Point of view... "shutdown period" related issues combing.

Foreword In the field of labor law in China, there are a large number of laws and regulations and judicial interpretations, and the relevant provisions are complicated, leading to endless disputes. At the same time, based on the consideration of "localization" or "adjusting measures to local conditions", the application of labor law has a strong "regional nature". This paper starts with the laws and regulations, rules and normative documents in the field of labor law, and combines the cases to sort out the related issues of "work stoppage and pay period. Premise for 1. to enjoy the treatment of work stoppage and pay The first paragraph of Article 33 of the Regulations on Work Injury Insurance stipulates that if an employee suffers from an accident at work or suffers from an occupational disease and needs to suspend work to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension of work and salary, and the unit to which he belongs shall pay monthly. According to this provision, it can be seen that there are two prerequisites for the enjoyment of the benefits of the suspension period: first, the employee has suffered an accident injury or occupational disease as a result of work (all work-related injuries shall be recognized by the labor administrative department). The duration and determination of the period of 2. suspension of pay. (I) the duration of the period of suspension of pay The second paragraph of Article 33 of the "Regulations on Work Injury Insurance" stipulates that the period of suspension of work and pay is generally not more than 12 months. If the injury is serious or the situation is special, it may be appropriately extended after confirmation by the labor ability appraisal committee of the city divided into districts, but the extension shall not exceed 12 months. The provision specifies the upper limit of the suspension pay period and the upper limit of the extension. Under normal circumstances, the injury situation can be clearly determined by combining the injury situation with the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period" issued by various places; for the injury situation that is not in the "Classification Catalogue of Work-Related Workers' Work Suspension and Pay Period", it is generally calculated according to 6 months. For provinces that have not issued the "Classification Catalogue of Work-Related Workers' Work Stoppage and Pay Period", it shall be determined in combination with the leave certificate of the medical institution or the medical termination period. The method of determining the pay period for (II) work stoppage. After consulting the local labor law regulations and regulations, there are three main ways to determine the period of work stoppage and pay: First, it is determined by the employer directly according to the local work stoppage period catalogue, such as Shandong Province, Tianjin City, Chongqing City, etc. Article 3 of the measures for the Administration of work-related injury workers in Shandong Province shall promptly submit the diagnosis certificate issued by the work-related injury medical service institution to the unit to apply for work stoppage and pay. The employer shall, in accordance with the diagnosis certificate issued by the medical institution of the agreement, determine the period of suspension of work and pay in accordance with the "Classification Catalog of Work-related Workers in Shandong Province" (Annex 1), and notify the injured worker in writing (Annex 2). Article 3 of the measures for the Administration of work stoppage and salary retention of industrial injured workers in Tianjin, industrial injured workers or their close relatives shall promptly submit the diagnosis certificate issued by the medical institution of the industrial injury insurance agreement or the first diagnosis institution to the employer. The employer shall, within 10 working days after receiving the materials, determine the suspension period of the injured workers according to the diagnosis certificate issued by the medical institution and in accordance with the classification catalogue of the suspension and pay period of the injured workers in Tianjin (Annex 1), issue the notice on the determination of the suspension and pay period of the injured workers (Annex 2) to the injured workers, and send a copy to the social insurance agency at the same time. Article 4 of the measures for the Administration of work-related injury workers in Chongqing shall promptly hand over the diagnosis certificate issued by the work-related injury medical service institution to the unit. According to the diagnosis certificate of the work-related injury medical service institution, the employer shall determine the suspension and pay period of the injured employee in accordance with the "Catalogue", and notify the injured employee in writing. The second is determined by the labor ability appraisal committee, such as Shanxi Province, Ningxia Hui Autonomous Region, and Guangdong Province. Article 3 of the measures for the Administration of the period of suspension of work-injured workers in Shanxi Province (for trial implementation), the period of suspension of work-injured workers shall be confirmed by the Labor ability Appraisal Committee in accordance with the diagnosis certificate issued by the "Classification catalogue of the period of suspension of work-injured workers in Shanxi Province" (see annex) and the medical institution. The work-injured employees who have been confirmed by the Labor Ability Appraisal Committee shall notify the work-injured employees, employers and agencies in writing. "Ningxia Hui Autonomous Region Work Injury Workers' Work Suspension Period Management Measures" Article 3 Work Injury Workers' Work Suspension Period shall be determined by the District City Labor Ability Appraisal Service Center (hereinafter referred to as the Labor Ability Appraisal Agency) in accordance with the "Ningxia Hui Autonomous Region Work Injury Insurance Work Suspension Period Classification Catalogue" and work injury insurance agreement medical institutions in accordance with the regular treatment period of the injured part (unstable period and recovery period time) and diagnosis certificate confirmation. The work-injured employees who have been confirmed by the labor ability appraisal agency shall notify the work-injured employees, the employer and the work-related injury insurance agency in writing. Article 4 of the measures for the Administration of work-injured workers in Heilongjiang Province if the injuries suffered by work-injured workers are not included in the Classification catalogue of work-injured workers in Heilongjiang Province, the diagnosis certificate issued by the medical institution or the appraisal conclusion of the work stoppage period made by the municipal labor ability appraisal committee divided into districts shall be the work stoppage period. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. "Guangdong Province Work Injury Insurance Regulations" Article 25 If an employee needs to suspend work due to work-related injuries to receive work-related injury medical treatment, the original wages and benefits will remain unchanged during the period of suspension and salary retention, and the unit to which he belongs shall pay monthly. The period of suspension of pay shall be determined according to the end period of medical treatment and shall be confirmed by the labor ability appraisal committee, and the maximum period shall not exceed 24 months. Third, it is partly determined by the employer and partly by the labor capacity appraisal committee. Article 3 of the measures for the Administration of work-related injury workers in Heilongjiang Province shall promptly submit the diagnosis certificate or leave certificate issued by the work-related injury medical institution to the employer, and the employer shall, according to the diagnosis certificate of the work-related injury medical institution, in accordance with the classification catalogue of the work-related injury workers' suspension and salary period in Heilongjiang Province, and notify the injured employee in writing. Article 4 If the injury suffered by an injured worker is not included in the Classification Catalogue of Work-off Period for Work-Related Workers in Heilongjiang Province, the conclusion of the work-off period shall be the period of work-off and pay-off by the medical institution or the municipal labor capacity appraisal committee of the district. If the injured worker is injured in many parts or tissues and organs, the longest period of the corresponding work stoppage period shall be taken as the work stoppage period of the injured worker. Summary: For the issue of the period of work stoppage and pay period confirmation, this paper believes that it should first confirm whether the province where the employer is located has issued the "Measures for the Management of Work-Related Workers Work Stop and Pay" and the "Classification Catalogue of Work-Related Workers Work Stop and Pay Period". If the province where you are located has issued the above-mentioned documents, the employer will normally determine the period of suspension of work in accordance with the above-mentioned management measures and catalogues. If the province where you are located has not issued the above-mentioned similar documents, it needs to be determined in combination with the "Regulations on Work Injury Insurance" and the local regulations and evidence materials on the "Regulations on Work Injury Insurance"; the start time of the work stoppage period is generally from the day or the next day when the work injury occurs, until the employee's labor ability level is appraised or returned to work. Remedy for 3. employees to dispute the duration of the suspension pay period or the unit refuses to confirm the suspension pay period. This problem is only for the employees in the provinces that have issued the "Administrative Measures for Work-Related Workers to Stop Work and Pay" and the "Classification Catalogue of Work-Related Workers to Stop Work and Pay Period. (I), there are two types of relief for employees who have a dispute over the period of suspension of pay: First, if there is a dispute between the injured worker or his close relatives (relatives) and the employer over the period of suspension of work, they can submit an application for confirmation to the municipal labor ability appraisal committee divided into districts within a certain period of time, and the labor ability appraisal committee shall make a determination; if they are still dissatisfied with the conclusion made by the municipal labor ability appraisal committee divided into districts, they may apply to the provincial labor ability appraisal committee for reconfirmation within a certain period, the conclusion made by the provincial labor capacity appraisal committee is the final conclusion. Second: If the injured worker has any objection to the suspension period determined by the employer, he can apply to the labor ability appraisal committee of the overall planning area to directly determine the suspension period. The (II)'s relief method for the unit's refusal to confirm the suspension and pay period only exists in the "Administrative Measures for the Suspension and Pay Period of Work Injury Workers in Tianjin". The relevant provisions of this document are as follows: Article 6 If the employer refuses to determine the period of suspension of work and pay, the injured worker or his close relatives may apply to the labor capacity appraisal committee of the jurisdiction for confirmation. The labor ability appraisal committee shall, according to the industrial injury identification decision of the administrative department of human resources and social security, the diagnosis certificate of medical institutions and the classification catalogue of work stoppage and salary period of industrial injured workers in Tianjin, confirm the period of work stoppage and pay within 10 working days, issue a confirmation notice, and notify the social insurance agency and the unit where the industrial injury worker belongs. Summary: Combined with the above provisions and the search case, this paper holds that the employee due to the suspension of pay period of the objection, can obtain the relief way is relatively limited, the confirmation of the suspension of pay period generally does not fall within the scope of the court's authority. In the provinces or cities that have issued the "Administrative Measures for Work Suspension and Salary Retention of Work Injury Workers", most courts will directly determine it based on this method, but some judges believe that the court should not directly determine the period of work suspension and salary retention. For example, the (2018) E 01 Min Zhong No. 6885 judgment made by the Wuhan Intermediate people's Court holds that it is not within the scope of the people's court to confirm the suspension of work and pay period. The improper period of suspension of work and salary retention determined by the court of first instance ex officio shall be corrected. The plaintiff may claim separate rights on the confirmation of the pay period and the payment of wages. For the provinces or cities that have not issued the measures for the Administration of work stoppage and salary retention of injured workers, they can only be judged in combination with evidence materials. For example, the judgment (2020) Su 06 Min Zhong No. 2228 issued by Nantong Intermediate People's Court held that Ji Mou failed to provide other evidence to prove his claim of suspension of work and pay period except four certificates of illness. Therefore, the court of first instance confirmed that the suspension of work and pay period was not improper based on four certificates of illness. Ji Mou failed to provide evidence for his appeal claim, and the court could not support it. 4. whether the employee's work-related injury caused by the infringement of the third party, the lost work fee and the salary during the work stoppage period can be obtained at the same time. From the retrieved cases on this issue, there are two views for and against this issue: Among them, the main supporters are Changzhou Intermediate People's Court (2018) Su 04 Minzong No. 4234 Judgment, Suzhou Intermediate People's Court (2019) Su 05 Minzong No. 5577 Judgment, Dalian Intermediate People's Court (2019) Liao 02 Minzong No. 5894 Judgment, Urumqi Intermediate People's Court (2019) Xin 01 Minzong No. 2279 Judgment. This view holds that the regulations on Industrial injury Insurance do not have unlimited and prohibitive provisions on the treatment of employees during the period of work suspension, and the wages during the period of work suspension do not belong to the scope of medical expenses for work-related injuries. it is a matter borne by the employer as stipulated in the regulations on Industrial injury Insurance, and the civil liability borne by the third party cannot exempt the employer from its legal obligations. Those who oppose the above issues are Qingdao Intermediate People's Court (2019) Lu 02 Minzong No. 9382 Judgment and Shenyang Intermediate People's Court (2019) Liao 01 Minzong No. 7704 Judgment. The view is that, although wages and lost wages are based on different legal provisions, but from a substantive point of view, both are compensation for the actual reduction in income of workers who are unable to perform normal work due to injury. If the worker has received the lost work fee, the direct cost loss has been completely filled, and if the wage for the suspension period is obtained again, there is repeated compensation, which is not in line with the principle of civil compensation. Summary: Judging from the search results, local courts have not formed a unified judgment on the question of whether the lost work fee and the salary during the work-related injury caused by the infringement of the third party can be obtained at the same time. Therefore, disputes involving this issue should be judged and considered in combination with the region. This article has no theoretical elaboration, only from a practical point of view to sort out the three issues related to the suspension of pay period, if you can help colleagues in litigation or non-litigation issues encountered, the author is deeply honored.

2021-12-27

"Administrative Litigation Vision" (II) | Administrative Litigation Jurisdiction

Foreword The scope of accepting cases in administrative litigation is to solve the problem of the division of authority between the people's courts and other state organs in handling administrative cases, and to solve the problem of external division of labor, while the jurisdiction of administrative litigation is to divide the division of authority between the people's courts at all levels within the people's court system and between the people's courts at the same level, and to solve the problem of internal division of labor. In a sense, the scope of accepting cases determines the scope of administrative cases for the entire people's court from a macro perspective, while jurisdiction determines the scope of administrative cases for a single people's court from a micro perspective. The Concept of 1. Administrative Litigation Jurisdiction Administrative litigation jurisdiction refers to the division of authority between different levels and local people's courts to accept administrative cases of first instance. It is an important litigation legal system involving basic issues such as the organizational system of administrative trials and the protection of citizens' litigation rights. It is the division of jurisdiction between courts. The jurisdiction of administrative litigation is to solve the problem of which level and which court to sue when citizens, legal persons or other organizations believe that administrative acts belonging to the scope of court cases infringe upon their legitimate rights and interests. Jurisdiction is the division of powers of the people's courts to accept administrative cases of first instance. With the exception of railway transport courts, other special people's courts and people's tribunals do not hear administrative cases, nor do they examine and enforce cases in which administrative organs apply for the enforcement of their administrative acts. Jurisdiction is the division of authority between the higher and lower courts and the courts at the same level to accept administrative cases. In other words, the jurisdiction should solve the problem of division of competence between different trial levels and different regional courts at the same level. The division of jurisdiction does not include the division of second instance and retrial cases. We implement a four-level two-instance system. The second instance is the continuation of the first instance. The jurisdiction of the first instance case is determined, and the jurisdiction of the second instance case is determined accordingly. Chapter III of the Administrative Procedure Law has 11 provisions on the content of administrative litigation jurisdiction in China. For the people's court, it specifically clarifies the jurisdiction of administrative cases between the courts, that is, it stipulates which case should be accepted and tried by which court, and how the trial of administrative cases between different courts should be divided. For citizens, legal persons and other organizations, it solves the problem of which court to sue. In judicial practice, because the determination of jurisdiction is correct or not, it is often closely related to the fair trial of the case and the smooth implementation of the judgment results. It is even believed that "choosing the jurisdiction court is equivalent to winning half of the lawsuit". In procedural law, acts that violate the jurisdiction system in legal provisions are regarded as serious violations of procedural law. The Division Principle of 2. Administrative Litigation Jurisdiction (I) facilitate litigation. The jurisdiction of administrative litigation should be determined to facilitate the plaintiff, the defendant and other parties to carry out litigation, to facilitate their participation in litigation activities. (II) facilitate the correct, fair and effective exercise of judicial power by the people's courts. Facilitating the correct exercise of judicial power by the court includes the correct verification, determination of the facts of the case, and the correct application of legal norms. According to the provisions of the Administrative Procedure Law, the basic people's courts have jurisdiction over administrative cases of first instance. This provision includes factors that are local and nearby and facilitate the verification of facts. However, special customs administrative cases are highly professional and technical, and the jurisdiction of intermediate courts with better overall quality, level and conditions is conducive to the correct exercise of judicial power. (III) people's courts have an appropriate division of labor. When determining the jurisdiction of administrative litigation, we should consider the reasonable division of labor between the people's courts at all levels, so that the burden of a certain level of court should not be too heavy. The trial workload between the courts at the same level should be reasonably divided, and the trial power and trial workload between the upper and lower courts should also be reasonably distributed. The Level Jurisdiction of 3. Administrative Litigation (I) the jurisdiction of the four courts According to Chapter III of the Administrative procedure Law, the jurisdiction of the four-level courts is: the basic people's court has jurisdiction over administrative cases of first instance. The Intermediate People's Courts shall have jurisdiction as courts of first instance over the following administrative cases: cases involving lawsuits against administrative acts undertaken by departments under the State Council or local people's governments at or above the county level; cases handled by the Customs; major and complex cases within their respective jurisdictions; and other cases under the jurisdiction of the Intermediate People's Courts as prescribed by law. The Higher People's Courts shall have jurisdiction over major and complicated administrative cases of first instance within their respective jurisdictions. The Supreme People's Court has jurisdiction over major and complicated administrative cases of first instance throughout the country. According to the interpretation of the Supreme People's Court on the application of the Administrative Procedure Law (hereinafter referred to as the Judicial Interpretation of the Administrative Procedure Law), major and complex cases within the jurisdiction include joint litigation cases with significant social impact, foreign-related or involving Hong Kong Special Administrative Region, Macao Special Administrative Region, Taiwan Region, and other major and complex cases. The Implementation Measures of the Supreme People's Court on Improving the Pilot Reform of the Positioning of the Trial-level Functions of the Four-level Courts (Law [2021] No. 242, hereinafter referred to as Notice No. 242) supplements the jurisdiction of the four-level courts. Article 2 stipulates that the following administrative cases of first instance in which the people's government at the county or prefecture level is the defendant shall be under the jurisdiction of the grass-roots people's court: cases of disclosure of government information; cases of failure to perform legal duties; cases in which the administrative reconsideration organ does not accept or procedure rejects the application for reconsideration; and cases of administrative adjudication of disputes over the ownership of natural resources such as land and forests. The people's courts at all levels perform their respective duties, and the basic people's courts focus on accurately ascertaining the facts and resolving disputes in substance; the intermediate people's courts focus on the effective and final adjudication of the second instance and the precise determination of disputes; the higher people's courts focus on retrial to correct errors in accordance with the law and unify judgment standards; the Supreme People's Court supervises and guides the trial work throughout the country to ensure the correct and unified application of the law. (II) upgrading jurisdiction To raise the level of jurisdiction is to raise the level of jurisdiction over a case. Article 24 of the Administrative Litigation Law stipulates that people's courts at higher levels have the power to hear administrative cases of first instance under the jurisdiction of people's courts at lower levels. If a people's court at a lower level deems it necessary for a people's court at a higher level to try or designate jurisdiction over an administrative case under its jurisdiction as first instance, it may report to the people's court at a higher level for a decision. Article 4 of Circular No. 242 stipulates that if the basic people's court considers that the first instance civil, criminal and administrative cases under its jurisdiction belong to one of the following circumstances and need to be tried by the intermediate people's court, it may report to the people's court at the next higher level for trial: those involving major national interests and social public interests and should not be tried by the basic people's court; It belongs to a new type within its jurisdiction and the case is difficult and complicated; it has guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment of the people's court at the next higher level or the basic people's courts within its jurisdiction has taken effect in the past three years, which have not been resolved as of the time of the trial; the first instance of the intermediate people's court is more conducive to a fair trial. If the intermediate people's court considers that the civil, criminal, or administrative cases of first instance that have been accepted by the basic people's court under its jurisdiction belong to one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. Article 5 stipulates that if an intermediate people's court considers that a civil, criminal, or administrative case of first instance under its jurisdiction falls under one of the following circumstances and needs to be tried by a higher people's court, it may report to the people's court at the next higher level for trial: it is of guiding significance for the application of universal law; there are major differences in the application of law in similar cases in which the judgment has taken effect in the past three years between the people's courts at the people's courts at the next higher level or the intermediate people's courts within their jurisdiction, the case has not been resolved by the time of trial; the first instance by a higher people's court is more conducive to a fair trial. If the higher people's court considers that a civil, criminal or administrative case of first instance that has been accepted by the intermediate people's court under its jurisdiction falls under one of the above-mentioned circumstances and it is necessary to be tried by this court, it shall decide to upgrade its jurisdiction. The above rule that "the higher court can only raise the jurisdiction level of administrative cases but not lower the jurisdiction level" is conducive to avoiding the phenomenon of controlling the final outcome by demoting administrative cases first and then second instance. The Level Jurisdiction of (III) Reconsideration Cases With regard to the level jurisdiction of reconsideration cases, Article 134 of the Administrative procedure Law stipulates that in cases where the reconsideration organ is a co-defendant, the administrative organ that made the original administrative act shall determine the level jurisdiction of the case. Administrative reconsideration cases are different from the principle of "high not low" in determining the level of jurisdiction by the co-defendants, that is, the higher court corresponding to the two defendants is selected as the jurisdiction court, but the administrative organ that made the original administrative act clearly determines the level court. (IV) the level of jurisdiction of co-defendants In general, administrative litigation is under the jurisdiction of the basic court where the defendant is located, but when there are multiple defendants and the level of the defendant is different, there is a competition of jurisdiction. In this case, the principle of "higher than lower" is adopted to determine the level of jurisdiction by the highest-ranking administrative organ among the co-defendants. However, when the "department of the State Council or the local people's government at or above the county level" with a higher level of the co-defendant is considered to be not a qualified defendant after examination after filing the case, the administrative organ with a lower level in the same case is no longer under the jurisdiction of the high-level people's court. However, after the case has been heard in court and a certain review of the administrative actions made by the lower-level administrative organs, it is found that the higher-level administrative organs are not qualified defendants. In order to save judicial resources, the people's court can follow the Administrative Procedure Law. Article 24 stipulates that "the people's court at a higher level has the right to hear administrative cases of first instance under the jurisdiction of the people's court at a lower level". Continue to hear the case. If the court in charge of the case considers that there is a suspicion of taking the opportunity to raise the level of jurisdiction or has justifiable reasons to believe that it is not appropriate to continue the trial of the case, it may not help itself to try the case, and after ruling to reject the prosecution against a higher-level administrative organ, transfer the case to the people's court at a lower level with jurisdiction. The Geographical Jurisdiction of 4. Administrative Litigation The geographical jurisdiction of administrative litigation refers to the division of labor between the people's courts at the same level and in accordance with their respective jurisdictions for the trial of administrative cases of first instance. Geographical jurisdiction is based on the determination of the level of jurisdiction, from the horizontal to determine which court to accept administrative cases. (I) general territorial jurisdiction The basic principle of general territorial jurisdiction is that the plaintiff is the defendant, that is, the administrative case is under the jurisdiction of the people's court where the administrative organ that originally made the administrative act is located. General territorial jurisdiction is the basic method to determine the territorial jurisdiction of administrative litigation, and if there is no special provision, the court where the defendant is located is the competent court. (II) special territorial jurisdiction General territorial jurisdiction is the basic principle for determining the jurisdiction of the court, but special territorial jurisdiction takes precedence over general territory. If the law expressly provides that administrative cases are subject to the jurisdiction of a particular court, the principle that the plaintiff is the defendant cannot be applied. Unlike civil litigation cases, special people's courts do not hear administrative cases unless approved by the Supreme Court. Therefore, the exclusive jurisdiction of specialized courts cannot be applied to administrative litigation cases. The special territorial jurisdiction of administrative cases is mainly real estate cases. Article 20 of the "Administrative Litigation Law" stipulates that administrative litigation initiated by real estate shall be under the jurisdiction of the people's court where the real estate is located. Article 9 of the judicial interpretation of the administrative procedure law makes it clear that "administrative litigation due to real estate" refers to the litigation brought by the change of real property rights caused by administrative acts. If the real estate has been registered, the location recorded in the real estate register shall be the location of the real estate; if the real estate has not been registered, the actual location of the real estate shall be the location of the real estate. Therefore, not all cases related to real estate are under the jurisdiction of the court where the real estate is located. Only cases where the real estate right is established, changed, transferred, and eliminated directly due to the change of the real estate right, that is, the administrative action directly leads to the establishment, change, transfer, and elimination of the real estate right. (For reference cases, see (2017) Supreme Law Application No. 8347) (III) joint jurisdiction Joint jurisdiction means that two or more courts have jurisdiction over the same administrative case. In this case, the plaintiff has a certain choice of competent court. With regard to administrative cases under joint jurisdiction, the Administrative Procedure Law and its judicial interpretations mainly provide for two situations of joint jurisdiction. The first is a lawsuit filed against administrative coercive measures that restrict personal freedom. Both the defendant's location and the plaintiff's location have jurisdiction (Article 19 of the Administrative Procedure Law). And as long as the administrative organ has taken administrative compulsory measures to restrict personal freedom and is based on the same fact, even if other administrative compulsory measures or administrative penalties are taken, the principle of joint jurisdiction of the place where the defendant is located plus the place where the plaintiff is located still applies (Article 8, paragraph 2, of the Judicial Interpretation of the Administrative Procedure Law). Second, in cases after reconsideration, the courts of the place where the administrative organ that initially made the administrative act and the place where the reconsideration organ is located have jurisdiction (Article 18, paragraph 1, of the Administrative procedure Law). For cases under joint jurisdiction, the plaintiff may choose any court with jurisdiction to file a lawsuit. If the plaintiff files a lawsuit in each court with jurisdiction, the court that first filed the case shall have jurisdiction (Article 21 of the Administrative Procedure Law). (IV) cross-administrative jurisdiction Cross-administrative jurisdiction is a breakthrough and innovation in the general territorial jurisdiction of the plaintiff on the defendant. In cross-administrative jurisdiction, the court where the defendant is located is not the only court with jurisdiction, and the plaintiff may choose any other court that meets the requirements across regions as the jurisdiction court. The determination of cross-regional jurisdiction of administrative cases requires the approval of the Supreme People's Court, and the Higher People's Court determines the court's cross-regional jurisdiction over administrative cases based on the actual situation of the trial work (Article 18, paragraph 2, of the Administrative Procedure Law). Cross-administrative jurisdiction is conducive to reducing the local government's interference in the independent judicial power of the judiciary, and is conducive to maintaining the independence and impartiality of the judiciary. Taking the cross-administrative jurisdiction of Jinan City as an example, after the approval of the Supreme People's Court, the Higher People's Court of Shandong Province issued Lu Gao Fa Ming Chuan [2019] No. 290 "On Forwarding<最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>的通知》，确定济南两级人民法院自2019年10月1日起开展跨行政区域管辖行政案件改革试点工作。将基层人民法院管辖区域划分为东、中、西三个管辖片区，将各个区（市/县）划分至三个管辖片区中。对属于基层人民法院管辖的一审行政诉讼案件，原告既可以向最初作出行政行为的行政机关所在地基层人民法院提起诉讼，也可以向同一片区内其他基层人民法院提起诉讼。   （五）行政协议约定管辖   与民事争议中的合同或者其他财产权益纠纷相同，有关行政协议的行政纠纷，当事人也可以书面协议约定选择被告所在地、原告所在地、协议履行地、协议订立地、标的物所在地等与争议有实际联系地点的人民法院管辖，但违反级别管辖和专属管辖的除外（《最高人民法院关于审理行政协议案件若干问题的规定》第七条）。   五、移送管辖和指定管辖   （一）移送管辖   移送管辖是对管辖错误所采取的一种纠正措施，是指人民法院将不属于自己管辖的案件移送到有管辖权的人民法院。移送管辖主要包括</最高人民法院关于同意山东省高级人民法院开展行政案件集中管辖改革的批复>

2021-12-27

Viewpoint... Try to analyze the common mistakes of trademark rights protection -- take the "Pipiru" trademark rights protection as an example.

"The King of Fairy Tales" is a classic monthly fairy tale that I have read since I was a child. Cpaing and Rusisi are also "good friends" who accompanied me to grow up. Even now, when I see "Shuke Shuke, Shuke, who flies a plane; Beta Beta, Beta, who drives a tank," I can't help but sing. However, I was still surprised when I saw that Mr. Zheng Yuanjie was forced to suspend publication of "Fairy Tale King" in January 2022 because he devoted himself to trademark counterfeiting and rights protection. This also fully shows that "art comes from life and is higher than life", "accident and tomorrow do not know which will come first". In writing, I admire Teacher Zheng Yuanjie very much. Your work has influenced children for decades. This achievement is indeed enough to be proud. However, the author confirms that he is more professional than Mr. Zheng in trademark rights protection. After searching and analyzing many news reports and available public judgments and administrative ruling documents, the author has to say, Mr. Zheng, you are wrong. you really have to memorize this pot yourself! In many news articles, the author saw that Mr. Zheng mainly inquired about the files and review processes of the three trademarks, which are mainly aimed at "cpaing trademark No. 7197328, trademark No. 8229932, trademark No. 5423972, trademark struggle and rights protection", as follows: No. 7197328 Cpaing trademark No. 8229932 "Fairy Tale King" Trademark No. 5423972 "Shuke" trademark Judging from the above trademark files and the time of applying for invalidation, Mr. Zheng Yuanjie was indeed a little negligent. Take the trademark "cpaing" No. 7197328, which you spent the most energy on, as an example, and briefly analyze your mistakes. 1. Objection procedure error Judging from the process files, when the trademark entered the three-month preliminary examination announcement (June 27, 2010-September 27, 2010), you had already discovered the trademark and filed an application for trademark objection, but you filed an application for objection on the first day after the expiration (September 28, 2010), so it was bound to be rejected, thus missing the best time to protect rights. 2. Errors in the invalidation procedure According to the provisions of Articles 44 and 45 of the Trademark Law, applications for trademark invalidation may be filed at different times according to different legal bases. According to the news report and the author's analysis of the rights possessed by Mr. Zheng Yuanjie, Mr. Zheng believes that "Pipiru" is the name of the main character in the fairy tale "Pipiru and Lu Xixi" written by you, so it should not be registered as a trademark by others. There is no doubt that Mr. Zheng wrote the story of "Pipiru and Lu Xixi", and Mr. Zheng has the copyright of the story. It's just that copyright protects the expression of the work, not the author's thoughts, nor the name of the work, let alone the name of the story character. According to the principle of statutory rights, rights that are not expressly stipulated in the law do not constitute a right, that is to say, the names of characters in the story do not enjoy copyright. However, the law does not allow others to use the name of the role created by the author to seek illegitimate interests. After the continuous development of the law, the international community generally began to use a new name "commercialization right" to protect such interests, and in the application of trademark law, it is given the same status as other prior rights. Article 22 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation (No. 19 [2020] of the current law) issued on January 10, 2017, implemented on March 1, 2017 and revised on December 23, 2020 clearly stipulates that "for works within the copyright protection period, if the name of the work and the name of the role in the work have a high reputation, the use of it as a trademark on the relevant goods can easily lead the relevant public to mistakenly believe that it has been approved by the right holder or has a specific connection with the right holder, and if the parties claim that it constitutes a prior interest, the people's court will support it." It can be seen that Mr. Zheng wanted to claim the prior right to the "Pipiru" trademark. The disputed trademark violated the provisions of Article 32 of the Trademark Law and applied for the invalidation of the trademark. However, it should be pointed out that if the claim of invalidity through this reason must be "within five years from the date of trademark registration" and "for malicious registration, the owner of a well-known trademark is not subject to the five-year time limit." Through the trademark process, it can be seen that Mr. Zheng applied for invalidation on May 25, 2018, which far exceeded the legal time limit of five years (September 28, 2015) from the date of trademark registration. Mr. Zheng did not make the request within five years. No matter intentionally or unintentionally, or just because he did not understand the law, he gave up this right. Therefore, when applying for invalidation, Mr. Zheng can only try to use "those who violate the provisions of Article 4, Article 10, Article 11, Article 12 and Article 19, paragraph 4 of this Law, or obtain registration by deception or other improper means" to circumvent the limit of more than five years. However, at present, teacher Zheng has not received support for this reason. Therefore, the trademark "Pipiru" No. 7197328 was maintained and registered after court hearing. In this invalidation case, the Beijing Higher People's Court has issued (2019) Jingxing Final Administrative Judgment No. 10150, and the State Intellectual Property Office has also implemented the judgment and maintained the registration of the trademark. The reasoning part of the judgment clearly pointed out that the three characters "Pipiru" have neither adverse effects, nor will they bring about misidentification of characteristics such as quality, and there is no case of registration by improper means, and registration should be maintained in accordance with the law. In order to balance the interests and stabilize the trademark status, China's Trademark Law gives the prior right holder five years to claim the right, and if he does not claim it for five years, it will be regarded as a waiver. There is always a time limit for the protection of rights. Therefore, the trademark "Pipiru" No. 7197328 is indeed legally registered, which has nothing to do with morality. Through the above analysis, it can be seen that Mr. Zheng Yuanjie has made many mistakes in the process of safeguarding his rights for 10 years, which has caused this embarrassing situation. As a professional intellectual and a reader of Mr. Zheng for many years, I really admire Mr. Zheng for devoting all his energy to trademark rights protection by stopping the publication of "The King of Fairy Tales". We really need this kind of "true" spirit of rights protection at present, but we should also remind you-copyright owners, name owners, name owners, design patent owners and other prior rights holders, we should pay attention to the situation of other people's registered trademarks in time. If we encounter the trademark being registered maliciously by others, we must timely submit a request for invalidation. We must not delay the five-year legal period after the trademark is approved and registered. Otherwise, after five years, it will really increase the difficulty of safeguarding their rights for no reason, and even cause irreparable consequences. Naturally, the best way is not to be invalidated after being registered, a better corporate trademark strategy, and look at the next decomposition.

2021-12-27

If the third party constitutes an apparent agent in the handling of insurance business, the insured shall notify the third party of the validity of the termination of the insurance contract and the insurer.

[brief case]] On August 22, 2016, Wang mou signed an insurance contract with an insurance company to insure employer's liability insurance. the insurance period is from August 23, 2016 to August 22, 2017. the insured amount of each employee is casualty 800000 yuan, the insured amount of medical expenses is 80000 yuan, and the total insurance premium is 161280 yuan. the second paragraph of article 24 of the employer's insurance clause states that "if the applicant requests to terminate the insurance contract after the insurance liability starts, the insurance contract, the insurance contract shall be terminated, the insurer shall charge the premium for the period from the date of commencement of the insurance liability to the date of termination of the contract at the short-term rate specified in the table below, and refund the remaining portion of the premium. The part of the insured period of less than one month is charged on a monthly basis"; in addition, the two parties also signed a "payment agreement", which stipulates that the insurance premium shall be paid in installments. The agreement states: "The insurer and the insured have agreed to reach a cost payment agreement. This agreement is an integral part of the insurance contract. The insurance premium under this insurance contract will be paid by the applicant in the following way: the insurance premium will be paid in installments 1. the premium amount will be 48384 yuan, and the delivery date will be 2016.8.22;2. The premium amount will be 112896 yuan, and the delivery date will be 2016.12.31. If the policyholder fails to pay the premium as agreed, the insurer will bear the corresponding insurance liability in proportion to the actual premium paid to the total premium after the insurance accident". The payment agreement is stamped with a special seal for the appellee's underwriting business, and the operator has the signature of "Sun. After the contract was signed, Wang paid the first premium of 48384 yuan, but the final premium was not paid. In mid-December 2016, Sun called Wang to pay the premium. Wang said that he would no longer pay the premium and asked to terminate the insurance contract. Later, Sun informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Due to a dispute over the delivery of the final premium, an insurance company sued Wang to the court. After hearing, the court ruled that the 1. Wang should pay an insurance company's premium of 112896 yuan within 10 days after the judgment came into effect. 2. dismiss other claims of an insurance company. After Wang filed an appeal, the court of second instance made a judgment on August 29, 2018, and ordered the cancellation of the first-instance judgment. The appellant Wang paid the appellee an insurance company insurance premium of 32256 yuan within 10 days from the effective date of the judgment. Other claims of an insurance company of the appellee. Because of not accepting the final judgment, an insurance company applied to the Shandong Higher People's Court for a retrial, and the court ruled that an insurance company's retrial application was rejected after review. focus of controversy] The focus of the dispute in this case is mainly whether the policyholder notifies the third party involved in the case whether the termination of the insurance contract will have the effect of the termination of the contract. The court of first instance held that] Wang signed an insurance contract with an insurance company, the two sides agreed on the insurance period and liability, an insurance company in accordance with the contract has settled Wang's insurance accident, the insurance contract signed by both parties has taken effect and has been performed, Wang should pay all the premiums in accordance with the contract. An insurance company demanded Wang's 112896 yuan premium in arrears, which did not violate relevant laws and regulations and supported it. Wang's claim on the termination of the performance of the contract is not supported by evidence and is not supported. The court of second instance held that] In the opinion of the Court, Article 35 of the Insurance Law stipulates: "The policyholder may pay the full premium or the premium in instalments to the insurer in accordance with the contract." During the second instance, the appellant approved the authenticity of the copy of the payment agreement submitted by the appellant, and the payment agreement stipulated that the insurance premium involved was paid in installments. The appellant paid the initial premium as agreed and the final premium was not paid. However, the appellant claimed that he had notified Sun Mou, the manager of the insurance involved, before the expiration of the final premium, to request the termination of the insurance contract, to stop paying the premium, and to apply for Sun Mou to testify in court. The Court believes that the payment agreement involved in the case is stamped with a special seal for the appellee's underwriting business, and the handler has Sun's signature. The appellee also recognizes the authenticity of the payment agreement submitted by the appellee. Therefore, Sun's identity as the insurance handler involved in the case is confirmed by the Court. Sun testified in court that in mid-December 2016, he called the appellant for the premium, and the appellant had made it clear that he would no longer pay the premium and would terminate the insurance contract. Sun informed the person in charge of the appellee of the appellee's intention to terminate the insurance contract. Sun has no legal interest with the appellant, and the witness testimony issued by him as the insurance agent involved in the case is objective, and the court accepts the witness testimony. According to Article 24 of the employer's liability insurance clause involved in the case, the insurance contract shall be terminated from the date of notification to the appellee, and the appellee shall actually insure for five months, with an annual rate of 50%, so the total premium payable by the appellant shall be 80640. The appellant has already paid the insurance premium of 48384 yuan and must pay another insurance premium of 32256 yuan. To sum up, the original court found that the facts were wrong and should be corrected. The retrial court held that] In this case, an insurance company recognized the authenticity of the payment agreement submitted by Wang, because the person in charge of the payment agreement had Sun's signature and stamped with a special seal for the business of an insurance company, Wang had reason to believe that Sun had the right to handle the insurance business involved on behalf of an insurance company. In the original trial, Sun appeared in court to confirm that he had informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Sun and Wang have no legal interest, and the witness testimony issued by him as the insurance agent involved in the case is objective. According to Article 24 of the employer's liability insurance clause involved in the case, the original judgment determined that since Wang notified an insurance company From the date, the insurance contract involved in the case was terminated, and it was not improper to determine the facts and apply the law. To sum up, the retrial application of an insurance company does not conform to the provisions of items 2 and 6 of Article 200 of the the People's Republic of China Civil Procedure Law. In accordance with the first paragraph of Article 204 of the the People's Republic of China Civil Procedure Law and the second paragraph of Article 395 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the ruling is as follows: Reject an insurance company's retrial application. Lawyer comment] Appreciative agency refers to a system that belongs to the unauthorized agency, but because of the cause attributable to the agent, causes the appearance or appearance of the authorized act, causes the good faith and no fault of the relative person to believe that the unauthorized agent has the power of agency and carries out legal acts with it, and the law provides for the same effect as the right to act. The constituent elements of apparent agency include:(1) the agent does not actually have the power of agency;(2) the actor has the appearance of being granted the power of agency;(3) the relative believes that the actor has the power of agency and is in good faith and without fault;(4) the relative performs legal acts with the actor based on the trust of the power of agency;(5) The appearance or appearance of the actor who is granted the power of agency can be attributed to the agent. In this case, the payment agreement involved in the case is stamped with a special seal for the underwriting business of the insurance company, and the handling person has the signature of a third person, Sun. Based on reasonable trust and the appearance of the agency, the insured Wang will no longer pay insurance premiums and terminate the insurance contract. The intention is to inform Sun that the insurance company has no evidence to prove that the appearance of the agency cannot be attributed to itself, and there is no evidence to prove that the policyholders are malicious, therefore, it should be regarded as an apparent agent, the policyholder Wang to the third person Sun a notice of the validity of the termination of the contract and the insurance company, at this time, the agent, that is, the insurance company may not claim no right to act against the agent.

2021-12-27

Viewpoint... A review of mortgage issues in land expropriation.

Brief of the case In September 2010, a bank and a company signed a maximum mortgage contract, a company to land and real estate for the loan to provide mortgage guarantee, for mortgage registration. In 2014, the land and real estate used for mortgage were demolished by the government because of municipal projects, and the mortgage was lost. A bank sued the court to confirm that the compensation for the demolition of the mortgaged property has the right of priority within the scope of the principal and interest. The court held that there was insufficient evidence in the claim of a certain bank, so it rejected the claim of a certain bank. case assessment The reason why the court in this case did not support a bank to receive priority compensation for demolition and relocation is: The land and real estate mortgaged in this case were demolished by the government due to municipal projects, and the collateral was lost. According to Article 80, paragraph 1, of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the the People's Republic of China Security Law, "in the event of loss, damage or expropriation of the mortgage, the mortgagee may give priority to the payment of insurance money, compensation or compensation for the mortgage". And Article 174 of the the People's Republic of China Property Law stipulates that "during the period of security, if the secured property is damaged, lost or expropriated, the security interest holder may give priority to the insurance money, compensation or compensation obtained". Therefore, a bank has a priority right to be paid for the mortgage demolition paid by the government department. However, a bank should bear the burden of proof whether the government compensates and how much it should compensate. However, none of the banks provided evidence, so the court held that "the priority compensation for demolition and relocation claimed by a bank will not be dealt with temporarily, and another claim can be made after the bank has corresponding evidence". Summary of practical experience Don't forget the past, the teacher of the future. To avoid similar failures in the future, the following recommendations are made: Based on the basic principle of "who claims who gives evidence" in the Civil Procedure Law, after the mortgage is levied, the mortgagee shall list the relevant evidence to prove whether the mortgagee has received compensation and the specific amount of compensation when the mortgagee claims priority compensation for the mortgage. For example, the mortgagee may collect the collection announcement of the mortgage and find information about the collection compensation.

2021-12-26

Corporate Litigation Study... Corporate litigation rules of the company promoter liability dispute.

Foreword The company law person is the main subject engaged in commercial activities, when the company is still in the initiation stage, at this time the company is not established, does not have the ability to independently assume civil liability. The promoter is the representative organ and executive organ of the established company, and conducts civil activities on behalf of the established company. Through the relevant legal provisions and supplemented by cases, this paper briefly combs the judicial practice of the liability disputes of the company's sponsors. 1. related regulations 1. Company Law of the People's Republic of China Article 94 the promoters of a joint stock limited company shall bear the following responsibilities: (1) when the company cannot be established, they shall be jointly and severally liable for the debts and expenses arising from the establishment; when the (II) company cannot be established, they shall be jointly and severally liable for the return of the shares paid by the subscribers and the interest on the bank deposits for the same period; (III) in the process of the establishment of the company, the interests of the company are damaged due to the fault of the promoters, the company shall be liable for compensation. 2. (II) of the Provisions of the Supreme People's Court on Several Issues concerning the Application of the the People's Republic of China Company Law Article 22 When a company is dissolved, any capital contribution that has not been paid by the shareholders shall be treated as liquidation property. The outstanding contributions of shareholders, including the outstanding contributions due and payable, as well as the contributions that have not yet expired in instalments in accordance with the provisions of Articles 26 and 80 of the Company Law. When the company's property is not sufficient to pay off the debts, the people's court shall support the creditor's claim that the shareholders who have not paid their capital contributions, as well as other shareholders or promoters at the time of the establishment of the company, shall bear joint and several liability for the debts of the company within the scope of the unpaid capital contributions. 3. (III) of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law Article 1 The persons who, for the purpose of establishing a company, sign the articles of association, subscribe for capital contributions or shares from the company and perform the duties of establishing the company shall be recognized as the promoters of the company, including the shareholders of the limited liability company at the time of its establishment. Article 2 If the promoter signs a contract in its own name for the establishment of the company, and the counterparty to the contract requests the promoter to bear the contract liability, the people's court shall support it; if the counterparty to the contract requests the company to bear the contract liability after the establishment of the company, the people's court shall support it. Article 3 If the promoter signs a contract in the name of the established company, and the contract counterpart requests the company to bear the contract liability after the establishment of the company, the people's court shall support it. After the establishment of the company, there is evidence to prove that the promoter used the name of the company in the establishment to sign a contract with the counterparty for its own benefit, and the company claims not to bear the contract liability on this ground, the people's court shall support it, except for the relative person's good faith. Article 4 If a company is not established for some reason, the people's court shall support the creditor's request that all or part of the promoters bear joint and several liability for the expenses and debts arising from the establishment of the company. If some of the promoters, after assuming the responsibility in accordance with the provisions of the preceding paragraph, request the other promoters to share the responsibility, the people's court shall order the other promoters to share the responsibility in proportion to the agreed responsibility; if there is no agreement on the proportion of responsibility, the responsibility shall be shared in accordance with the agreed proportion of capital contribution; if there is no agreement on the proportion of capital contribution, the responsibility shall be shared in accordance with equal shares. If the company is not established due to the fault of some of the promoters, and the other promoters claim that they bear the expenses and debts arising from the act of establishment, the people's court shall determine the scope of liability of the party at fault according to the circumstances of the fault. Article 5 If the promoter causes damage to others due to the performance of the company's establishment duties, and the victim requests the company to bear the liability for tort compensation after the company is established, the people's court shall support it; if the company is not established and the victim requests all the promoters to bear joint and several liability, the people The court shall support it. After the company or the promoter without fault has assumed the liability for compensation, it may recover the compensation from the promoter at fault. Article 13 If a shareholder fails to perform or fails to fully perform its capital contribution obligations, and the company or other shareholders request it to fully perform its capital contribution obligations to the company in accordance with the law, the people's court shall support it. If the creditors of the company request that the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations shall bear supplementary compensation liability for the part of the company's debts that cannot be paid off within the scope of the principal and interest of the unfunded capital contribution, the people's court shall support it; the shareholders who have not fulfilled or fully fulfilled their capital contribution obligations have already undertaken the above-mentioned responsibilities, and other creditors make the same request, the people's court shall not support it. If a shareholder fails to perform or fails to fully perform the obligation of capital contribution at the time of the establishment of the company, and the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests the promoter of the company and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the promoter of the company assumes responsibility, it may recover compensation from the defendant shareholder. If a shareholder fails to perform or fully perform the obligation of capital contribution when the company increases its capital, the plaintiff who files a lawsuit in accordance with the first or second paragraph of this article requests that the directors and senior managers who have not paid their capital contribution bear the corresponding responsibilities for failing to fulfill the obligations stipulated in the first paragraph of Article 147 of the company law, The people's court shall support it; after the directors and senior managers bear the responsibility, they may recover compensation from the defendant shareholders. Four situations in which the 2. promoter is liable 1. Sponsor liability in the event of failure to establish a company Since the established company does not yet have an independent legal personality, it is legally considered a partnership between the promoters. If the company is successfully established, the creditor's rights and debts arising in the process of establishment shall be inherited by the company after the establishment; however, in the event of the failure of the establishment of the company, the relevant legal liabilities shall be jointly and severally borne by all promoters. In this regard, Article 4 of the "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" clearly stipulates. 2. The liability of the promoter in the case of the establishment of infringement. The promoter is the legal authority of the established company, and the company shall generally be liable for the infringement caused by the performance of the establishment duties. Since the establishment of the company in the legal evaluation as a partnership between the promoters, if the company is not ultimately formed, the promoters should be jointly and severally liable for the tort. In this regard, Article 5 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law clearly stipulates. 3. Legal liability of the promoter in the event of a contract signed in its own name for the establishment of the company. According to the provisions of Article 23 of the the People's Republic of China Company Law, the establishment of a company must have a company domicile. Since the company has an independent legal personality only from the date of the issuance of the business license, the company is still in the establishment stage at the time of leasing the office space. At this time, it is common for the promoters to sign relevant lease agreements and decoration design contracts in their own name, especially when the company is in operational difficulties after its establishment, disputes will arise over how to perform the relevant contracts and how the promoters assume responsibility. In this regard, Article 2 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law gives the counterparty the right to choose, which stipulates that "if the promoter signs a contract in his own name for the establishment of a company, the people's court shall support the request of the counterparty to the promoter to bear the contractual liability. If the company confirms the contract stipulated in the preceding paragraph after its establishment, or has actually enjoyed the contractual rights or performed the contractual obligations, and the contract counterpart requests the company to assume the contractual liability, the people's court shall support it." From the perspective of judicial practice, the number of cases caused by the responsibility of the promoter in this case is relatively large, and the responsibility of the promoter is also more typical. 4. Liability for defects in capital contributions and joint and several liability for capital contributions According to the provisions of Articles 30 and 93 of the the People's Republic of China Company Law, after the establishment of the company, if the actual price of the non-monetary property contributed by the promoters as the establishment of the company is significantly lower than the price set in the articles of association, the difference shall be made up by the shareholder (promoter) who delivered the capital contribution; other shareholders (promoters) at the time of the establishment of the company shall bear joint and several liability. The third paragraph of Article 13 of the (III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law stipulates that "shareholders who fail to perform or fail to fully perform their capital contribution obligations when the company is established, in accordance with paragraph 1 or paragraph 2 of this article If the plaintiff in a lawsuit requests the company's promoter and the defendant shareholder to bear joint and several liability, the people's court shall support it; after the company's promoter assumes responsibility, it may recover compensation from the defendant shareholder." This provision extends the provision of joint and several liability between promoters in a joint stock company under article 93 of the the People's Republic of China Companies Act to a limited liability company for their respective capital contributions to the company. In addition, in accordance with the provisions of Article 13, paragraph 2 and Article 19 of the (III) of the Supreme people's Court on several issues concerning the Application of the the People's Republic of China Company Law, the creditors of the company may request shareholders who have not fulfilled their capital contribution obligations or have not fully fulfilled their capital contribution obligations to bear supplementary liability for the unpayable part of the company's debts within the scope of the principal and interest of the uncontributed capital, and such liability for repayment is not subject to the limitation of action. In the case of a limited liability company, the promoter's liability for false capital contributions in the process of establishing the company is transformed into the liability of the company's shareholders for false capital contributions after the company is established. Judicial Practice of 3. Sponsor Liability Dispute Internal legal liability of (I) promoters-company establishment disputes Case 1: Chen Yanping v. Han Kemin and the third party Liu Xiangquan and Liu Songyu Company Establishment Dispute [Henan Dengfeng Municipal People's Court (2007) Dengmin Yichu Zi No. 1437-2 Civil Judgment]] In this case, the company jointly funded by the four shareholders was not actually established. The court determines the proportion of each promoter's liability, taking into account the amount of funds that each promoter has not actually contributed and taking into account the conduct of each promoter in the course of the establishment of the company. Case 2: Li Haige v. Dong Daoming Sponsor Liability Dispute [Beijing Fangshan District People's Court (2014) Fang Min Chu Zi No. 02587 Civil Judgment (First Instance), Beijing Second Intermediate People's Court (2014) Er Zhong Min Zhong Zi No. 06590 Civil Judgment (Second Instance)]] Li Haige, Dong Daoming and other four people plan to jointly establish a limited company operating cosmetics, and signed a "cooperation agreement" for this purpose. After paying the capital contribution by Li Haige and others, Dong Daoming registered a shareholder as his own one-person limited company, Beijing Tianzi Weiye Cosmetics Co., Ltd. After the trial, the court held that Dong Daoming registered the target company as a one-person limited liability company, and its behavior violated the agreement of the cooperation agreement, resulting in Li Haige unable to achieve the purpose of the contract, and ordered the termination of the cooperation agreement and the return of Li Haige's investment principal and interest by Dong Daoming. External legal liability of (II) promoters-signing contracts in their own name for the establishment of companies Case 1: Qingdao Haidu Group Co., Ltd. v. Qingdao Zhongshan Paris Spring Department Store Co., Ltd. and Qingdao Siji Spring Department Store Co., Ltd. [Qingdao Intermediate People's Court (2014) Qing Min Er Shang Zhong Zi No. 979 Civil Judgment (Second Instance)]] Four Seasons Department Store is a limited liability company jointly initiated by Paris Department Store, Four Seasons Commercial Company and Ji Qinghuan. In the process of establishing the Four Seasons Department Store, Paris Department Store and Four Seasons Commercial Company issued a "Letter of Commitment" to the lessor Haitong Group in order to decorate the mall, stating that it will be the sixth month and the twelfth month after the establishment of Four Seasons Department Store. The decoration payment will be paid twice in the month. After the establishment of Four Seasons Department Store, it did not manage well, but in order to deal with related claims and debts, it signed an agreement with Haitong Group, stating that Four Seasons Department Store will pay for the relevant decoration. Qingdao Intermediate People's Court held that the appellee (Haidu Group) confirmed the contents of the Letter of Commitment signed by the appellee (Haidu Group) and the appellant (Paris Department Store) before the establishment of the Four Seasons Department Store by signing an agreement with Four Seasons Department Store, and Four Seasons Department Store had fulfilled some obligations to the appellee (Haidu Group), that is, the appellee (Haidu Group) has chosen to claim rights to Four Seasons Department Store through its actions, and can no longer require the promoter to bear responsibility in accordance with Article 2, paragraph 1, of the (III) for Judicial Interpretation of the Company Law. Case 2: Dispute over Construction Contract between Guangdong Baosheng Air Conditioning Equipment Engineering Co., Ltd. and Xu Guicheng and Guangzhou Shangliyuan Restaurant Management Co., Ltd. [Guangdong Zengcheng City People's Court (2013) Sui Zengfa Min Er Chu Zi No. 701 Civil Judgment (First Instance), Guangzhou Intermediate People's Court (2015) Sui Fa Min Er Zhong Zi No. 593 Civil Judgment (Second Instance)]] The People's Court of Zengcheng City, Guangdong Province, held in the first instance that the behavior of the Appreciation Liyuan Hotel to pay the project cost of the contract involved in the case to Baosheng Air Conditioning Company and the behavior of Baosheng Air Conditioning Company to issue invoices to the Appreciation Liyuan Hotel, all showed that the Appreciation Liyuan Hotel confirmed the contract involved in the case, and it has actually enjoyed the contractual rights and fulfilled the contractual obligations ...... And Baosheng Air Conditioning Company also knew that the contract involved was signed for the establishment of the Appreciation Garden Hotel when the contract was signed, and now the Appreciation Garden Hotel has been established in accordance with the law, so the rights and obligations of the contract involved should be enjoyed and assumed by the Appreciation Garden Hotel in accordance with the law, and accordingly confirmed that the subject of the contractual obligations involved is the Appreciation Garden Hotel. The court of second instance changed the judgment that the promoter, not the company, should bear the responsibility on the grounds that the court of first instance "did not exercise the right of interpretation and Baosheng Company did not choose the subject of responsibility. It should be pointed out that the counterparty exercises the right of choice on the premise that the company has exercised the right of intervention after its establishment, and the counterparty may request the company to assume contractual liability only after the company has expressed or implied its willingness to inherit the contractual rights and obligations. The above-mentioned "(III) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law" not only implements the principle of contract relativity, but also prevents the promoter and the promoter's creditors from abusing it by setting conditions for the relative to choose to request the company to assume responsibility Rights harm the company's interests in order to protect the company's legitimate property rights and interests from infringement. At the same time, it should also be noted that in the case of the promoter signing a contract in its own name for the establishment of the company, although the relative has the right to choose, but has no right to require the promoter and the company after the establishment of the contract. Case 3: Cai Boquan, Hubei Gedian Development Zone Chengxiang Clothing Co., Ltd. and Liu Hansen's Housing Lease Contract Dispute [Hubei Higher People's Court (2014) E Min Li Er Zaizong Zi No. 0008 Civil Ruling]] The Hubei Provincial higher people's Court held that Cai Boquan signed a house lease contract with Liu Hansen and, as a promoter, set up Yuchengxiang Company with the leased house as a factory building and registered it for industry and commerce. Chengxiang Company, as the actual lessee, uses the house and pays the rent. Cai Boquan and Liu Hansen signed a house lease contract behavior is the performance of duties, the actual subject of the contract is Yu Chengxiang Company, the contract rights and obligations should be borne by Yu Chengxiang Company. When the appellee Liu Hansen sued, he had clearly chosen Cai Boquan as the defendant in this case and asked him to bear contractual responsibility, which should be supported by the people's court. In the course of the lawsuit, Liu Hansen applied to pursue Yu Chengxiang Clothing Company as a co-defendant in the case to participate in the lawsuit, which is not in accordance with the law.

2021-12-26

Viewpoint | Three Private Lending Cases and Typical Significance

Case one: Li mou and sun mou are friends. On August 6, 2017, Li and Sun signed a loan contract. The two parties agreed that Sun requested a loan from Li for business activities. The amount of money Li lent to Sun was 240000 yuan, and the loan period was 12 months., From August 6, 2017 to August 5, 2018. The two sides agreed to an annual interest rate of 18%, that is, the annual interest of 43200 yuan. After the expiration of the term, Sun did not repay the principal and interest, and Li sued to the court, demanding Sun to repay the principal of the loan of 240000 yuan, the interest of 43200 yuan, and the overdue interest from August 6, 2018 to the date when the principal of the loan was actually paid. The court held that the interest of 43200 yuan during the loan period claimed by Li mou was in line with the contract and did not violate the legal provisions. the court supported it according to law. Overdue interest, based on the principal of 240000 yuan, is calculated at four times the one-year loan market quotation rate issued by the National Interbank Funding Center authorized by the People's Bank of China, and the excess is not supported. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (amended on December 23, 2020), the people's court shall support the newly accepted first-instance private lending cases after August 20, 2020, the loan contract was established before August 20, 2020, and the parties request to apply the judicial interpretation at that time to calculate the interest part from the establishment of the contract to August 19, 2020; for the portion of interest from August 20, 2020 to the date of return of the loan, the standard of interest rate protection under this provision at the time of prosecution is applied. In other words, using August 20, 2020 as the dividing line, interest is calculated after that point at four times the LPR at the time the contract was established, and exceeding that interest rate cap is an illegal debt and is not protected. Case two: Wu Mou and Duan Mou are friends. On October 19, 2018, Duan wrote an IOU for Wu Mou, stating that "Duan borrowed 200000 yuan from Wu Mou today, with an annual interest rate of 24%.". On the same day, Wu Mou transferred money to Duan 200000 yuan. After a refusal to repay the loan and interest, Wu filed a lawsuit with the court, requesting an order to return the principal of Wu's loan of 200000 yuan. Pay the loan interest of 87978 yuan from October 20, 2018 to August 19, 2020 calculated according to the annual interest rate of 24%. Pay the loan interest from August 20, 2020 to the actual repayment date, calculated at four times the market quoted interest rate for one-year loans. After hearing, the court held that Wu Mou transferred 200000 yuan to Duan Mou, Duan Mou issued an IOU for Wu Mou, and a private lending relationship was formed between Wu Mou and Duan Mou. Wu has filed lawsuits in the city's courts many times within two years. Combined with the interest and other expenses he agreed or actually received, Wu should be determined to constitute a professional lender, and the loan relationship between Wu and Duan is invalid. In addition to repaying the principal, Duan should also pay Wu's interest loss, based on 200000 yuan, calculated according to the loan market quotation interest rate published by the National Interbank Lending Center, from October 20, 2018 to the actual payment date. Typical meaning: According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, if a lender fails to obtain the qualification for lending in accordance with the law and repeatedly engages in paid private lending for many times within a certain period of time, it can generally be determined to constitute a professional lending act. Professional lending is business and for-profit. According to the law, combined with the trial practice, the same plaintiff or related plaintiff filed more than 5 private lending cases with the city's courts within two years, or the lender lends funds to the society for more than 3 times within two years, it can generally be determined that the lender's lending behavior is commercial. Private lending contracts formed as a result of professional lending practices are invalid. The borrower shall return the principal of the loan and the loss of interest during the period of occupation of the funds. Interest losses should generally be calculated in accordance with the loan market quotation rate published by the National Interbank Lending Center, and cannot be calculated in accordance with the high interest standard agreed in the private lending contract. Case three: Qi and Sun are friends. From February 21, 2019 to July 9, 2019, Qi transferred money to Sun's account four times, totaling 620000 yuan. Qi thought that Sun borrowed money from him on the grounds of business working capital, so Qi filed a lawsuit to order Sun to return the loan of 620000 yuan and pay the interest calculated according to the loan interest rate for the same period published by the National Interbank Lending Center, from March 26, 2021 to the date of actual payment. The defendant Sun a defense between the two sides is not a loan relationship but a partnership. The plaintiff Qi held an electronic transfer receipt, WeChat screenshots, short messages, telephone recordings, etc., claiming that there was a loan relationship between the two parties. The court held that the evidence of the partnership provided by the defendant Sun and the testimony of witnesses were not sufficient to prove that the two parties were in a partnership. Therefore, it is determined that there is a private lending relationship between the two parties, and the defendant Sun should repay the plaintiff Qi's principal of RMB 620000 yuan and interest. Typical meaning: Article 14 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases stipulates that "the plaintiff shall file a private lending lawsuit on the basis of creditor's rights documents such as IOUs, receipts and IOUs, and the defendant shall file a defense or counterclaim on the basis of the basic legal relationship, And provide evidence to prove that the creditor's rights dispute is not caused by the private lending behavior, The people's court shall try in accordance with the basic legal relationship." Article 16 stipulates: "If the plaintiff files a private lending lawsuit only on the basis of the transfer voucher of the financial institution, and the defendant defends that the transfer is to repay the previous loan or other debts of both parties, the defendant shall provide evidence to prove its claim." Article 73 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "If both parties adduce opposite evidence to the same fact, but there is no sufficient basis to deny the evidence of the other party, the people's court shall, in light of the circumstances of the case, judge whether the probative force of the evidence provided by one party is obviously greater than that of the evidence provided by the other party, and confirm the evidence with greater probative force." In this case, the proof of the evidence provided by the defendant Sun for the partnership between the two parties is not significantly greater than the proof of the evidence provided by the plaintiff Qi. The defendant Sun's defense claims have many doubts and are not supported.

2021-12-25

Viewpoint | Analysis of automatic turnover of workers

Employee turnover has become a prominent phenomenon, resulting in the plight of enterprise personnel management. After the employment dispute is sued, the court is also faced with the problem of vague qualitative and difficult fact-finding. In this paper, the author analyzes the situation and nature of the automatic turnover of employees in enterprises in the light of judicial practice, and puts forward the corresponding solutions. 1. the distinction between automatic separation and termination of the contract. According to the "Reply on the Handling of Unauthorized Resignation of Employees by Enterprises", automatic resignation means that the worker fails to perform the termination procedures when terminating the labor relationship, leaves the post without authorization, or leaves the unit without completing the termination procedures. For example, he left without permission because he resigned or asked to terminate the contract; or left without saying goodbye without explaining the reason; or "job-hopping" without authorization under the temptation of generous treatment. First of all, the automatic separation is different from the unilateral termination of the labor contract. Article 37 of my country's Labor Contract Law stipulates that under legal circumstances, workers have the right to terminate labor contracts with advance notice and immediate termination. The second paragraph of Article 38 stipulates that in the case where the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the laborer The labor contract can be terminated immediately without informing the employer in advance. In other words, except for the circumstances stipulated in the 38th of the Labor Contract Law, the laborer should inform the employer when exercising the right of advance notice and immediate termination. If the employee's automatic resignation does not meet the above-mentioned situation without prior notification to the employer and causes losses to the employer, he shall bear the corresponding liability for compensation in accordance with Article 90 of the Labor Contract Law. Secondly, automatic turnover is different from the employer to terminate the labor contract. As the worker resigns automatically, whether the labor relationship between the two parties is in a state of uncertainty, it is difficult for the employer to resign to determine the cause of the termination of the labor relationship, in practice, the employer often makes the decision to terminate the labor contract on the grounds of automatic resignation. Finally, automatic resignation is also different from the termination of the labor contract by consensus between the two parties. According to the provisions of Article 36 of the Labor Contract Law, the employer and the employee may terminate the labor contract by consensus. As an act of both parties, whether the laborer first proposes to terminate or the employer first proposes to terminate, as long as the other party agrees to reach an agreement, the labor contract can be terminated. Therefore, the first condition for the two parties to terminate the labor contract through consensus is the agreement between the laborer and the employer, and the automatic resignation of the laborer and the automatic resignation of the employer are not mutually agreed. Therefore, voluntary separation does not necessarily produce legal effects. In the case of non-compliance with the law, automatic resignation is the illegal termination of the labor contract by the laborer, and the employer can require the laborer to compensate for the loss based on the law. The decision of the employer to terminate the labor contract based on the fact of the worker is an act of unilateral termination of the labor contract by the employer. Identification and Treatment of 2. Automatic Turnover When the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the act of the laborer's automatic resignation is based on the labor contract law. According to the provisions of Article 8, paragraph 2, the labor relationship is terminated, and the employer may be required to pay economic compensation in accordance with Article 46 of the Labor Contract Law. When a worker leaves his job automatically, he does not propose to terminate the labor contract based on the circumstances stipulated in the first paragraph of Article 38 of the Labor Contract Law, and his automatic resignation shall be presumed to be resignation due to personal reasons. After the unilateral termination of the labor contract, the laborer's request for the employer to pay economic compensation cannot be supported. The most important dispute in the labor contract dispute is the dispute caused by the automatic resignation, that is, the employer unilaterally terminates the labor contract in accordance with the labor rules and regulations of the unit for the laborer who leaves the post without authorization and without justifiable reason. From the perspective of labor dispute handling practice, the main situations of automatic resignation are as follows: first, the laborer leaves without saying goodbye due to his own reasons, including physical quality, professional quality, communication ability, family changes, living environment and other factors; Second, the laborer's absenteeism reaches a certain period of time without reason, among which "absenteeism" refers to leaving the post without due leave formalities and without proper reasons; third, the laborers went abroad overdue. To deal with the above problems, attention should be paid to the following aspects: 1. Confirmation of the fact of automatic resignation To determine the automatic resignation of workers, three points should be grasped: first, the workers have the subjective will to leave the enterprise and are unwilling to return to the enterprise within the prescribed time limit; second, they have not fulfilled the relevant procedures or have not been approved by the enterprise although they have fulfilled the procedures; third, exceed the prescribed time limit. Article 6 of the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation" and Article 13 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases" both stipulate that the employer has made expulsion, removal, dismissal, and termination of labor contracts. If a labor dispute occurs due to decisions such as reducing labor remuneration and calculating the working years of the worker, the employer shall bear the burden of proof. As a manager, the employer is always in an active position, so the employer should bear the burden of proof for its claim of "voluntary resignation" of employees. For example, Article 14 of the (II) of Guiding Opinions on the Trial of Labor and Personnel Dispute Cases by the Higher People's Court of Jiangsu Province stipulates: "The laborer claims to be dismissed orally by the employer, while the employer claims that the laborer leaves the job automatically. The fact that the employee leaves the company automatically bears the burden of proof, and if the employer cannot prove it, it shall bear the adverse consequences." The employer may prove the fact that the worker has not provided labor without justifiable reasons by providing a complete attendance sheet. 2. Review of the legality of the termination of the labor contract by the employer If a worker leaves the post without permission and without proper reason without performing the leave formalities in accordance with the regulations, his behavior does not conform to the provisions of the law; according to the automatic resignation treatment, it is the act of the employer unilaterally terminating the labor contract in accordance with the labor rules and regulations of the unit. Therefore, to examine the legality of the employer's termination of the labor contract, it is also necessary to examine the legality of the rules and regulations on which the employer has made the basis for the termination of the labor contract, that is, whether it has been democratically formulated, whether it has been publicized or informed to the workers, whether the contents of the rules and regulations are legitimate, and whether the employer's decision to terminate the labor contract should be informed to the trade union and delivered to the workers. 3. Tilt to protect the rights and interests of workers and balance the interests of employers. The reason why the employer makes the decision to terminate the labor contract is the illegal behavior of the laborer. When dealing with such cases, it is not only necessary to strengthen the burden of proof of the employer and prevent the employer from illegally terminating the laborer who does not have the fact of automatic resignation, but also to consider the employer to terminate the labor contract in the case of the automatic resignation of the laborer, so as to prevent the expansion of enterprise losses and maintain the stability of employment. If the technical and management backbones needed for the production and operation of the enterprise "change jobs" without authorization regardless of the interests of the enterprise, this is not only treated as automatic resignation, but also investigated for compensation liability according to labor laws and regulations; if the enterprise has a large number of surplus employees in production, it is necessary to make more analysis when determining, focusing on whether the employees' failure to provide labor is justified. If a worker seriously violates labor discipline, the employing unit may terminate the labor contract in accordance with the provisions of paragraph 2 of Article 25 of the Labor Law. For example, Article 45 of the Opinions of the People's Court of Zhejiang Higher People's Court on Several Issues Concerning the Trial of Labor Dispute Cases stipulates that if the employee fails to go through the leave formalities without justifiable reasons and leaves the post without authorization for more than 15 consecutive days, the employer's rules and regulations shall be implemented in accordance with relevant regulations; if the employer's rules and regulations are not stipulated, the employer may terminate the labor contract on the grounds that the employee seriously violates labor discipline.

2021-12-25

Viewpoints... 10 of the most confusing legal issues in life insurance.

"Don't use probability thinking to explore risk, learn to use cost thinking to look at insurance; understand the basic legal function of insurance, have a sense of risk concern; consider whether your family finances can bear the cost if the risk occurs. Hedging the unaffordable cost (risk) with the affordable cost (premium) is the real meaning of insurance"-to encourage everyone. 1. Can we insure anyone with life insurance at will? You can't. Life insurance is insurance that takes the life and body of a person as the subject of insurance. The policyholder shall have an insurance interest in the insured at the time of the conclusion of the insurance contract. The insurance interest referred to here refers to the legally recognized interest of the insured's life and body. China's Insurance Law adopts the principle of combining interest doctrine and consent doctrine to determine whether the insured has an insurance interest in the insured. According to the provisions of the Insurance Law, the insured person can insure himself as the insured; he can also insure his spouse, children, parents, or other family members, close relatives who have a supporting, supporting or supporting relationship with him, or with him Workers with labor relations are insured. In addition, if the insured agrees that the insured shall enter into an insurance contract for his insurance, the insured shall also be deemed to have an insurance interest in the insured. The general principle is that when an insurance contract is concluded, if the insured does not have an insurance interest in the insured, the contract is invalid. -See Articles 12 and 31 of the Insurance Law. 2, after insurance, who can terminate the insurance contract? Policyholder. In general, after the establishment of an insurance contract, the policyholder may terminate the insurance contract, and the insurance company may not terminate the insurance contract at will, unless otherwise provided in the Insurance Law, or otherwise agreed in the insurance contract. However, when the insured terminates the insurance contract, the insured has the right to intervene. That is, in the event of inconsistency between the insured and the insured, the insured does not need the consent of the insured to terminate the insurance contract, but the insured may maintain the validity of the insurance contract by paying the insured an amount equivalent to the cash value of the insurance policy and notifying the insurance company. -See Article 15 of the Insurance Law and Article 17 of the Judicial Interpretation (III). 3, the policyholder did not fulfill the obligation to inform truthfully, whether the insurance company still bear the responsibility of compensation or payment of insurance benefits? Look at the time, look at the situation. When the insurance contract is concluded, if the insurance company makes an inquiry about the relevant situation of the insured, the policyholder shall inform it truthfully. China's Insurance Law adopts the mode of inquiry and notification, that is, the obligation of the policyholder to inform is limited to the scope and content of the insurance company's inquiry, and there is no need to inform the matters that the insurance company has not asked, and the important matters that can affect the insurance company's decision on whether to agree to underwrite or increase the insurance rate, rather than all the matters, which is conducive to safeguarding the interests of the policyholder, to prevent the insurance company from claiming the termination of the contract or refusing to bear the liability for the failure of the policyholder to fulfill the obligation of notification. According to the provisions of the Insurance Law, if the insured intentionally or due to gross negligence fails to perform the obligation of truthful disclosure, which is sufficient to affect the insurance company's decision whether to agree to underwrite or increase the insurance rate, the insurance company has the right to terminate the contract. However, the right of discharge shall be extinguished from the date on which the insurance company knows that there is a cause for discharge and shall not be exercised for more than 30 days. If the insurance contract has been established for more than two years at the time of the insurance accident, the insurance company shall not terminate the contract and shall be liable for compensation or payment of insurance benefits. If, at the time of the conclusion of the insurance contract, the insurance company already knows that the policyholder has not truthfully informed the situation, the insurance company shall not terminate the insurance contract. -See Article 16 of the Insurance Law and Articles 5 and 6 of the Judicial Interpretation (II). 4, life insurance contract how to determine the beneficiary? Appointed by policyholder or insured. The Insurance Law stipulates that the beneficiary is the person who has the right to claim insurance benefits designated by the insured or the insured in the life insurance contract. The insured or the insured may be the beneficiary. The appointment of the beneficiary by the insured shall be subject to the consent of the insured. If the insured is a person without civil capacity or a person with limited civil capacity, the beneficiary may be designated by his guardian. In addition, the insured or the insured may designate one or more persons as beneficiaries; if there are several beneficiaries, the insured or the insured may also determine the order and share of benefits. In addition, the insured or the insured may change the beneficiary and notify the insurance company in writing, but the insured must obtain the consent of the insured when changing the beneficiary. Under normal circumstances, the insured or the insured will designate the beneficiary as his spouse, children or parents, but sometimes it will also write "legal" or "legal heir". In this case, if the specific deceased beneficiary is not designated, it is impossible to avoid the payment of insurance money as the insured's estate to be distributed among the heirs again, so that the insurance itself has the exclusive benefit, seamless inheritance, rapid compensation, personal property attributes and other functions can not be realized. Therefore, it is recommended that you sort out your family's policies and adjust the beneficiaries appropriately. -See Articles 18, 39, 40, 41, 42 of the Insurance Law 5, the insured does not truthfully declare the age of the insured, can it? You can't. If the age of the insured declared by the insured is not true and his true age does not meet the age limit stipulated in the contract, the insurance company may terminate the contract and refund the cash value of the insurance policy in accordance with the contract. At the same time, the relevant provisions of Article 16 of the Insurance Law on the failure of the insured to perform the obligation of truthful notification cause the insurance company to exercise the right to terminate the contract. If the age of the insured declared by the policyholder is not true, resulting in the policyholder paying less or more than the premium payable, the insurance company may require the policyholder to pay or refund the premium, or pay the insurance premium in proportion to the premium paid (less) and the premium payable. -See Article 32 of the Insurance Act 6. Can parents insure multiple high-value life insurance contracts for their minor children on the condition of death? You can't. According to the provisions of the notice of the China Banking and Insurance Regulatory Commission, for the life insurance taken out by parents for their minor children, before the insured reaches adulthood, the total amount of insurance paid by the insured in each insurance contract and the actual payment by each insurance company at the time of the insured's death The total amount of insurance money shall be implemented according to the following limits: (1) For the insured under 10 years old, it shall not exceed 200000 yuan; (II) for the insured under 18 years old, no more than $500000. For example, the amount of aviation accident death insurance, the amount of accident death insurance for major natural disasters, as well as the insurance premium paid by the insured, the cash value of the contract at the time of the death of the insured, the value of the account, etc. are not calculated in the above limits. -See Articles 33 and 34 of the Insurance Act. 7, the insured committed suicide, intentional crime, the insurance company will not compensate? Look at the time, look at the situation. If the insured commits suicide within two years from the date of the establishment of the insurance contract or the restoration of the validity of the contract, the insurance company shall not bear the responsibility of paying the insurance premium, and the insurance company shall only refund the cash value of the insurance policy. However, after more than two years, if the insured commits suicide, the insurance company is liable for the payment of insurance benefits. If the insured commits suicide as a person with no capacity for civil conduct, the insurance company shall be liable for the payment of insurance benefits regardless of whether the establishment or restoration of validity of the insurance contract exceeds or is less than two years. If the insured intentionally commits a crime or resists the criminal coercive measures taken in accordance with the law, the insurance company shall not bear the responsibility of paying the insurance premium; if the insured has paid the insurance premium for more than two years, the insurance company shall refund the cash value of the insurance policy in accordance with the contract. -See Articles 44 and 45 of the Insurance Act. 8. If the insurance company pays compensation to the insured due to the actions of a third party, does the insured or beneficiary still have the right to claim compensation from the third party? The right to claim compensation. According to the provisions of the Insurance Law, if the insured has an insurance accident such as death, disability or illness due to the behavior of a third party, the insurance company shall not have the right to recover from the third party after paying the insurance money to the insured or beneficiary, but the insured or beneficiary shall still have the right to claim compensation from the third party. -See Article 46 of the Insurance Act. 9, the policyholder has paid the insurance policy and insurance premium, the insurance company has not yet issued the policy, at this time the insurance accident, the insurance company will not compensate? should be compensated. If the underwriting conditions are met, the insurance company shall bear the insurance liability; if the underwriting conditions are not met, the insurance company shall not bear the insurance liability, but shall refund the insurance premiums already collected. If the insurance company claims that it does not meet the underwriting conditions, it shall bear the burden of proof. -- See Article 4 of the Judicial Interpretation (II) of the Insurance Law. 10, life insurance company bankruptcy, our life insurance contract? Other life insurance companies took over. The life insurance business operated by insurance companies includes life insurance, health insurance, accident insurance and other insurance businesses. An insurance company engaged in life insurance business shall not be dissolved except as a result of division, merger or dissolution according to law. If an insurance company engaged in life insurance business is revoked or declared bankrupt according to law, the life insurance contract and liability reserve held by it must be transferred to other insurance companies engaged in life insurance business; if a transfer agreement cannot be reached with other insurance companies, the insurance company engaged in life insurance business shall be designated by the Bancassurance Regulatory Commission to accept the transfer. -See Articles 89, 92, 95 of the Insurance Act.

2021-12-25

Viewpoint... Basic issues of state-owned regulatory compliance.

国资监管合规具有很强的实践性，研究国资监管合规首先需要厘清国资监管机构的发展，从历史和发展的角度把握合规体系；需要以合规的概念刨析国资监管合规的具体内涵，明确我们建设怎样的合规体系；还需要从更深层次把握国资监管合规的意义，解决为什么要合规的问题；更需要掌握合规之“规”，为行为提供指引，所有这些都是国资监管合规的基本问题，这是我们企业合规体系建设的基石，有助于我们从更深层次理解和把握国资监管合规的精神实质，是我们国资监管合规体系建设的第一步，本文以上述基本问题为出发点，对上述问题作基本阐释，以期能对读者理解国资监管合规有所裨益。   一、从国资监管体系的建立与发展   （一）国资监管机构的变革：由国家国有资产管理局到国资委和财政二元监管模式   1、财政部管理的国家局：国家国有资产管理局(副部级)。1988年3月，经全国人大七届一次会议批准，国务院机构改革中唯一新增设的政府部门——国家国有资产管理局。这是建国后中国第一个专职从事国有资产管理的政府职能机构。1994年2月25日，国务院办公厅印发《财政部和国家国有资产管理局职能配置、内设机构和人员编制方案》，国家国有资产管理局为财政部管理的国家局(副部级)。   2、国务院国资委成立及二元监管模式的形成。2003年4月25日，国务院办公厅印发《国务院国有资产监督管理委员会主要职责内设机构和人员编制规定》，划入财政部有关国有资产管理的部分职责。国务院授权国有资产监督管理委员会代表国家履行出资人职责，监管范围是中央所属企业（不含金融类企业）的国有资产。对于其他未划入国资委的职责仍由财政部行使。从此，国资监管进入国资、财政二元监管时代。   2019年11月7日，国务院办公厅印发《国有金融资本出资人职责暂行规定的通知》，各级财政部门根据本级政府授权，集中统一履行国有金融资本出资人职责。   （二）国资监管机构权利来源及类型   1、国资监管权利来源于本级政府授权，具有很强的地域性。   （1）国务院和地方人民政府代表国家履行出资人职责。根据《中华人民共和国企业国有资产法》第四条规定，国务院和地方人民政府依照法律、行政法规的规定，分别代表国家对国家出资企业履行出资人职责，享有出资人权益。   （2）国有资产监督管理机构根据授权履行出资人职责。根据《企业国有资产监督管理暂行条例》第六条规定，国务院，省、自治区、直辖市人民政府，设区的市、自治州级人民政府，分别设立国有资产监督管理机构。国有资产监督管理机构根据授权，依法履行出资人职责，依法对企业国有资产进行监督管理。   2、国资监管机构类型   （1）国有资产监督管理委员会。根据《国有企业资产法》第十一条之规定，国有资产管理机构根据本级人民政府授权，代表本级人民政府对国家出资企业履行出资人职责。《企业国有资产监督管理暂行条例》第六条、第十二条规定，国有资产监督管理机构根据授权，依法履行出资人职责，依法对企业国有资产进行监督管理。国务院国有资产监督管理机构是代表国务院履行出资人职责、负责监督管理企业国有资产的直属特设机构。省、自治区、直辖市人民政府国有资产监督管理机构，设区的市、自治州级人民政府国有资产监督管理机构是代表本级政府履行出资人职责、负责监督管理企业国有资产的直属特设机构。   上级政府国有资产监督管理机构依法对下级政府的国有资产监督管理工作进行指导和监督。   （2）财政部门。根据《国有企业资产法》第十一条之规定，国务院和地方人民政府根据需要，可以授权其他部门、机构代表本级人民政府对国家出资企业履行出资人职责。实践中，财政部门监管的国有企业主要有金融资本、行政事业单位出资企业、文化企业。   根据《国有金融资本出资人职责暂行规定的通知》，各级财政部门根据本级政府授权，集中统一履行国有金融资本出资人职责。财政部门是行政事业资产的监督和管理机构，行政事业单位出资设立企业一般应由财政部门履行出资人监管职责。基于特定行业监管需要，文化企业通常也为财政部门履行出资人职责。   除此之外，部门地区国有资产较少，没有单独设立国有资产监督管理机构的，通常也由财政部门履行出资人职责。   二、从合规概念看国资监管合规   （一）合规概念   根据《中央企业合规管理指引（试行）》第二条规定，合规是指企业及其员工的经营管理行为符合法律法规、监管规定、行业准则和企业章程、规章制度以及国际条约、规则等要求。   由此可见，企业合规是以企业及员工的行为为载体，以法律法规、监管规定、行业准则、企业章程、规章制度，国际条约、规则为准绳，系规范行为以符合规定的动态过程。   （二）合规的类型   1、具体合规与全面合规。根据合规的所涉及的领域不同，企业合规可以划分为具体合规与全面合规。   具体合规，顾名思义，系企业某一业务领域的合规，包含合同管理合规、安全生产合规、企业投资行为合规、企业资产交易合规、企业财务合规、企业采购合规等各个企业业务领域。   全面合规，系将合规要求覆盖各业务领域、各部门、各级子企业和分支机构、全体员工，贯穿决策、执行、监督全流程；合规管理与法律风险防范、监察、审计、内控、风险管理等工作相统筹、相衔接，确保合规管理体系有效运行。   2、程序合规与实体合规。根据合规所符合的规范性质，企业合规可分为程序合规和实体合规。   程序合规，即企业和员工的行为符合规定中的程序性事项，比如说，在公司治理合规中，某项董事会决议事项是否按照董事会议事规则开展，是否按照章程规定履行党委会前置程序；在资产交易中，是否按照规定履行审计和评估程序等，都属于程序合规研究范畴。   实体合规，即企业和员工的行为符合规定中的实体内容，比如说，在公司治理合规中，董事会成员履行董事职责是否符合公司章程规定，是否勤勉尽责；在企业投资合规中，投资项目是否具有可行性等，都属于实体合规范畴。   （三）国资监管合规   国资监管合规，指国有企业全面合规重要组成部分，涉及企业公司治理、资产交易、企业投资、财务管理等主要领域，程序合规与实体合规并重，系指企业及其员工的经营管理行为符合法律规定、国资监管规定、企业章程、规章制度规定。   三、企业合规的意义   （一）积极意义：合规对于企业发展的积极作用   为推进法治国企建设，国务院国资委、山东省国资委等地方国资委相继印发《关于全面推进法治央企建设的意见》、《山东省国资委关于全面推进法治国企建设的意见》（鲁国资企改〔2015〕1号）等法治企业建设意见，充分阐释了法治企业即合规建设意义。   1、合规是依法治企需要，是国资监管部门对国企的基本要求。   随着依法治国的全面推进，国家保障公平竞争的法律规范将更加完备，政府职能转变、简政放权的深度广度将进一步加大，司法公信力将明显提高，全民法治观念将逐步增强。法治环境的新变化为国有企业做优做强提供了强大推动力，同时也对国有企业平等适用法律、公平参与竞争、依法合规管理提出了新的要求。建设“合规国企”有利于国有企业作表率、树形象，与各种所有制企业共同维护市场秩序和竞争环境。   2、合规企业软实力，有利提升企业竞争力，是企业实现稳健发展的必由之路。   近年来，国有企业资产规模不断扩大，但经济效益却没有同步增长，有的还遭遇较大风险。国内外大企业的经验教训表明，企业越大风险越多，可持续发展的要求越高，经营管理也越来越依赖法治。在我国经济发展新常态下，国有企业转调创改的任务重，提质增效的压力大，平衡短期效益与长期发展更加困难。只有祭起合规大旗，企业才能进一步规范经营管理，不断增强竞争力。   3、合规有利于防范企业潜在风险，降低风险、减少损失也是企业效益。   以法商融合、创造价值为核心，在扎实做好法律纠纷案件管理、合同管理、工商管理的同时，进一步拓宽法律风险防范领域，结合国有资本投资运营、完善公司治理机制、发展混合所有制经济等重点改革任务，严格法律审核，加强产权保护。在企业转型升级、创新驱动和国际化经营中，平衡风险与商机的关系，促进企业提质增效。建立统一的法律信息系统，运用信息化手段将法律风险防范嵌入到企业经营管理流程中并成为刚性约束。充分运用诉讼、仲裁等法律手段维护企业的合法权益，防止国有资产流失。   4、合规有利于规范员工行为，尽职免责，防范高管决策风险，促进企业健康发展。   合规建设是深化国资国企改革、建立现代企业制度的内在要求。未来几年，改建国有资本投资运营公司、健全国有资本投资运营体系，引入社会资本参与国有企业改革、发展混合所有制经济，健全公司法人治理结构、推行职业经理人制度等，必然带来相关利益的调整和法律关系的重构，工作的艰巨性和复杂性前所未有。改革越是艰巨复杂，就越要依法合规、坚守法律底线，杜绝违规操作，防止国有资产流失。只有全面提升依法治企能力，才能顺利完成各项改革任务，有效避免重大失误。   （二）消极意义：如不合规，将承担相应不利法律后果   1、不合规的民事责任风险。企业及企业员工因违规行为给他人造成损害的，应依法承担相应的民事责任。根据《民法典》第一千一百六十五条、一千一百六十六条之规定，行为人因过错侵害他人民事权益造成损害的,应当承担侵权责任。行为人造成他人民事权益损害,不论行为人有无过错,法律规定应当承担侵权责任的,依照其规定。   根据《公司法》第一百四十七条、一百四十九条之规定规定，董事、监事、高级管理人员应当遵守法律、行政法规和公司章程，对公司负有忠实义务和勤勉义务。董事、监事、高级管理人员执行公司职务时违反法律、行政法规或者公司章程的规定，给公司造成损失的，应当承担赔偿责任。   《企业国有资产法》第七十一条规定，国家出资企业的董事、监事、高级管理人员有“在企业改制、财产转让等过程中，违反法律、行政法规和公平交易规则，将企业财产低价转让、低价折股的”、“不如实向资产评估机构、会计师事务所提供有关情况和资料，或者与资产评估机构、会计师事务所串通出具虚假资产评估报告、审计报告的”、“违反法律、行政法规和企业章程规定的决策程序，决定企业重大事项的”、“其他违反法律、行政法规和企业章程执行职务行为的”等法定行为，造成国有资产损失的，依法承担赔偿责任。   2、不合规的行政责任风险。企业及企业员工违规行为违反有关行政监管规定，行政机关有权根据《行政处罚法》的规定对企业行政处罚。根据《行政处罚法》第三条之规定，公民、法人或者其他组织违反行政管理秩序的行为，应当给予行政处罚的，依照行政处罚法由法律、法规或者规章规定，并由行政机关依照行政处罚法规定的程序实施。   3、不合规的行政处分风险。《企业国有资产法》、《企业国有资产监督管理暂行条例》、《企业国有资产交易监督管理办法》等法律法规规章专章对违反监管规定的法律责任作出系统规定。此外，为加强和规范违规经营投资工作，国务院办公厅印发《关于建立国有企业违规经营投资责任追究制度的意见》，国务院国资委、各省国资委也相继出台企业违规经营投资责任追究实施办法，对违规经营投资责任作出规定。   根据上述规定，国有企业不合规行政处分类型主要有免职、警告，根据资产损失程度、问题性质等，对相关责任人采取组织处理、扣减薪酬、禁入限制、纪律处分、移送司法机关等方式处理。其中，组织处理。包括批评教育、责令书面检查、通报批评、诫勉、停职、调离工作岗位、降职、改任非领导职务、责令辞职、免职等。扣减薪酬。扣减和追索绩效年薪或任期激励收入，终止或收回中长期激励收益，取消参加中长期激励资格等。禁入限制。五年内直至终身不得担任国有企业董事、监事、高级管理人员。纪律处分。由相应的纪检监察机关依法依规查处。移送司法机关处理。依据国家有关法律规定，移送司法机关依法查处。以上处理方式可以单独使用，也可以合并使用。

2021-12-25