得款2000元。某日，甲在“老板”带领下，到达云南，与乙接头，乙在宾馆将一个装着两盒玉镯的黑色行李包交给甲，并当场把玉石从包中拿出来让甲作了验收。甲在机场安检时被发现，其托运行李包夹层内被查获大量海洛因，一审法院认定甲构成运输毒品罪。甲不服，提出上诉。二审期间，“老板”被抓获，据其供述，甲对藏在行李包夹层中的毒品确不知情，二审法院以事实不清、证据不足为由，发回重审。重审期间，“老板”的供述出现反复，他说，甲应该知道运输的是毒品，只不过大家没有讲明这件事。原一审法院据“老板”供述，结合甲接到行李箱后，由“老板”探路，绕路前行的行为再次判处甲成立运输毒品罪，后二审法院作出无罪判决。本案需厘清以下问题：一是毒品藏在行李包夹层中能否适用推定；二是如果能够适用推定，本案是否符合推定的基础事实；三是假设符合推定的基础事实，被告人又是否作出了“合理解释”或者“有证据证明确属被蒙蔽”？ 案例二：网络包裹案 被告人乙与他人合谋，由他人以联系业务为名与我国某公司员工丙取得联系，以邮寄样品为名将毒品走私入境。后包裹从某国被邮寄给乙。同年2月7日，某市海关驻邮局办事处从该包裹内的菜谱中查获毒品可卡因若干。后被告人乙与丙联系，让丙将该菜谱寄往广东省广州市某地址。同月22日，被告人在该地签收邮件后被当场抓获。被告人与辩护人都坚称主观上不明知包裹内藏有毒品，现有证据不能证明被告人就是包裹的所有人或接收人。该案依照现有证据能否认定被告人成立走私毒品罪？ 犯罪构成与诉讼证明是刑事实体法与刑事程序法的交叉领域，而主观要件明知的证明与推定是其中的重要内容。毒品类犯罪的成立要求行为人明知走私、贩卖、制造、运输、持有的对象是毒品，犯罪嫌疑人、被告人主观心态最直接的证明方式就是犯罪嫌疑人、被告人的供述，但在行为人否认“明知是毒品”的情况下，检控机关无疑面临巨大的诉讼风险，2009年至2011年间，云南省有30多件箱包藏毒案件未作犯罪处。【1】这也成为辩护律师辩护的有利争点。 二、毒品犯罪明知的基本要义     （一）何谓“明知”？ 明知是一种心理事实，从刑法角度，行为人的主观明知是指行为人对自身行为性质、行为客体、行为结果以及某些特定事实的自我认知。在我国犯罪论体系中，明知是犯罪故意的认识因素，是一切故意犯罪成立必须具备的主观要件。刑事立法中的明知可分为刑法总则中的明知与刑法分则中的明知。我国刑法第14条为刑法总则“明知”的规定，刑法总则的“明知”包含明知危害社会的结果必然发生与可能发生，并不仅体现在直接故意，间接故意之中也可能存在明知。我国刑法分则中亦规定大量的“明知”，截止目前共涉及36个条文、41个罪名。明知有别于明知认定，正如学者所言，明知是行为人对犯罪构成事实的一种认知状态，而非他人对行为人认识状态的判断。【2】我国刑法第14条中的“明知”即为行为人对自身犯罪构成事实的明知，而明知认定则是司法人员从刑事司法角度对行为人主观认识状态的认知，具体可通过证明明知与推定明知加以实现。明知与明知认定分属不同领域，两者相互独立，明知是明知认定的基础。 （二）毒品犯罪明知的内容 明知的内容主要包含两个层面：一是行为人对客观构成要件事实的明知，二是行为人对行为实质违法性的明知。囿于构成要件事实由诸多构成要件要素组合而成，明知还可分为对描述的构成要件要素的明知和对规范的构成要件要素的明知。描述的构成要件要素是对构成要件事实的简单描述，明确、具体，无需法官加以价值评价，一般人在感知客观构成要件事实的同时就能对行为的社会意义与实质违法性加以判断。毒品犯罪要求行为人认识到行为对象是毒品属于对描述的构成要件要素的明知。刑法理论界的通说观点认为，毒品犯罪的成立，只要求行为人认识到是毒品即可，并不要求行为人具体认识毒品的名称、化学成分以及效用等具体性质。【3】也有学者认为，行为人对毒品的认知应当涵盖其本质属性，具体而言就是明知毒品的种类。【4】 本文认为，行为人只要认识到行为对象是毒品，不是其他违禁品就可成为明知。首先，随着新型毒品的不断涌现，行为人对毒品物质属性的认知难度逐渐增加，以致很难判断自身接触的到底是何种类型的毒品。其次，依照刑法第357条规定，毒品是指鸦片、海洛因、甲基苯丙胺(冰毒)、吗啡、大麻、可卡因以及国家规定管制的其他能够使人形成瘾癖的麻醉药品和精神药品。毒品的范围十分广泛，如若要求行为人认识到毒品的具体类型，会使毒品犯罪的犯罪圈过于狭窄。再次，依照刑法规定，毒品的具体类型并不影响毒品犯罪的成立。因而，行为人只需认识到是毒品，而无需认识到具体是哪一种类型的毒品，就可认定对毒品的明知。 （三）毒品犯罪明知的程度认定 明知的程度是指行为人对客观构成要件事实的认知程度。明知程度的认定是司法人员是通过证明或者推定得出行为人对构成要件事实认知程度的结论。我国刑法理论针对明知的程度认定主要有三种观点：其一，确定性说，该观点认为明知只能表现为是行为人的确定性认识，而不能是可能性认识【4】。其二，可能性说，该观点主张不管行为人认识到肯定是毒品，还是认识到可能是毒品，都属于认识到是毒品，不影响犯罪的成立【5】。其三，确定性+可能性说，该观点将明知根据认识程度，划分为“明确知道”与“可能知道”【6】。 行为人的认知在“完全确信”与“完全不知”之间，包含着若干中间阶段。有学者认为，按照行为人认识程度的强弱，对于明知可以分为确知（肯定、确实的知道）、实知（事实上知道）、或知（可能知道）、应知（应当知道）4级区分。【7】上述四种明知类型中“确知”、“实知”和“或知”是司法人员通过证据加以证明的明知，如若通过直接证据或间接证据证明行为人确实知道、实际知道或者可能知道行为对象是毒品，证据达到确实、充分，排除合理怀疑的程度，即可认定为明知。 毒品犯罪司法解释和纪要中的“应当知道”，除了证明明知外，还存在推定明知。在适用推定的场合，毒品犯罪行为人对犯罪构成要件事实的明知要至少达到“应当知道”的程度。在司法认定中，行为人可能知道是毒品，但是否知道难以确定时，控诉方的证明责任无法卸除。前述案例1中，甲至少要根据运输费用、运输路线、委托人信息、交货情况以及自身经验等判断出运输的对象应当是毒品。  三、司法解释中“应当知道”的性质 我国毒品犯罪司法解释和地方司法机关制定的规范性文件大量使用了“应当知道”，如最高人民法院、最高人民检察院、公安部2007年《关于办理毒品犯罪案件适用法律若干问题的意见》（以下简称《意见》）规定了“应当知道”的八种情形。2008年最高人民法院《全国部分法院审理毒品犯罪案件工作座谈会纪要》将“明知”是毒品的情形扩展至十种。最高人民法院、最高人民检察院、公安部《关于办理走私、非法买卖麻黄碱类复方制剂等刑事案件适用法律若干问题的意见》对犯罪嫌疑人、被告人主观明知的认定作出规定，进一步将“此前是否实施过违法行为”作为重点考虑因素。但是主观明知的认定在司法适用中仍存在诸多疑难。 针对前述司法解释和纪要中“应当知道”的性质，主要有以下几种观点：一是认为司法解释和纪要中规定的是主观明知推定规则。【8】二是认为除第一种和第八种情形外，都不属于推定，而属于结合客观事实就可以判断行为人实际上知道自己走私、贩卖、运输、持有的是毒品。【9】此处司法解释中的“应当知道”与过失犯罪中的“应知而不知”无关，“应当知道”是基于解决实践中主观明知的证明难题而设置的一种司法认定的明知，实质上包含了证明明知与推定明知。司法解释中的第八项“其他有证据足以证明被告人应当知道的”，属于运用证据证明的明知；司法解释和纪要中“应当知道”的其他情形属于刑事推定，但相关情形的表述，大多数可以作为证明主观明知的证据。原因在于：刑事推定是在对待证事实缺乏证据加以证明时，基于已经得到证明的基础事实，根据基础事实与待证事实间的常态联系，而推定待证事实存在。所谓的推定明知，是指只要能够证明客观基础事实存在，即可推定行为人成立明知，而无须具体的推论过程。司法解释和纪要中列举的情形属于案件中的客观基础事实，在具备这些客观基础事实情况下，行为人明知是毒品的概率较大，故而推定其主观是明知的。刑事案件中，行为人的主观心态较之客观事实，更难以证明。因此，行为人主观构成要件要素的推定（主要为明知推定）在刑事推定中占有重要比例。 刑事推定与间接证明的主要区别在于证明责任的承担，主张成立推定检控方只要证明基础事实存在，证明责任即倒置于被告方；主张间接证明则在符合基础事实条件下，检控方仍应对行为人的主观明知用证据加以证明。明知推定是刑事政策在犯罪主观领域内的体现，在明知的认定中具有作为空间。刑法要在法益保护与人权保障之间加以平衡，刑事明知推定的范围必须严格限定，应仅限于检控机关证明极为困难，而刑事政策又重点打击的犯罪。因而，司法实践应严格界分证明明知与推定明知，坚持以证明明知为常态，以推定明知为例外，并对明知推定谨慎为之。 四、证明明知在毒品犯罪中的适用 传统刑法理论坚持责任主义，责任的成立以行为人的主观罪过为基础，行为人对客观构成要件要素要有明知。证明明知是证明主体通过被告人供述、证人证言、物证、书证、鉴定意见等证据对行为人是否明知这一待证事实加以证明。刑事诉讼中由控方承担证明被告人有罪的责任，是否存在明知，也需要由控方证明，当无法确定行为人是否明知时，根据存疑有利于被告的原则，法官应作出无罪判决。刑事司法大多数的明知认定属于证明明知。司法解释中的“确知”与“实知”均应当属于证明明知，需要控方举证加以证明，无论是用直接证据还是间接证据证明明知，均应达到排除合理怀疑的证明标准。毒品犯罪案件中，亦应以证明明知为主，附之以推定明知，在适用推定情形下对于基础事实本身必须要运用证据证明。 上述案例2网络包裹案虽然在邮寄的包裹中发现毒品，但其并不属于司法解释和纪要规定的“应当知道”情形，本案中没有被告人供述、证人证言等直接证据，故而需要通过间接证据完成对明知的证明。   间接证据   嫌疑人辩解 1.被告人2月22日在广州市某地址收取涉案邮包。 2.手机通话记录、短信等证明自称Micheal的人与丙联系，Micheal要丙将所接收从巴西邮寄包裹中像书一样的物品邮寄到广州市某地址。 3.笔记本电脑内查询快递单号的上网记录显示，被告人多次查询过涉案快递单号，最早查询时间早于被告人供述的朋友让其代取包裹的时间。 4.被告人处查获的笔记本记载了张某及其公司信息、电话。 5.被告人在农行ATM机上汇款200元给张某，并将打款的银行凭条发给上线，上线将凭条以邮件方式发给张某。 其朋友AKIM让其代收包裹，收取包裹只有一次； 其朋友AKIM、SUNDAY让其汇款200元； 对笔记本电脑内查询快递的记录不知情； 手机系案发前一天晚上AKIM给其的。   本案中上述关于被告人客观行为的间接证据能够形成完整的证据链条，实现对被告人明知的证明，而被告人的辩解又无法形成合理解释，故而，能够认定被告人成

2021-12-31

On the Punitive Damages System of Intellectual Property Infringement

Abstract: The system of punitive damages is an important system in China's intellectual property law system, which plays a positive role in making up for the loss of the victim, punishing and curbing the infringement. The "Civil Code" raises "punitive damages" to the height of the law. Under the objective conditions that it is difficult to prove the losses involved in intellectual property infringement litigation, it can be said to give the right holders a reassurance to protect their rights. Keywords: punitive damages intellectual property infringement damages On the Definition of Punitive Damages Punitive damages, usually also known as "exemplary compensation" or "retaliatory compensation", are generally used in intellectual property infringement litigation. Specifically, the amount of compensation made by the defendant according to the actual situation of the case during the trial of the case exceeds the plaintiff's actual loss, and the amount of compensation awarded to the defendant can be regarded as punitive damages. 2. Analysis of the Current Situation of Intellectual Property Infringement Compensation in China Before the implementation of the Civil Code, whether in the theoretical or practical circles, as far as intellectual property infringement compensation is concerned, the "fill-in system" compensation is often adopted, that is to say, when the right holder receives damage, the compensation obtained through litigation can at most make up for the losses he has suffered, and the right holder cannot and has no right to profit from infringement litigation. In intellectual property infringement litigation, the determination of the amount of loss has always been a difficult problem in front of the right holder. In the trial of such cases, the court is often unable to prove the actual amount of loss suffered by the right holder, and can only decide below the statutory compensation limit. Compared with other infringements, the amount of compensation for intellectual property infringement is obviously uncertain, and with the diversification of infringement means, the damage of infringement is getting higher and higher. The amount of compensation under the statutory amount of compensation has become increasingly unable to compensate for the loss of the right holder, especially the loss of market share and the adverse loss suffered by the brand, which cannot be calculated in a specific amount. The illegal cost is far lower than the illegal income, and the infringement of intellectual property rights will become more and more serious, which has gradually become an important factor that can not be ignored in China's economic development, and even an important excuse for some countries in the world to attack our country. The formal implementation of the Civil Code has brought a turning point to solve this difficult problem. First, it is clearly stated in the General Provisions that the way to bear civil liability is "punitive damages" [1]. Second, Article 1,185 [2] of the sub-rule makes it clear that punitive damages are applicable to intellectual property infringement. This is China's clear that the provision that "punitive damages" can be requested when assuming tort liability in the field of intellectual property has been raised to the legal level, it indicates that punitive damages have achieved "full coverage" in intellectual property cases ". It can be said that the establishment of intellectual property infringement compensation in China has entered a new era. 3. Analysis of the Necessity of Establishing Punitive Damages for Intellectual Property Infringement in China 1. Based on the need to combat infringement and purify the market environment With the rapid development of technology, the infringing party through the continuous compression of costs, its through the production and sale of counterfeit goods to obtain high profits is much higher than the amount of compensation awarded by the court, it can be said that the infringing party due to infringement will not only be damaged, but can be based on this profit, so as to repeatedly and repeatedly infringe. Through the application of punitive damages, can play a certain deterrent effect on the infringer, so that the infringer to pay a high cost of infringement, to avoid re-offending, so as to achieve the effect of purifying the market environment. Based on the need to encourage rights holders to safeguard their rights and build a good social order In practice, because the right holders often cannot get compensation or infringement compensation in time and in full, the cost of rights protection is getting higher and higher. Many right holders often feel that the rights protection behavior is not worth the loss, and even lose confidence in the entire judicial system of our country. The forced choice to tolerate or even let it happen has seriously damaged the social order of our country. By applying punitive damages and increasing the compensation obtained by the right holders for infringement, it can not only improve the enthusiasm of the right holders to protect their rights, but also promote the improvement of legal prestige and the formation of a good social order. The Specific Application of Punitive Damages System of 4. Intellectual Property Infringement in China's Judicial Practice (I) the relevant provisions of punitive damages in the current legal system of our country. In addition to the "punitive damages" system provided for in the Civil Code, there are similar provisions on "punitive damages" in the separate law on intellectual property rights, as detailed in Article 63 of the Trademark Law, Article 17 of the Anti-Unfair Competition Law, Article 71 of the Patent Law and Article 54 of the Copyright Law. Applicable Conditions of Punitive Damages for (II) Intellectual Property Infringement Different from the traditional compensatory damages, the main feature of punitive damages is its "punitive", that is, it is far from enough to compensate the obligee for the losses suffered. The key is to punish the infringer, and to a certain extent deter potential infringers and strangle the infringement in the cradle as soon as possible. Therefore, in the specific application of the punitive damages system of intellectual property infringement, the conditions of its application should be strictly limited, and the application should not be expanded at will, contrary to the original intention of establishing the system. The Interpretation on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights (hereinafter referred to as the "Interpretation") issued by the Supreme People's Court on March 3, 2021 provides a more authoritative operational guideline on how to apply punitive damages in judicial trials. Combined with the relevant provisions of the judicial interpretation, the author believes that the applicable conditions of punitive damages should cover the following points: 1. There is an objective fact of damage. The author believes that the fact of damage has a dual meaning, one is that there is a tort, and the other is that the tort damages the legitimate rights and interests of the obligee, which includes not only personal rights and interests, but also property rights and other legitimate rights and interests. In other words, punitive damages may only be involved when there is an objective fact of damage, and punitive damages cannot be applied to the preparatory act of infringement that is about to be implemented. For the preparatory act of infringement, the right holder may seek additional relief, including applying to the court for an injunction or property preservation. 2. The infringer has the subjective malice of infringement, which is mainly manifested as intentional. From the perspective of the emergence and development of the punitive damages system and relevant foreign experience, punitive damages have the direct purpose of increasing the liability for compensation, and the ultimate goal is to punish the infringer and deter other potential infringers. Therefore, the application of the punitive damages system must be limited to intentional infringement, otherwise, it is very likely to impose excessive liability on the infringer, thus overcorrecting it. The infringer is subjectively intentional infringement, that is, the infringer knowingly does it intentionally knowing that his actions will infringe upon the intellectual property rights of others. 3. Punitive damages can only be applied if the circumstances are serious. The combination of the serious subjective malicious circumstances can make the punitive damages uniform play its due role, which will not improperly increase the infringer's liability for compensation, but also can achieve "punishment as its rule". According to relevant regulations, punitive damages are generally 1-5 times of damages for the infringer's infringement. If the infringement does not reach the serious standard, the amount of loss involved in the case is not high, even if the top five times of punitive damages are applied. The amount of damages can not serve as a deterrent to the infringer, nor can it play the ultimate goal of the system to curb infringement. As for the standard of "serious circumstances", Article 4 of the interpretation has been listed in detail and will not be repeated. (III) Criteria for Determining the Amount of Punitive Damages For the punitive damages system, the determination of the specific amount of compensation can be said to be the most important in the application of the system. If it is too high, it may excessively increase the liability of the infringer, and if it is too low, it may not be able to serve the purpose of punishment. Therefore, it is necessary to make corresponding legislative provisions on the criteria for determining the amount of punitive damages in order to avoid excessive discretion of judges and thus affect the fairness of judicial decisions. Although the current "Trademark Law", "Patent Law", "Copyright Law" and "Anti-Unfair Competition Law" all set punitive damages to more than one time and less than five times, there are still ambiguities in practice. There are disputes when the right holder requests punitive damages in intellectual property infringement litigation. Article 5 [3] of the "Interpretation" provides corresponding provisions on the calculation criteria for punitive damages, but the author believes that there are still the following points that need to be paid attention to in practical application: 1. On the basis of compensation According to the provisions of Article 5 of the interpretation, the compensation base shall comprehensively consider the actual loss of the obligee, the illegal income of the infringer and the license fee of the right. It should be noted that the reasonable cost of defending the rights of the right holder should be excluded when determining the compensation base. 2. About multiples According to the provisions of Article 6 of the "Interpretation", when determining the multiple of compensation, the severity of the infringement and the subjective malice of the infringer should be comprehensively considered, and the multiple limit under the law should be comprehensively determined. 3. Calculation method: "base * multiple reasonable rights costs" Application Effect of (IV) Punitive Damages System in Intellectual Property Litigation in China The "MOTR" trademark infringement dispute case, which was selected as one of the top 10 intellectual property cases in China's courts in 2019, is a typical case of punitive damages in intellectual property infringement litigation in China. The judgment reflects the firm confidence of the people's court to crack down on malicious infringement such as repeated infringement and continuous infringement, and to increase the punishment for infringement. After the judgment of the case, it has been highly praised by all walks of life. The Legal Daily even published an article on the front page with the headline "Reflecting China's'Great Power' in the context of the trade war", saying that the judgment of this case reflects China's crackdown. The determination of intellectual property crimes also reflects China's confidence in creating a good business environment. From this point of view, since the implementation of the "punitive damages" system in China, it has gained good legal and social effects, and has been well received by all walks of life at home and abroad. With the further clarification of relevant regulations, detailed rules and judicial interpretations, the increase in the number of applicable cases tried by the people's courts will inevitably curb the high incidence of intellectual property infringement cases and benefit the construction of the socialist rule of law in my country. Note:[1] Article 179 of the Civil Code "Where the law provides for punitive damages, follow its provisions." [2] Article 1,185 of the Civil Code "If the infringement of the intellectual property rights of others is intentional and the circumstances are serious, the infringed shall have the right to claim corresponding punitive damages." [3] Article 5 of the Interpretation of the Supreme People's Court on the Application of Punitive Damages in the Trial of Civil Cases Infringing Intellectual Property Rights states that "when determining the amount of punitive damages, the people's court shall, in accordance with relevant laws, take the actual amount of the plaintiff's loss, the amount of the defendant's illegal gains or the benefits obtained from infringement as the calculation base. The basis does not include the reasonable expenses paid by the plaintiff to stop the infringement. If it is difficult to calculate the actual amount of loss, the amount of illegal gains and the benefits obtained as a result of infringement as mentioned in the preceding paragraph, the people's court shall reasonably determine the amount of punitive damages by reference to the multiple of the license fee of the right in accordance with the law." References:[1] Baidu Encyclopedia: Punitive Damages Entry https://baike.baidu.com/item/惩罚性赔偿/10154579?fr=aladdin [2] Li Mingde, American Intellectual Property Law-2nd Edition Law Press 2014.4 ,P614-615 [3] Yang Lixin. Tort Law [M]. Beijing: People's Court Press, 2004:159. [4] Shanghai Pudong New Area People's Court (2018) Shanghai 0115 Minchu No. 53351 Civil Judgment [5] https://www.sohu.com/a/414310802_99895431 of "Shanghai's First Punitive Compensation Dispute for Intellectual Property Infringement" [6] Qian Yuwen, Luo Fulin, "On Punitive Damages in China's Intellectual Property Law", Journal of Law, 2009 [7] Shi Ling and Wang Yingjun, "Application of Punitive Damages System in the Field of Intellectual Property Law in China", in Tianjin Law, No. 1, 2012

2021-12-31

Explore the construction of the organizational structure of the comprehensive compliance management system

Different central regulatory authorities have issued guidelines or guidelines for corporate compliance in many areas. These guidelines and guidelines have established "Chinese standards" for the establishment of a comprehensive compliance system for enterprises ". In the process of building a comprehensive compliance management system, some enterprises take it for granted to overthrow the original old system, rebuild a large and comprehensive static management system, and solve the compliance problem overnight. This approach is easy to cause repeated construction and waste of management resources. If the newly established compliance system cannot be well integrated with the original operating system of the enterprise, it will inevitably cause the comprehensive compliance system to become a decoration and cannot provide effective protection for the healthy and stable development of the enterprise. Guaranteed. Others think that simply changing brands and making a few personnel adjustments is the completion of the compliance system architecture. This paper-based compliance organizational structure, which is forced by the pressure of the regulatory authorities and passively copied according to the guidelines or guidelines, cannot truly embed the compliance requirements into the daily operation process of the enterprise, resulting in the construction of the entire compliance system becoming a mere formality and unable to operate effectively within the enterprise. Therefore, the establishment of the organizational structure of the compliance system is not only an important part of the comprehensive compliance management system, but also the cornerstone of the effective operation of various compliance work. 1. the basic principles of building a comprehensive compliance management system The principle of comprehensive coverage. Compliance should cover all business areas, departments, subsidiaries and branches at all levels and all staff of the enterprise, and run through the whole process of decision-making, implementation and supervision. Adhering to the principle of comprehensive coverage, it is necessary to ensure that information is unblocked from top to bottom, not only to make orders, but also to ensure that the compliance work at the end can be transmitted to the highest level. 2. Strengthen the principle of responsibility. Strengthen compliance management as an important responsibility of the main person in charge of the enterprise, establish a full compliance responsibility system, clarify the compliance responsibilities of managers and all employees, and supervise the implementation. The compliance management department should have a high status and authority within the enterprise and is not dependent on the business management department or the financial department. 3. The principle of collaborative linkage. Compliance management should be integrated with legal risk prevention, supervision, audit, internal control and risk management to ensure the effective operation of the compliance management system. The principle of objective independence. The enterprise and employees shall be objectively evaluated and dealt with in strict accordance with the law, and the compliance management department shall perform its duties independently without interference from other departments and personnel. Business departments and finance departments and their personnel cannot concurrently serve as compliance managers and intervene in compliance management to ensure that the compliance system does not have any conflict of interest with the business activities and financial management activities of the enterprise. Enterprises should allocate compliance professionals and compliance funds in line with compliance management for compliance departments, and invest sufficient human and material resources. 2. a model for building a comprehensive compliance management system architecture The organizational structure of a comprehensive compliance system can generally be divided into three levels: governance, management and executive, which generally include the compliance management committee, the chief compliance officer, the compliance department, and the compliance department and compliance team. According to the "Guidelines for Compliance Management of Central Enterprises (Trial)", seven departments in an enterprise have compliance management responsibilities and should be included in the framework of the compliance management system. 1. The Board of Directors is responsible for approving the strategic plan, system and annual report of compliance management; improving the compliance management system; deciding on the appointment and removal of the person in charge of compliance management; deciding on the establishment and functions of the lead department for compliance management; deciding on major matters of compliance management; and deciding to deal with violators in accordance with their authority. 2. The Supervisory Board is responsible for overseeing the decisions and processes of the Board of Directors; overseeing the compliance performance of directors and senior management; proposing the removal of directors and senior management who pose significant compliance risks; and proposing to the Board of Directors the removal of the person in charge of the Company's compliance management. 3. According to the decision of the board of directors, the management level shall establish and improve the organizational structure of compliance management; Approve the compliance management system; Approve the compliance management plan; Ensure that the compliance system is effectively implemented; Clarify the compliance management process; Ensure that compliance requirements are integrated into the business field; Stop and correct non-compliant business behaviors in a timely manner; According to the authority, the violators shall be held accountable. 4. Central enterprises set up compliance committees to undertake the organization, leadership and overall coordination of compliance management, hold regular meetings, study and decide on major matters of compliance management, and guide, supervise and evaluate compliance management. 5. The relevant person in charge or general counsel of the central enterprise shall serve as the person in charge of compliance management, and his responsibilities include: organizing the formulation of compliance management strategic plan; Participate in major decisions of the enterprise and put forward compliance opinions; Lead the compliance management lead department to carry out work; Report major matters of compliance management to the chairman and general manager; Organize the drafting of the annual report on compliance management. 6. Legal affairs agencies or other relevant agencies are compliance management departments: study and formulate compliance management plans and basic systems; continue to pay attention to changes in laws and regulations, organize compliance inspections and assessments, and conduct compliance evaluations on systems and processes, Order rectification and continuous improvement of violations; accept reports of violations, organize or participate in investigations of violations, and put forward handling suggestions; organize or assist business department and HR department to carry out compliance training. 7. The business department of the enterprise is responsible for the daily compliance management in this field, and organizes, coordinates and supervises the compliance management in this business field. It is necessary for enterprises to build a comprehensive compliance management system framework for enterprises to carry out compliance work. There is no standard answer as to which department will undertake the compliance function, how to divide the scope of authority between these departments, and which authority configuration is more efficient. Hunan Construction Engineering Group and Dongfang Electric Company are the earliest companies in China to build a comprehensive compliance system, and both have achieved good results. Now the construction of the compliance management system structure of the two companies is briefly introduced to provide reference. Hunan Construction Engineering Group has established an Integrity Compliance Committee directly under the board of directors. The secretary of the Group's Disciplinary Committee serves as the head of the committee, and the main senior management of the group is a member of the committee. The Group has appointed a Chief Compliance Officer, which is also held by the Group's General Counsel. The Group has set up a compliance department, which has transferred the compliance function to the former Legal Affairs Department, whose name has been changed to Legal Compliance Department. The Legal and Compliance Department has a Compliance Division, which is responsible for the establishment and implementation of the Group's integrity and compliance system. There are a number of compliance officers under the Legal Compliance Department. The Group has established a compliance organization system framed by the Compliance Committee, the Chief Compliance Officer, the Group Legal Compliance Department and the Legal Compliance Department of each unit. Dongfang Electric Company has established a top-level design of compliance management with the structure of "Board of Directors-Strategy, Investment and Risk Management Committee-Company Management-General Counsel. As the Chief Compliance Officer, the Group's General Counsel is responsible for researching and formulating the company's compliance policy and overseeing the implementation of the management compliance culture and compliance system. The Legal Audit Department is the compliance management department, which is fully responsible for the implementation of the company's specific compliance work, including the formulation of basic compliance management system, compliance review system for major issues, compliance evaluation and compliance training. In addition, the Discipline Inspection and Supervision Department is used as a special management department to be responsible for the investigation and handling of violations, and other departments of the company and affiliated enterprises are directly responsible departments to build a complete compliance organization structure. The Role of 3. Lawyers in Building a Comprehensive Compliance Management System In the early stage of compliance business, compliance lawyers habitually carry out "case source thinking". They still regard traditional business such as contract review and labor handling as their advantages. They are used to participating in legal service work only when the parties have litigation disputes. They lack all-round understanding and control of the legal risks faced by customers. However, in the foreseeable future, with the diversified and refined legal needs of enterprises in the field of compliance, compliance lawyers must establish "customer thinking". The service content should not only cover multiple compliance fields, but also meet the business characteristics and actual needs of enterprises. In terms of building a compliance system framework, compliance lawyers should be familiar with the operation rules of the enterprise, understand the internal organizational structure of the enterprise, cooperate with the business departments of the enterprise, understand the actual needs of the enterprise, pay attention to the whole process of the enterprise from decision-making, implementation to supervision and assessment, covering multiple stages such as research, evaluation, improvement and implementation, and effectively integrate compliance work with enterprise operation. In the process of providing compliance legal services, compliance lawyers must constantly change their roles and combine the independence and professionalism of lawyers with the nature and characteristics of the enterprise. In addition to professional legal knowledge, they also need to have certain communication skills. During the development of specific projects, they must actively communicate with clients, establish a weekly or monthly work report system, regularly submit work results, and continuously improve work methods, implement compliance risk assessment, control, formulation and response of compliance measures to ensure that the progress of the project and the content of various tasks meet customer expectations. Let the compliance system really work within the enterprise and form a long-term mechanism. Most enterprises in China have an extremely complicated management system. In addition to the general board of directors, management and board of supervisors, there are also multiple departments responsible for supervision, such as risk control, audit, legal affairs, discipline inspection and supervision, and the functional orientation of compliance departments is still vague. When building the organizational structure of the compliance system, an enterprise should proceed from reality, combine the industry type, characteristics and unique operation mode of the enterprise, and establish a set of organizational structure in line with its own characteristics, so as to provide a good foundation and guarantee for the operation of the compliance management system.

2021-12-31