Viewpoint | Interpretation of the Notice on Regulating the Transfer of Assets of State-owned Financial Institutions

On December 7, the Ministry of Finance issued the "Notice on Regulating Matters Related to the Transfer of Assets of State-owned Financial Institutions" (referred to as "Caijin [2021] No. 102") to improve the transparency of the transfer of assets of state-owned financial institutions and regulate related assets Transaction behavior to safeguard the rights and interests of state-owned financial capital investors. This Notice is one of the supporting documents to implement the role of state-owned financial capital investors of the Ministry of Finance. 1. file overall architecture Caijin [2021] No. 102 "Notice" is mainly divided into three parts in terms of content structure. The first part is the guiding ideology and general tone throughout the full text of this document, that is, "in accordance with laws and regulations, adhere to the principles of equal compensation, openness, fairness and justice, and strictly prevent the loss of state-owned assets". The second part is the specific practical control of each link of the asset transfer of state-owned financial institutions, that is, "refine the application of the law, standardize the transfer method, reasonably determine the price, clarify the transaction process, etc". It reiterated the relevant provisions on all aspects of the procedures for the transfer of state-owned financial assets previously formulated by the Ministry of Finance. The third part is "information disclosure and regulatory improvement, the implementation of the main responsibility". It is emphasized that financial departments at all levels should strengthen the supervision and management of the transfer of assets of state-owned financial institutions at the same level and territorial central state-owned financial institutions. If it is found that the transferor has not implemented or violated relevant regulations or infringed on state-owned rights and interests, the transferor shall be required to immediately suspend or terminate the transfer of assets and report to the higher-level financial department. The three parts include the transfer principle, transfer method, transfer procedure, transfer price determination and transfer responsibility of financial state-owned assets, and put forward clear policy boundaries. Interpretation of 2. key content (I) Scope and Principles Caijin [2021] No. 102 "Notice" clearly summarizes the basic concept of the main body of state-owned financial institutions as wholly state-owned, wholly state-owned, state-controlled and actually controlled financial institutions (including their branches and subsidiaries at all levels with actual control). The transfer of assets of state-owned financial institutions should strictly abide by national laws, regulations and policies, give full play to the role of the market in allocating resources, and follow the principles of equal compensation, openness, fairness and justice. Where matters of government public administration are involved, the relevant examination and approval procedures shall be carried out in accordance with the provisions of the State. Ensure transparency in the transfer of assets, put an end to black-box operations, and strictly prevent the loss of state-owned assets. This is also the guiding ideology and general tone that runs through the full text. (II) Refine the application of the law according to the classification of assets. 1. The transfer of asset types to which the Measures for the Administration of the Transfer of State-owned Assets of Financial Enterprises (Order No. 54 of the Ministry of Finance) apply: first, the transfer of equity assets by state-owned financial institutions. The second is the transfer of financial assets, such as trust plans, asset management products and fund shares, where all the underlying assets are equity assets and enjoy floating income, unless otherwise stipulated by the state. At present, the supervision and management mode of state-owned assets in China is a two-line management mode in which the SASAC and the Ministry of Finance respectively supervise the enterprises and asset types they are responsible. The transfer of state-owned assets of financial enterprises shall be governed by the relevant provisions promulgated by the Ministry of Finance. This provision strengthens the supervision of equity assets, expands the scope of supervision involving the underlying assets, which are all equity assets, and provides a traceable reference scheme for their transfer. For the disposal, acquisition and management procedures of equity asset transfer, higher requirements are put forward for the professionalism and risk awareness of practitioners. 2. The transfer of asset types applicable to the Notice No. 102 of Caijin [2021]: First, the transfer of non-equity assets such as real estate, machinery and equipment, intellectual property rights, and related financial assets shall be subject to the provisions of the industry regulatory authorities. Second, the transfer of the underlying assets outside the country. Third, the normal conduct of business involves the transfer of assets, disposal of scrapped assets, judicial auctions, government expropriation of assets and so on. In addition, the transfer of financial institutions supported by state power and credit, which are included in the management of state-owned financial capital, shall be subject to the provisions of Circular No. 102. (III) implementation of the main responsibility Article 2 of the "Notice" of Caijin [2021] No. 102 proposes that the transfer of major assets should strictly implement the "three important and one large" decision-making system and follow the principle of "unified policies and hierarchical management", aiming to eliminate black-box operations and prevent state-owned assets Loss. The issue of clearly implementing the main responsibilities of all parties has long been found in China's state-owned financial capital supervision system. In the 2018 "Guiding Opinions of the Central Committee of the Communist Party of China and the State Council on Improving the Management of State-owned Financial Capital" (hereinafter referred to as the "Guiding Opinions"), it is clearly pointed out that "the current state-owned financial capital management still has scattered responsibilities, unclear powers and responsibilities, unclear authorization, The layout is not good, and the allocation efficiency needs to be improved, and the construction of the rule of law is not in place, clear the legal status of the funder, the realization of the right by the law, the power and responsibility of the statutory. Institutions that perform the duties of state-owned financial capital investors exercise relevant rights in accordance with the law, and assume management responsibilities in accordance with the principle of matching rights and responsibilities and equal rights and responsibilities." Then, in November 2019, the General Office of the State Council issued the Interim Provisions on the Responsibilities of State-owned Financial Capital Investors. On the basis of the Guiding Opinions, this provision further emphasizes the provisions of the Ministry of Finance at all levels to perform the responsibilities of investors. The structure paves the way for this asset transfer, and it also means that the distribution of powers and responsibilities will be implemented. It can be seen that to prevent the loss of state-owned assets, the implementation of the main responsibility, to put an end to black-box operations need to be down-to-earth, according to the map and a long way to go. (IV) transfer method Caijin [2021] No. 102 "Notice" stipulates that unless otherwise stipulated by the state, state-owned financial institutions shall not transfer assets to non-state-owned transferees by direct agreement without public bidding procedures. After the state-owned financial institutions have deliberated and decided in accordance with the authorization mechanism, they can transfer by direct agreement. With regard to the transfer of on-market agreements, article 22 of Decree No. 54 of the Ministry of Finance states that "when only one qualified intended transferee is produced through public solicitation by the property rights trading institution, the transfer of property rights may be carried out by means of on-market agreement transfer, but the transfer price shall not be lower than the listed price. In the case of an on-market agreement transfer, the transferor shall conduct full consultation with the transferee and sign an agreement on the transfer of property rights (contract, the same below) after properly handling the relevant matters involved in the transfer in accordance with the law." In the past, the transfer of state-owned assets will be restricted, and it will no longer be easy to trade directly through the transfer of state-owned assets. in addition, article 35 of decree no. 54 of the ministry of finance specifies three situations in which, with the approval of the state council or the financial department, the transferor may transfer state-owned property rights of unlisted enterprises and state-owned shares of listed companies by direct agreement, this "Notice" adds "the transfer of assets within the group, the withdrawal of performance in accordance with the investment agreement or the terms of the contract, the third party in accordance with the contract to exercise the preemptive right, the transfer of assets in specific industries to state-owned and state-controlled enterprises, and the financial department at the same level For other circumstances approved, after the state-owned financial institution deliberates and decides in accordance with the authorization mechanism, it can be traded by direct agreement. The above-mentioned special assets can be transferred by agreement in accordance with the law and the approval procedures, which is conducive to improving the efficiency of asset disposal, reducing costs, and ensuring the orderly transfer of state-owned financial assets. (V) recognition of the transfer consideration According to the Interim Measures for the Supervision and Administration of State-owned Assets Evaluation of Financial Enterprises (Order No. 47 of the Ministry of Finance), financial enterprises need to entrust asset evaluation institutions to conduct asset evaluation when transferring assets. Caijin [2021] No. 102 "Notice" stipulates the circumstances under which pre-evaluation can be exempted, including asset transactions with clear fair market value, asset transactions with low transfer target value (single asset value is less than 1 million yuan), asset transactions between wholly state-owned and wholly-owned financial institutions, and asset transactions between state-owned financial institutions and wholly-owned subsidiaries, as well as asset transactions between the holding subsidiaries of state-owned financial institutions that will not cause changes in the state-owned rights and interests owned by state-owned financial institutions, and that will not cause the loss of state-owned assets after being demonstrated by state-owned financial institutions or third-party intermediaries, it may not be evaluated after fulfilling the decision-making procedures in accordance with the law. Asset transactions with a clear market fair value may determine the transfer floor price by reference to the fair market value, and other asset transactions may determine the transfer floor price by reference to the fair market value, audited book value, etc. The regulation improves the efficiency of the disposal of state-owned assets, reduces costs and optimizes the allocation of capital. (VI) clarify the transaction process and price payment 1. Transaction Process Notice No. 102 provides for different methods of public trading, including entry trading, public auctions, online auctions and competitive negotiations. Among them, the "Notice" does not make a clear definition of competitive negotiation. The "Administrative Measures for Non-Bidding Procurement Methods of Government Procurement" (No. 74) promulgated by the Ministry of Finance has detailed management regulations on competitive negotiation: Competitive negotiation refers to "negotiation team negotiates with qualified suppliers on procurement of goods, projects and services, and suppliers submit response documents and final quotations according to the requirements of negotiation documents, the purchaser determines the procurement method of the closing supplier from among the closing candidates proposed by the negotiating team". The "Government Procurement Law" stipulates that competitive negotiations require the establishment of a negotiation team. The negotiation team is composed of an odd number of more than three representatives of the purchaser and relevant experts. The number of experts shall not be less than 2/3 of the total number of members. Correspondingly, Notice No. 102 stipulates that if competitive negotiation is adopted, more than three people should participate in the bidding; if other methods are adopted, the state has relevant regulations to implement them in accordance with relevant regulations, and there should be at least two people. The above participates in the bidding. When there is only one person bidding, an announcement must be made in accordance with the announcement procedure, and the announcement will be made 7 working days later, if it is determined that there is no new bidder to participate in the bidding to close the deal. Article 19 of the Notice of the Ministry of Finance on Issuing the Measures for the Administration of Asset Disposal of Financial Asset Management Companies (Revision) (2008) "In principle, asset companies shall transfer assets through public bidding, including but not limited to bidding, auction, invitation to offer, public bidding, public inquiry, etc. ...... At least two or more persons shall participate in the bidding when disposing in the form of invitation to offer, public inquiry, etc", from the above, the two documents have different provisions on the number of participants in the bidding, because this notice is a normative document, it is recommended to take No. 74 as the standard. 2. Payment of the transfer price Caijin [2021] No. 102 "Notice" further refines the installment payment regulations, which is conducive to improving the risk prevention and control capabilities of state-owned financial institutions and improving the investment environment of the current non-performing asset market. According to Article 52 of the "Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises" (hereinafter referred to as Order 32): "In principle, the asset transfer price is paid in one lump sum." Previously, in the process of disposal of state-owned financial assets, there was the phenomenon of installment payment, but when the two parties reached an agreement on the post-installment payment was unclear, and there was no normative document to clearly refine the constraints, the proportion of installment payment was not fixed, a few transfers would agree on liquidated damages for special circumstances, and no limited guarantee was provided. The notice not only stipulates the amount of installment transfer and the first proportion of installment, but also requires that installment payment needs to provide legal and effective guarantee and defines the delivery terms, which makes the business negotiations involving assets of state-owned financial institutions have laws to follow. This is conducive to strengthening the risk control and compliance management of the disposal market of state-owned financial assets, and further reducing the risk of differentiation. The disadvantage of this move is that it increases the burden on buyers, and the state-owned financial asset disposal environment where the fittest survives stimulates the polarization of small and medium-sized enterprises and powerful enterprises. (VII) improve information disclosure and supervision and inspection 1. Information disclosure Caijin [2021] No. 102 "Notice" continues the limit of Article 50 of Decree No. 32 on the information announcement period for asset transfer. Notice No. 102 stipulates that the information announcement period for asset transfer projects with a reserve price of 1 million yuan -10 million yuan shall not be less than 10 working days, and that for asset transfer projects higher than 10 million yuan shall not be less than 20 working days. However, it is different from the provisions of Article 9 of the Administrative Measures for the Administration of Asset Disposal Announcements of Financial Asset Management Companies (Revision) (2008) (hereinafter referred to as "Notice No. 87") on the period of announcement. There is competition and cooperation between the two regulations on the announcement period. Considering that both of them are normative documents formulated by the Ministry of Finance, and the principles of new and old laws and regulations, the "Notice" No. 102 shall prevail. Compared with the original "Notice" No. 87, the new regulations extend the announcement period, which fully guarantees information disclosure and supervision, and is conducive to the stability of the asset transfer market of state-owned financial institutions. However, this also extends the disposal time of asset transfer, which has a certain impact on the efficiency of asset disposal. 2. Strengthen supervision and inspection Article 7 of the "Notice" No. 102 emphasizes the supervision system. "If the relevant personnel of financial departments and state-owned financial institutions at all levels violate laws, administrative regulations and the provisions of this notice, make decisions beyond their powers, neglect their duties, or use power for personal gain, resulting in the loss of state-owned assets, they shall be liable for compensation in accordance with laws and regulations, and shall be punished by the relevant departments in accordance with the management authority of personnel and cadres; if a crime, Transfer to judicial organs." This provision continues the spirit of the provisions in Article 59 of Decree No. 32 on the situation that the relevant responsible personnel should bear the responsibility. In this provision, the Ministry of Finance emphasizes that the loss of financial state-owned assets should be linked to the personal interests of the responsible person. The responsibility of the financial enterprise and the regulatory agency of financial state-owned assets, that is, the financial department itself, is also summarized in it, so as to realize the responsibility to the person and the responsibility in place. On this basis, state-owned financial institutions need to conduct regular internal audits on the asset transfer of their branches and sub-enterprises at all levels, and report the asset transfer of the previous year to the financial department at the same level before May 20 each year. If there is any violation of laws and regulations, it shall be transferred to the judicial organ for handling according to law. Improve the efficiency of the protection of state-owned assets, can effectively prevent the loss of state-owned assets. Caijin [2021] No. 102 "Notice" is one of the supporting documents to implement the role of state-owned financial capital investors of the Ministry of Finance. It further clarifies the practical details of the implementation of the asset transfer policy of state-owned financial institutions in the early stage, which is important for ensuring the orderly circulation of state-owned assets. Strictly preventing the loss of state-owned assets has far-reaching guiding significance.

2021-12-25

Viewpoint... Can the defendant apply for additional defendants in civil litigation?

1. Foreword Adding a defendant refers to the act of adding a relevant natural person, legal person or other organization as a defendant in a civil lawsuit upon the application of the parties to the case or the people's court ex officio. Regarding "whether the defendant can apply for additional defendants", there are different opinions in the field of procedural law and the practice of civil litigation trial. Part of the view that "the defendant can not apply for additional defendants", the main reason is that the basic principle of civil procedure law is not to sue, the plaintiff has the right to sue the defendant, apply for additional defendants, in the case of the plaintiff did not apply for additional defendants, the defendant has no right to apply for additional defendants. Another part of the view that "in a necessary joint action, the defendant has the right to apply for additional defendants", the main reason is that according to the current civil procedure law interpretation, in a necessary joint action, the parties have the right to add a necessary joint litigant to participate in the proceedings. Then, the "defendant" as a party to the case, that is, the right to apply for additional defendants, submitted to the court for review. This paper mainly discusses the problem of adding defendants in necessary joint litigation. 2. legal basis for additional parties According to Article 132 of the the People's Republic of China Civil Procedure Law and the Supreme People's Court on the Application<中华人民共和国民事诉讼法>The parties may add necessary co-litigants to participate in the proceedings. The parties include the "defendant". Therefore, according to the current law, in the necessary joint litigation, the defendant can apply for additional necessary joint litigants to litigate and submit them to the court for review. Specific provisions: 1. the People's Republic of China Civil Procedure Law Article 132 If a party who must jointly conduct a lawsuit fails to participate in the lawsuit, the people's court shall notify him to participate in the lawsuit. 2, the Supreme People's Court on the application.<中华人民共和国民事诉讼法>the explanation." Article 73 If a party who must jointly conduct a lawsuit does not participate in the lawsuit, the people's court shall notify him to participate in accordance with the provisions of Article 132 of the Civil Procedure Law; the party may also apply to the people's court for additional. The people's court shall examine the application filed by the parties, and if the reasons for the application are not tenable, it shall rule to reject it; if the reasons for the application are tenable, it shall notify the additional parties in writing to participate in the proceedings. Practical Views in the Trial of 3. Litigation After reviewing the relevant cases, there are different views on whether the defendant can apply for additional defendants in the practical trial. The court examines the "defendant's application for additional defendants" and mainly examines the following three conditions: 1. Whether the additional defendant is a party who must jointly conduct the lawsuit; 2. Whether the plaintiff agrees to the addition; 3, whether to apply for additional within the prescribed time limit. (Regarding the time limit for adding defendants, the law does not specify it. In trial practice, it is generally conducted before the end of the court debate in the first instance procedure.) 4. legal provisions on necessary joint action 1. the People's Republic of China Civil Procedure Law Article 52: If one party or both parties are two or more, the subject matter of the action is common (necessary joint action), or the subject matter of the action is the same type, and the people's court considers that it can be tried together with the consent of the parties (ordinary joint action), it is a joint action. If one of the parties to a joint action has common rights and obligations with respect to the subject matter of the action, the action of one of them shall be recognized by the other joint litigants and shall be effective against the other joint litigants; if there is no common rights and obligations with respect to the subject matter of the action, the action of one of them shall not be effective against the other joint litigants. 2, the Supreme People's Court on the application.<中华人民共和国民事诉讼法>the explanation." Articles 54, 58 to 60, 63, 65 to 67, 70 to 72, 74 and 76 of the judicial interpretation of the civil procedure law stipulate that some litigants must proceed in the form of joint litigation. In addition, articles 307 and 308 of the enforcement objection also stipulate joint litigation. Article 73 stipulates that if a party who must jointly conduct a lawsuit does not participate in the lawsuit, the court shall notify him to participate. Article 42 makes it clear that "if a party who must jointly conduct a lawsuit does not participate in the lawsuit because he or she cannot be attributed to him or his agent ad litem", he may apply for a retrial. Combined with Article 124, after the objection to the execution of the outsider is rejected, provisions are also made to allow a retrial as long as the person outside the case is a party to the necessary proceedings. It can be seen that the judicial interpretation of the Civil Procedure Law, on the basis of Article 132 of the Civil Procedure Law, clarifies the legal consequences of necessary joint litigation, emphasizing that in the trial of necessary joint litigation cases, all joint litigants must participate in the litigation, otherwise it may lead to the initiation of a retrial. 5. of the circumstances under existing law that should be included as a co-defendant or additional co-defendant (I) the Supreme People's Court on the application of<中华人民共和国民事诉讼法>the explanation." Article 54 Where a party engages in civil activities in the form of affiliation, and the party concerned requests that the affiliation and the person to be attached shall bear civil liability in accordance with the law, the affiliation and the person to be attached shall be co-litigants. Article 58 During the period of labor dispatch, if the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall be the party concerned. If the parties claim that the labor dispatch unit shall bear the responsibility, the labor dispatch unit shall be the co-defendant. Article 59 If the business operators registered in the second paragraph (individual industrial and commercial households) business license are inconsistent with the actual business operators, the registered business operators and the actual business operators shall be the joint litigants. Article 60 In a lawsuit, all the partners of an individual partnership who have not registered and obtained a business license in accordance with the law shall be joint litigants. Article 63 In the case of a division of an enterprise as a legal person, the enterprise after the division shall be the joint litigant in any dispute arising from civil activities prior to the division. Article 65 Where a business introduction letter, special seal for contract, sealed blank contract or bank account is borrowed, the lending unit and the borrower shall be joint litigants. Article 66 If the creditor claims its rights against both the guarantor and the guarantor in a lawsuit brought as a result of a guarantee contract dispute, the people's court shall list the guarantor and the guarantor as co-defendants. If the contract of guarantee is a general guarantee and the creditor sues only the guarantor, the people's court shall notify the guarantor to participate in the proceedings as a co-defendant; if the creditor sues only the guarantor, it may list only the guarantor as the defendant. Article 67 If a person with no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to another person, the person with no capacity for civil conduct, the person with limited capacity for civil conduct and his guardian shall be co-defendants. Article 70 In a lawsuit for inheritance, if some of the heirs sue, the people's court shall notify the other heirs to participate in the lawsuit as co-plaintiffs, and if the notified heirs are unwilling to participate in the lawsuit and have not expressly waived their substantive rights, the people's court shall still list them as co-plaintiffs. Article 71 If the plaintiff sues the agent and the agent and claims to bear joint and several liability, the agent and the agent shall be co-defendants. If the plaintiff sues the agent and the counterparty and claims joint and several liability, the agent and the counterparty are co-defendants. Article 72 If the common property right is infringed by another person and some of the co-owners sue, the other co-owners shall be joint litigants. Article 287 After the people's court accepts a public interest litigation case, other organs and relevant organizations that may initiate litigation according to law may apply to the people's court for participation in the litigation before the court session. If the people's court permits to participate in the proceedings, it shall be listed as a joint plaintiff. (II) (I) of Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases Article 27 If an employing unit employs a worker whose labor contract has not yet been terminated, the original employing unit may list the new employing unit as a third party in a labor dispute with the worker. If the original employing unit brings a lawsuit on the grounds of infringement by the new employing unit, the laborer may be listed as a third party. If the original employer files a lawsuit on the grounds of joint infringement by the new employer and the worker, the new employer and the worker shall be listed as co-defendants. (III) Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents Article 22 When hearing a case of compensation for damages in a road traffic accident, the people's court shall list the insurance company that underwrites the compulsory traffic insurance as a co-defendant. However, the insurance company has already paid compensation within the scope of the compulsory insurance liability limit and the parties have no objection. If the people's court hears a case of compensation for damages in a road traffic accident, and the parties request that the insurance company that underwrites commercial triple insurance be listed as a co-defendant, the people's court shall grant permission. the People's Republic of China Civil Code of (IV) Article 168 Where two or more persons jointly commit a tort and cause damage to others, they shall be jointly and severally liable. Article 1,169 Whoever instigates or helps another person to commit a tort shall be jointly and severally liable with the perpetrator. Whoever instigates or helps a person with no capacity for civil conduct or a person with limited capacity for civil conduct to commit a tort shall bear tort liability; if the guardian of the person with no capacity for civil conduct or a person with limited capacity for civil conduct fails to perform his duty of guardianship, he shall bear corresponding liability. Article 170 Where two or more persons commit acts endangering the personal or property safety of others, and the acts of one or more of them cause damage to others, and the specific infringer can be identified, the infringer shall bear the responsibility; if the specific infringer cannot be identified, the perpetrator shall bear joint and several liability. Article 171 Where the tort committed by two or more persons respectively causes the same damage, and each person's tort is sufficient to cause all the damage, the perpetrator shall be jointly and severally liable. Article 172 Where two or more persons separately commit a tort causing the same damage and are able to determine the size of the liability, they each bear the corresponding liability; if it is difficult to determine the size of the liability, they bear the liability equally. Article 195 Where a network user uses a network service to commit an infringement, the right holder shall have the right to notify the network service provider to take necessary measures such as deletion, blocking or disconnection. The notice shall include the preliminary evidence constituting the infringement and the true identity information of the right holder. After receiving the notice, the network service provider shall promptly forward the notice to the relevant network user, and take necessary measures according to the preliminary evidence and service type of infringement; if it fails to take necessary measures in time, it shall be jointly and severally liable for the expanded part of the damage with the network user. If the right holder causes damage to the network user or network service provider due to the wrong notice, he shall bear the tort liability. Where the law provides otherwise, such provisions shall prevail. Article 124 Where a motor vehicle that has been assembled or has reached the standard for scrapping is transferred by sale or other means, and damage is caused by a traffic accident, the transferor and the transferee shall bear joint and several liability. Article 1241 If the loss or abandonment of highly dangerous goods causes damage to others, the owner shall bear tort liability. If the owner hands over the highly dangerous goods to others for management, the administrator shall bear the tort liability; if the owner is at fault, he shall bear joint and several liability with the administrator. Article 1242 If the illegal possession of highly dangerous goods causes damage to others, the illegal possessor shall bear tort liability. If the owner or manager cannot prove that he has done a high degree of care to prevent illegal possession, he shall be jointly and severally liable with the illegal possessor. Article 1252 Where the collapse or collapse of buildings, structures or other facilities causes damage to others, the construction unit and the construction unit shall bear joint and several liability, unless the construction unit and the construction unit can prove that there are no quality defects. After the construction unit and the construction unit have made compensation, if there are other responsible persons, they shall have the right to recover compensation from other responsible persons. If the collapse or collapse of a building, structure or other facility causes damage to others due to the owner, manager, user or third party, the owner, manager, user or third party shall bear tort liability. (V) Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases of Personal Injury Compensation Article 2 Where a compensation right holder sues some joint infringers, the people's court shall add other joint infringers as joint defendants. If the right holder of compensation waives his claim against some of the joint infringers in the lawsuit, the other joint infringers shall not be jointly and severally liable for the share of compensation that should be borne by the defendant whose claim has been waived. Where the scope of liability is difficult to determine, it is presumed that the joint infringers bear the same liability. The people's court shall inform the holder of the right of compensation of the legal consequences of the abandonment of the claim and state the circumstances of the abandonment of the claim in the legal document. Article 4 If a helper who provides labor services without compensation causes damage to others in the course of helper activities, the helper shall be liable for compensation. If the helped worker assumes the liability for compensation and then recovers from the helping worker who has intentional or gross negligence, the people's court shall support it. If the helped worker explicitly refuses to help, he shall not be liable for compensation. (VI) the Supreme People's Court on the application of<中华人民共和国公司法>(III) on Certain Issues 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. (VII) the qualification of the subject of litigation for more than two joint creditors or joint debtors. In the case of a loan dispute in which the joint creditor is two or more persons and only one or some of the lenders file a lawsuit, the people's court shall notify the other lenders to participate in the lawsuit, except for other lenders who expressly waive their rights to the borrower. If other lenders who have waived their claims file a separate lawsuit against the borrower, the people's court shall not accept it; if it has already accepted it, it shall rule to reject the lawsuit. For joint debtors, two</中华人民共和国公司法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>

2021-12-25

The insurer shall be liable for the loss of insured property caused by the insurance accident in a timely manner in accordance with the law.

[brief case]] On December 9, 2014, a company submitted an "insurance policy" to a financial insurance Linyi branch company to insure comprehensive property insurance. Article 5 of the "Insurance Policy" stipulates that "during the insurance period, the insurer shall be responsible for compensation in accordance with the provisions of this insurance contract for the loss of the subject matter insured due to the following reasons: (ii)..., blizzard,..." Article 7 stipulates that "after the occurrence of an insurance accident, the insured shall pay the necessary and reasonable expenses to prevent or reduce the loss of the subject matter insured, the insurer is also responsible for compensation in accordance with this insurance contract." Article 26 stipulates that "after knowing the occurrence of an insurance accident, the insured shall (I) try his best to take necessary and reasonable measures to prevent or reduce the loss, otherwise, the insurer shall not be liable for compensation for the extended loss; the insurer shall (II) immediately notify the insurer ......; (III) protect the scene of the accident......". From the night of November 23 to 24, 2015, a sudden snowstorm in Pingyi County caused a company's steel structure warehouse to collapse, smashing some cans, soaking the outer package and shell of some cans, and damaging some cans in cold weather. On November 24, 2015, a financial insurance Linyi branch company sent personnel to the scene to check and inspect after receiving the report. On November 28, 2015, a company and a financial insurance Linyi branch jointly commissioned ocean assessment Jinan company to carry out insurance assessment for the accident. Dayang Public Estimation Jinan Company, together with the entrusting parties, conducted a survey of the accident site and inventory of canned goods in stock. During this period, it also checked and verified the accounting books and custody accounts of a company. Due to the dispute over the scope and amount of insurance compensation, a company sued a financial insurance Linyi branch company to the court. focus of controversy] How to determine the loss in this case, whether there is an extended loss, and if there is an extended loss, how to determine the amount and liability. The court of first instance held that] A company to a financial insurance Linyi branch company submitted the "insurance policy" to insure the property comprehensive insurance and paid the premium in accordance with the contract, the insurance company issued the "insurance policy", the insurance contract was established and effective. Documents such as the Insurance Policy, the Insurance Policy and the Insurance Clauses are valid legal documents, and both parties shall enjoy rights and assume obligations in accordance with the principle of maximum good faith in accordance with the contract. How to determine the loss in this case, whether there is an extended loss, and if there is an extended loss, how to determine the amount and liability. The parties have no dispute over the average price of $6500 per ton set by the public assessor, only over the actual amount of loss. Therefore, the actual amount of canned losses should be identified before determining the amount of the loss. In this case, both parties and the assessor agreed during the on-site inspection that there were three types of canned losses in the accident, which are described below. 1. The first category is crushing deformation and crushing. During the site survey, the three parties agreed that the deformed part of the iron tank was presumed to be a total loss. The 314.916 tons were found to be a total loss. 2. The second type of loss is the water-wet type. Water wet cans total 1319.637 tons. At the time of the inspection, the insurer believed that the cans were stored in multiple layers, with the outer layer of the cans being wet but not the inner layer. A company holds the opposite view, arguing that such water-wet cans should actually be a total loss. This kind of loss is determined by the assessor to be 1319.637 × 50%= 659.82 tons when determining the loss. The court of first instance held that at the time of the accident, the loss of water and moisture was 50%, which was more objective. However, when the plaintiff filed a lawsuit, because the cans were not disposed of in time, the presumption of total loss was more in line with the objective situation, and recognized the plaintiff's claim of a company in accordance with total loss. 3. The third category is the part that was in good condition at the time of the on-site inspection but the plaintiff claimed the loss of freezing. On page 7 of the Assessment Report, the survey quantity of cans stored in the new warehouse at the accident site with good appearance is recorded, totaling 839.189 tons. On pages 8 to 13 of the Assessment Report, it is recorded that the total number of cans transferred to the bonded area warehouse for storage is 1562.508 tons. The canned food stored in the above two places is 2401.70 tons. According to the evidence submitted by the plaintiff, on September 6, 2016, according to the requirements of the environmental protection department, the plaintiff disposed of 598.43 tons of canned 581 tons without the consent of the defendant. For the plaintiff's own disposal of 598.43 tons of canned 581, the defendant was not notified in the disposal process, and the consequences of the responsibility should be borne by the plaintiff himself. According to the on-site inspection records of the intact parts in the assessment report, it can be confirmed that the original and the defendant only carried out appearance identification for the disaster-stricken cans with intact appearance, and no quality inspection has been carried out for the internal quality problems of the disaster-stricken cans. On September 9, 2016, the plaintiff once again reported damage to the aforementioned cans with good appearance. The appraiser also only fixed the damage to the expansion tank part with doubtful appearance according to the proportion of 3% of the total amount of the part. The court held that the storage, custody and quality requirements for cans were different from those for ordinary products. When the plaintiff filed the lawsuit, one year and three months had passed since the accident, and these cans had rotted and deteriorated and should be presumed to be total loss. However, the plaintiff has not submitted evidence to prove the category of the corresponding three types of cans, I .e. 598.43 tons of cans 581 disposed of by the plaintiff, and the plaintiff shall bear the adverse consequences for its disposal without notifying the defendant. Considering the above three types of losses, the actual losses of the plaintiff should fall within the scope of compensation: 3437.823 tons (314.916 tons +1319.637 tons +2401.70 tons -598.43 tons), of which 2391.039 tons (1319.637 tons × 50% +2401.70 tons -598.43 tons -72.05 tons) belong to the expanded losses. With regard to the issue of expanding liability for losses, the court held that the defendant insurance company did not allow the plaintiff to dispose of damaged canned products, and the decay and deterioration of canned products caused by long-term storage was an important reason for the expansion of losses, but as a manufacturer, the plaintiff knew that canned products had strict requirements for storage and shelf life, and did not inform the insurance company of the relevant requirements, and he also had an unshirkable responsibility for expanding losses, both parties are liable for fault. The difficulty of this case is whether the calculation of claims for expanded losses applies to insufficient insurance. The court held that the expanded losses are losses caused by fault on the basis of losses caused by normal disasters, mainly expanded losses caused by human factors, which are caused by fault of both parties, not losses caused by normal disasters. The calculation method of insufficient insurance should not be applied, but should be directly based on the fault principle, calculate the fault liability that both parties should bear. The court of second instance held that] On how to determine the expansion of the loss and how to settle the claim. The components of the expanded losses determined by the court of first instance were the losses caused by the failure to deal with the products involved in the case in time after the snow disaster. Although this part of the product was transferred to another place after the disaster, it has not been treated for a long time and has deteriorated and damaged. The recording of the manager of Tianan Company submitted by a company also confirmed that Tianan Company required that the cans that could not be moved should not be processed. According to the on-site inspection records of the intact parts in the assessment report, it can be confirmed that both parties have only carried out appearance identification for the disaster-stricken cans with intact appearance, and have not carried out quality inspection for the inherent quality problems of the disaster-stricken cans. On September 9, 2016, a company reported another damage to the aforementioned cans with good appearance. The appraiser also only fixed the damage to the expansion tank part with doubtful appearance according to the proportion of 3% of the total amount of the part. For canned storage, storage and quality requirements are different from the general product, in a company filed a lawsuit, from the accident has been between one year and three months, these cans have been rotten deterioration, should be presumed to be a total loss. This loss is a financial insurance Linyi branch company does not allow a company to dispose of, resulting in long-term storage decay and deterioration, is the cause of the loss, should be an insurance accident. In addition, a company disposed of 598.43 tons of canned food, which was confirmed by the decision of Pingyi County Environmental Protection Bureau to order correction of illegal acts and the certificate issued by Pingyi County Lu Kang Cleaning Co., Ltd., which should be recognized as the expanded loss. The above for the expansion of the loss, a financial insurance Linyi branch company also did not provide evidence to prove that a company did not take the necessary measures, so the loss should be settled in accordance with the insurance contract. The retrial court held that] In accordance with the provisions of the first paragraph of Article 23 of the Insurance Law, the insurer shall, after receiving the request for compensation or payment of insurance benefits from the insured or beneficiary, make an approval in a timely manner; if the situation is complicated, the approval shall be made within 30 days, unless otherwise agreed in the contract. The insurer shall notify the insured or the beneficiary of the result of the verification; if it is an insurance liability, it shall perform the obligation of compensation or payment of insurance benefits within 10 days after reaching an agreement with the insured or beneficiary on compensation or payment of insurance benefits. According to the above-mentioned legal provisions, after receiving the insured or beneficiary's claim for insurance payment, the insurer shall fulfill the three obligations of verification, notification and payment in accordance with the law, and there is a logical relationship between the three. As far as this case is concerned, after the insured property involved in the case has suffered a snow disaster, in addition to the respondent's active rescue, the applicant, as an insurer, should also timely check and verify the insured property loss caused by the insurance accident according to the characteristics of the insured property. If the insurer fails to perform the aforementioned legal obligations in time according to law, the insurer shall bear corresponding responsibilities for the expanded losses caused thereby. The insured property involved in the case is canned food that cannot be stored for a long time, especially after the snow disaster, the applicant should take active measures to take corresponding derogation measures to properly deal with the damaged food. The case was found in the original trial. Although the insured property involved in the case was transferred to another place after the snow disaster, it was not dealt with for a long time, which caused the product to deteriorate and caused the property loss to be enlarged. The expansion of the loss was related to the applicant's failure to perform the aforementioned insurance law in accordance with the law. The original judgment that the applicant was responsible for the expanded loss of the product involved has factual and legal basis. Lawyer Advice] After the occurrence of an insurance accident, it is the legal obligation of the insurer to approve the request for compensation or payment of insurance benefits by the insured or beneficiary in a timely manner in accordance with the law. In this case, although the insurance contract for the "expansion of loss" agreed to an exemption clause, the insurer also gave a reminder of the exemption clause, but the exemption clause does not exempt the insurer for failure to perform the statutory obligations for the expansion of the loss of the corresponding liability. Through this case, it is suggested that after the occurrence of an insurance accident, the insurance company should, in accordance with the characteristics of the insured property, timely approve the loss of the insured property caused by the insurance accident in accordance with the law, so as to avoid the corresponding liability due to the existence of performance negligence.

2021-12-24

Viewpoint... Can the company's shareholders claim the right to know the company after they lose their shareholder status?

In my opinion, if a company's shareholders lose their shareholder status, they cannot claim the right to know about the company's relevant information after the loss of shareholder status, but they should still have the right to know about the company's information before the loss of shareholder status, for the following reasons: (1) The right to know of shareholders, as the name implies, is the right of the shareholders of the company to know based on their qualifications as shareholders, and the exercise of the shareholders' right to know cannot be separated from the identity of the shareholders of the company. Once the shareholders of the company lose their qualification as shareholders, they also lose the status of exercising the right to know. Therefore, after the loss of shareholder status, the company can no longer claim to the company the right to know the relevant information of the company after the loss of shareholder status. (2) If a shareholder of a company loses his qualification as a shareholder, although he cannot claim the right to know the relevant information of the company after the loss of his qualification as a shareholder, he should still have the right to know the information of the company before the loss of his qualification as a shareholder. Because this information is closely related to the benefits it should receive as a shareholder of the company. In particular, section 165 of the Companies Act provides for the obligation of the company to serve the company's financial and accounting reports to shareholders, and if the company fails to perform these obligations in a timely manner, the company is obliged to perform even if the shareholder has lost his or her shareholder status. (3) Assuming that the company provided false information or concealed true information to the shareholders before they lost their qualifications as shareholders, then the company's actions have constituted a tort and violated the shareholders' right to know. If at this time to deny the withdrawing shareholder's right to know about the company's information before the loss of shareholder status, it is obviously the connivance of the company's tort, but also damage the legitimate rights and interests of the withdrawing shareholder.

2021-12-24

Corporate Litigation Study... Liquidation liability disputes in the rules of corporate litigation adjudication.

Foreword Liquidation liability disputes refer to disputes in which members of the liquidation group shall bear the liability for compensation due to intentional or gross negligence causing losses to the company and creditors during liquidation. During the liquidation of the company, the liquidation group is the company's organ that carries out liquidation affairs internally and handles claims and debts on behalf of the company externally. The Company Law stipulates that the members of the liquidation group shall be devoted to their duties and perform their liquidation obligations in accordance with the law. Members of the liquidation group shall not take advantage of their functions and powers to accept bribes or other illegal income, and shall not embezzle the property of the company. If a member of the liquidation group causes losses to the company or its creditors intentionally or through gross negligence, he shall be liable for compensation. This paper will analyze the liquidation liability disputes from the aspects of legal provisions, disputes and adjudication rules. 1. related regulations 1. Companies Act of the People's Republic of China Article 189 The members of the liquidation group shall be devoted to their duties and perform their liquidation obligations in accordance with the law. Members of the liquidation group shall not take advantage of their functions and powers to accept bribes or other illegal income, and shall not embezzle the property of the company. If a member of the liquidation group causes losses to the company or its creditors intentionally or through gross negligence, he shall be liable for compensation. 2. the People's Republic of China Civil Code Article 70 Where a legal person is dissolved, except in the case of merger or division, the liquidation obligor shall promptly form a liquidation group for liquidation. Members of the executive or decision-making bodies such as directors and directors of a legal person are the liquidation obligors. Where laws and administrative regulations provide otherwise, such provisions shall prevail. If the liquidation obligor fails to perform the liquidation obligation in time and causes damage, it shall bear civil liability; the competent authority or the interested party may apply to the people's court to designate relevant personnel to form a liquidation team to carry out liquidation. 3. (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 18 If the shareholders of a limited liability company, the directors and the controlling shareholders of a joint stock limited company fail to set up a liquidation group to start liquidation within the statutory time limit, resulting in the devaluation, loss, damage or loss of the company's property, and the creditors claim that they are liable for compensation for the company's debts within the scope of the losses caused, the people's court shall support it in accordance with the law. If the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company fail to perform their obligations, resulting in the loss of the company's main property, account books, important documents, etc., and cannot be liquidated, and the creditors claim that they are jointly and severally liable for the company's debts, the people's court shall support it in accordance with the law. If the above-mentioned situation is caused by the actual controller, and the creditor claims that the actual controller shall bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. Article 19: After the company is dissolved, the shareholders of a limited liability company, the directors and controlling shareholders of a joint stock limited company, and the actual controller of the company maliciously dispose of the company's property and cause losses to creditors, or use false liquidation reports without liquidation according to law. If the company registration authority is deceived to cancel the registration of the legal person, the people's court shall support it in accordance with the law. Article 20 When a company is dissolved, it shall apply for cancellation of registration after the liquidation according to law is completed. The people's court shall support the claim that the shareholders of the limited liability company, the directors and controlling shareholders of the limited liability company, the directors and controlling shareholders of the limited liability company, and the actual controller of the company shall bear the responsibility for the settlement of the company's debts. If the company goes through the cancellation registration without liquidation according to law, the shareholders or a third party promises to be liable for the company's debts when the company registration authority goes through the cancellation registration, and the creditors claim that they bear the corresponding civil liability for the company's debts, the people's court shall support it in accordance with the law. Article 23 If a member of a liquidation group violates laws, administrative regulations or the articles of association of the company while engaging in liquidation affairs and causes losses to the company or creditors, and the company or creditors claim that it is liable for compensation, the people's court shall support it in accordance with the law. If a shareholder of a limited liability company or a shareholder of a joint stock limited company who individually or collectively holds more than 1% shares of the company for more than 180 consecutive days, in accordance with the provisions of the third paragraph of Article 151 of the Company Law, if a member of the liquidation group has any act mentioned in the preceding paragraph, the people's court shall accept the case. If the company has been liquidated and canceled, and the above-mentioned shareholders directly file a lawsuit in the people's court with the members of the liquidation group as the defendants and other shareholders as the third party with reference to the provisions of paragraph 3 of Article 151 of the Company Law, the people's court shall accept it. 4. Minutes of the National Court Conference on Civil and Commercial Trials Article 14 The "failure to perform obligations" as stipulated in Article 18, paragraph 2 of the (II) of Judicial Interpretation of the Company Law refers to the shareholders of a limited liability company who deliberately delay or refuse to perform their liquidation obligations after the legal liquidation cause has arisen, or the negative behavior of failing to carry out liquidation due to negligence. If a shareholder proves that he has taken active measures to fulfill his liquidation obligations, or a minority shareholder proves that he is neither a member of the board of directors or the board of supervisors of the company, nor has he selected personnel to serve as a member of the organ, and has never participated in the operation and management of the company, the people's court shall support it in accordance with the law. Article 15 If a shareholder of a limited liability company proves that there is no causal relationship between his negative omission of "neglecting to perform his obligations" and the result of "the loss of the company's main property, account books, important documents, etc. and the inability to liquidate", the people's court shall support it in accordance with the law. Article 16 If the creditors of the company request the shareholders to bear joint and several liability for the repayment of the company's debts, and the shareholders defend on the grounds that the claims of the company's creditors against the company have exceeded the limitation period of action, which is verified to be true, the people's court shall support it in accordance with the law. If the creditors of the company request the shareholders of a limited liability company to bear joint and several liability for the debts of the company on the basis of article 18, paragraph 2, of the (II) of the judicial interpretation of the company law, the limitation period shall be calculated from the date on which the creditors of the company know or should know that the company cannot be liquidated. 2. Disputes and Judgment Rules (I) Controversial Issue 1: The determination of shareholders' liability in the case of fraudulent cancellation of the company. Case: Xia Moumou refused to accept the civil judgment No. 813 of the People's Court of Dongtai City, Jiangsu Province (2017) Su 0981 Minchu due to a dispute over liquidation liability with Chen Mou and others, and appealed to the Intermediate People's Court of Yancheng City, Jiangsu Province. The Intermediate People's Court made a civil judgment (2017) Su 09 Minzong No. 4142, and then applied to the Intermediate People's Court of Yancheng City, Jiangsu Province for a retrial, the Intermediate People's Court of Yancheng City, Jiangsu Province made a civil ruling (2018) Su 09 Min Shen No. 109. referee rules] If a shareholder of a limited liability company, without liquidation in accordance with the law, defrauds the company's registration authority to cancel the registration of a legal person with a false liquidation report, which harms the interests of creditors, the shareholders of the company, as liquidation obligors, shall bear the corresponding liability for compensation. The scope of such liability is limited to the amount due to the creditor under legal liquidation. The amount due to creditors under legal liquidation, according to the principle of good faith and the dominant position of shareholders to know the company's situation, should be the shareholders as the liquidation obligor to bear the burden of proof. If the shareholders of the company cannot prove the true amount of the company's remaining property in the case of liquidation in accordance with the law, they shall bear the adverse legal consequences. (II) Dispute Issue II: Liability for Company Liquidation Harm the Interests of Creditors Case: Zhuzhou Binjiang Furniture Co., Ltd. refused to accept the civil judgment No. 930 of the people's Court of Tianyuan District, Zhuzhou City, Hunan Province (2016) because of a dispute over liquidation liability with Liu Mouhua and Xu Mouhong, and appealed to the Intermediate people's Court of Zhuzhou City, Hunan Province. Zhuzhou City Intermediate people's Court of Hunan Province issued a civil judgment No. 1233 of (2017) Xiang 02 Min Zhong. referee rules] When the company is liquidated, the liquidation group knowingly fails to perform the obligation of notice because the company has outstanding claims, and after the company is canceled, the corresponding losses of the creditors shall be compensated by the members of the liquidation group. There are two kinds of liability for the liquidation of a company to harm the interests of creditors, one is the liability of the liquidation group for failing to fulfill the obligation of notice announcement, and the other is the liability of the liquidation obligor for maliciously disposing of the company's assets and false liquidation. The former belongs to the infringement of omission, and the latter belongs to the infringement of act. There are some differences between the two in the subject of tort liability and the scope of liability, which should be strictly distinguished and identified in judicial practice. (III) Dispute Issue 3: Determination of Liability for Liquidation of Shareholders of Limited Companies and Starting of Limitation of Action Case: Shanghai Wensheng Investment Management Co., Ltd. refused to accept the civil judgment of Beijing Haidian District People's Court (2014) Haimin Chuzi No. 4323 due to a dispute over liquidation liability with Zhongke Industrial Group (Holdings) Co., Ltd., and filed an appeal with Beijing No. 1 Intermediate People's Court, and Beijing No. 1 Intermediate People's Court issued (2015) Zhongyi Min (Shang) Zhongzi No. 2997 civil judgment. referee rules] 1. The liquidation obligor of a limited company shall be liable for liquidation and shall meet the conditions of negligence in fulfilling the liquidation obligation, the company cannot be liquidated, and there is a causal relationship. Among them, for the determination of "indifference" and causality, it is necessary to take the way of inversion of the burden of proof and presumption of causality. The shareholders of a limited company, as the liquidation obligor of the company, the size of their shareholding and whether they actually participate in the operation of the company are not valid exonerations. 2. In terms of the statute of limitations, it shall be calculated from the date on which the creditors know or should have known that the shareholders of the company have neglected to perform their liquidation obligations, resulting in the derogation, loss or inability to liquidate the company's property. (IV) Dispute Question 4: The allocation of the burden of proof and the standard of proof of the joint and several liability of the shareholders based on the liquidation obligation. Case: Dingshi Law Firm refused to accept the civil judgment of Beijing Chaoyang District People's Court (2015) Chaomin (Shang) Chuzi No. 67115 for a dispute over liability for damaging the interests of the company's creditors with the shareholders of Beijing Kexin Investment Co., Ltd., and filed an appeal with Beijing No. 3 Intermediate People's Court, and Beijing No. 3 Intermediate People's Court issued a civil judgment (2017) Beijing 03 Minzong No. 5302. referee rules] 1. The compulsory liquidation procedure is not a pre-procedure in the litigation that "cannot be liquidated. 2. In the allocation of the burden of proof for "non-liquidation", the burden of proof shall be borne by the creditor. Creditors are required to provide preliminary evidence of the "inability to liquidate" the company. When the liquidation obligor claims not to be jointly and severally liable for liquidation, the liquidation obligor shall adduce disproof that the company's "inability to liquidate" is not due to its negligence in fulfilling its liquidation obligations. If there is no evidence to the contrary, the liquidation obligor shall bear the corresponding liability. 3. When the liquidation obligor claims that it can be liquidated and provides preliminary evidence that meets the conditions for liquidation, the liquidation procedure shall be carried out first. In this case, the seizure of the company's account books by the court due to the execution procedure does not constitute "the loss of the company's main property, account books, important documents, etc." and "cannot be liquidated", and the creditor cannot directly request the shareholders of the limited liability company to bear joint and several liability for settlement. 4. When the liquidation obligor claims that the company can still be liquidated and provides preliminary evidence, the litigation should examine whether the company can be liquidated. The liquidation obligor only needs to prove that it can still be "liquidated" rather than "fully liquidated", and whether the company can be "fully liquidated" is not something that should be examined in the proceedings.

2021-12-24

Viewpoint | Research (IV) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. 4. determine the relationship between rights and obligations related to online writing based on the nature of the contract. As mentioned above, as a type of work, online literary works are no different from the "written works" defined in the Copyright Law. The difference lies only in the changes in the communication carriers and channels of the works, but it is this change that triggers the works. The changes in the creation and operation mode make the existing copyright system have an embarrassing situation in some cases: although there are no obvious obstacles to its application, however, the result of its operation will go against the original intention of the establishment of the system, and it will not achieve the expected effect, such as protecting the rights and interests of authors, promoting the creation and dissemination of works, and so on. [] But on the other hand, the law's adjustment of social relations cannot be used to change the existing rules and arrangements by using the method of treating headaches and feet. Although, as mentioned earlier, both the feudal privileges of the 15th century and the capital privileges of today's society have enabled publishers/online platforms to gain market power, the feudal privileges and capital privileges as sources of market power operate in very different ways. The latter, while also creating an imbalance in the allocation of resources, is the result of the spontaneous action of the market itself. For the correction of this result, the law, as a public power, should try to restore the market's ability to regulate through the correction of rights and obligations. [] As far as the "Copyright Law" itself is concerned, since it is still a traditional work of text, according to the traditional theory and practice of copyright law and intellectual property law, it is unnecessary, impossible, and almost never based on the same type of work., Only because of the difference of the carrier to make different analysis or arrangement. Under the circumstances of the ever-changing business model in the new era, this paper advocates combing the legal relationship in the agreement, determining the nature of the agreement on the basis of the essence of rights and obligations, and dealing with the validity of the relevant provisions, the agreement is not agreed or the agreement is not clear, so that the "old" system can be used to solve new problems. The economic analysis of copyright law is one of the explanatory contents of the new institutional economics arising from the transaction cost as the starting point, and its analytical logic, in short, is to reduce transaction costs and realize the effective allocation of resources by the market through clear rights boundaries and transaction rules. [] And the increase in transaction costs is often triggered by information asymmetry, opportunism, etc., which leads to market failure. [] According to the market priority theory [], when there are market failures associated with them, justice should make the market an effective mechanism for the allocation of resources again by reducing the influence of these factors. When this theory is applied to the related issues of network literature creation agreement, it is to sort out and identify the rights and obligations of both parties to the contract. Although the online writing agreement is titled "Copyright License/Authorization Agreement" or "Work Use Agreement", in essence, it does not comply with the provisions of the Copyright Law and other laws for related contracts, so it is an atypical contract., That is, nameless contract. The rules for atypical contracts shall be determined in accordance with the content of the contract, the relationship between the terms of the contract, the principle of good faith and trading practices []. Therefore, for these agreements, in addition to the wording (including the literal meaning of the title), determine the essence of the contract, and determine the various rights and obligations based on the above factors. (I) identify the substance of the contract to determine the internal legal relationship. Determining the relationship between rights and obligations from the perspective of the substance of the contract is first reflected in the understanding of the legal relationship between the network platform and the author. For example, in a pure UGC model, the web platform signs a user usage agreement with the author. As mentioned earlier, the author maintains a relatively complete copyright in this agreement. Based on the practical needs of online publication, the author will give some rights, such as submitting manuscripts, which means that the author has permission to the right of information network dissemination and reproduction in specific ways. The author's act of clicking "I have read and agree to the agreement" constitutes a default to the terms of the contract. However, according to general trading habits, this concession should be extremely limited and should be limited to the need for online publication. If the terms of the user agreement form a license or transfer of the main rights of the copyright, it can no longer be considered as a user agreement, but should be considered to constitute a copyright transfer or license contract. For another example, sometimes the name of the agreement is "authorization contract", but in fact it excludes the possibility of the author exercising the copyright during the entire duration of the copyright, and authorizes the network service provider to exclusively license the property rights of its works to the network within 50 years of life and death. Platform, it should be considered that a copyright transfer contract has been formed. When the apparent user agreement is essentially in the nature of a copyright license or transfer contract, the provisions of the Copyright Law on the right to remuneration of the copyright owner [] should be invoked. When the agreement does not agree on the contractual consideration, the author should not be considered to have tacitly licensed or transferred the copyright in a free manner, but should be interpreted otherwise for the relevant provisions. This situation can be dealt with in the following ways: the first way is to find that the contract is not established on the grounds that the contract lacks the main clause []. Whether according to the general principles of debt law or the provisions of copyright law for copyright licensing or transfer contracts, the payment consideration clause is the main clause of the contract. According to the principle of good faith and trading habits, in the absence of clear evidence that the author has made a clear waiver of the right to remuneration when agreeing to use the agreement, the main terms of the contract should be found to be missing, so that the contract is not established. The second way is to invoke the format contract specification processing. Since the user's use agreement is generally presented in the form of text displayed in advance on the web page or client, the user has only the right to choose whether to agree as a whole, thus satisfying the constituent elements of the format contract. At this time, the lack of a consideration clause in the licensing or transfer of copyright can be found to be invalid for the failure to follow the principle of fairness and exclude the main rights of the other party as stipulated in the Contract Law, and an explanation that is not conducive to the contract provider, the operator of the network platform. In addition, the mere presentation of the relevant provisions in bold type is not sufficient to satisfy the requirement to indicate the relevant provisions. The third approach is to characterize the absence of a remuneration clause as a revocable, modifiable contractual clause resulting from a material misunderstanding. Since the right of rescission of a contract is a right of formation [], the author may choose for himself whether to effect the licensing and transfer of copyright with the payment of consideration, or to revoke the agreement. This scheme may be more inclined to maintain the security of transactions and facilitate transactions that use works. (II) determine the relationship of external rights and obligations on the basis of the nature of the agreement. Although the contract is relative and the validity of the online writing agreement is only binding on the rights and obligations of both parties to the agreement, the characterization of this agreement may still have an impact on the external rights and obligations of both parties to the agreement to a certain extent. The more typical situation is the application of the safe haven principle. The purpose of the safe harbor principle is to exempt the network platform from the heavy general review obligation, so that it can get rid of the general tort liability when the user's behavior infringes the rights and interests of the third party, and only bear the responsibility of review and deletion when receiving the notice of infringement, and bear joint and several liability when failing to fulfill the obligation of deletion. [] For the infringement of the author of online literature-generally the author's work infringes the copyright of others-the online platform will generally invoke the safe haven principle in order to avoid liability. When the network writing agreement is not characterized as a user agreement, the safe haven principle has no room for application. At this point, the network platform operator may be jointly and severally liable because of its position in the agreement-such as the transferee of rights or the creative principal of the work. This is not only based on the general principle of the compatibility of rights and obligations, but also related to the purpose of the safe haven principle. When the website forms a copyright license and transfer relationship with the author, the author is no longer just a user of the website, and the website is no longer a network service provider (ISP), but may become a content provider (ICP), thus being responsible for the content provided by himself. In particular, if the network platform and the author make an agreement on the copyright of future works, which makes the author bear the obligation of continuous contribution to the website within a certain period of time, the website has the right to substantially control the content of the works, even when the author uses the pen name to restrict according to the above, or arranges different authors to create the same work or series of works with the same pen name, or when the website pays the author according to the amount of work completed, under the condition that other conditions are met, it can be considered that the two are equivalent to forming a labor or labor relationship. When a labor relationship is formed, the author's tort liability shall be determined according to the circumstances of the damage caused by the relevant labor service, and shall be borne by the person receiving the labor service, that is, the operator of the network platform. When the labor relationship is met, it may constitute a job work stipulated by the copyright law and shall be handled in accordance with its provisions. If the network platform has almost complete control over the author's creation, such as issuing instructions or modifying the style and content, it can be recognized as a legal person's work, and the network platform operator shall bear the responsibility. Conclusion To sum up, when the traditional copyright object of written works is used as the carrier of the network, and thus the author uses a business model that is completely different from the past, the nature of the legal relationship and the relationship of rights and obligations between the two parties cannot be determined only by the wording and appearance of the agreement between the author and the network platform. It is necessary to study the essence of the relationship between rights and obligations determined by the provisions of the agreement, analyze the agreement provisions and the spirit of relevant legislation in accordance with the copyright Law, the contract Law and other relevant laws and regulations, and combine the trading habits and the principle of good faith to determine the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its provisions, and clarify the relationship between the rights and obligations of both parties. And the external liability and other matters. Article 1 of the Copyright Law [] Mao Xiang. Application of Market Priority Principle in Intellectual Property [J]. Journal of Chongqing University (Social Science Edition),2018,24(06):157-168. [] Cui Guobin. Criticism of Intellectual Property Judges' Law-Making [J]. Chinese Law Science, 2006(01):144-164. [] Eric Frubberton, Rudolf Reichert. New Institutional Economics-A Transaction Cost Analysis Paradigm [M]. Shanghai: Shanghai Sanlian Bookstore, Shanghai People's Publishing House, 2006:54 [] Liu Dahong. On the principle of market priority in economic law: connotation and application [J]. Law and Business Studies, 2017,34(02):82-90. [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P73 [] Articles 10 and 24 of the Copyright Law [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P115 [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P244 [] by Cui Guobin. Copyright Law. Principle and Case [M]. Peking University Press, 2014.P753

2021-12-24

Viewpoint | Research (III) on the Nature of Network Writing Agreement and Related Copyright Issues

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. 3. network writing patterns and the nature of contracts that may be involved (I) typical contracts related to web writing A typical contract, also known as a named contract, is a contract that is regulated by law and given a certain name. According to the "Copyright" law, the copyright of a written work arises from the completion of the creation of the work and initially belongs to the author. Therefore, in the process of network writing, the author and the network platform are regulated by relevant laws and agreements. These agreements may involve the following typical contracts. 1. User Use Agreement At the beginning of the birth of network literature, the rights and obligations between the network platform and the author are restricted by the user's use agreement. This type of protocol is actually developed from the end user agreement (EULA) commonly used in computer software. There is no substantial difference between the author and the reader. They are both users of the network platform. The author and the reader use the system provided by the website to publish works or other "posts" that do not constitute works online as registered users ". Before users register to use the services provided by the website, the website uses a set of format contracts to regulate the behavior of users using the website to publish information. [] Except for the defining provisions and provisions related to network security, the website generally does not require an explicit license or transfer of copyright for the work or the copyright itself. The Site is licensed with very limited partial copyright rights based solely on the needs of the Site to operate. Some of these licenses are based on the provisions of the law or the agreement of the user's use agreement, such as online submission is regarded as the publication of the work, the right to republish the website, etc. But more, the use of the site for the work is based on the operation of the site should of course be allowed to act, such as information network dissemination, data backup for the need to copy the work. As for the creation of works, websites generally do not interfere, but emphasize that works must not violate the regulatory provisions of the law. At the same time, some websites may review the works published on the website in advance or later for the sake of unified theme and quality of the website, so as to publish or delete the works. Based on the user agreement, the author has complete copyright to the work. If the website intends to make further use of the published article, it must sign a special agreement with the author, thus turning to the copyright transfer or license agreement. 2, copyright transfer or license agreement. In order to make further use of the works, such as the collection and publication of the works or the change into film and television works, the website needs to sign a copyright license contract with the author for the works. In these contracts, the network platform obtains part of the right to use the work according to the agreement, such as the right to make changes, the right to compile, etc. However, as mentioned above, especially in the process of producing film and television works, the exercise of ordinary license or single power may not meet the needs of the integrity of the rights associated with it. Therefore, the network platform often tries to obtain exclusive or exclusive license, and obtain a relatively complete license of copyright property rights,[] and even requires the author to transfer the copyright property rights. In the process of using copyright for pledge financing, the transfer of all property rights of works is the most common practice. A copyright license or transfer is a succession of copyrights or rights. In order to obtain the original copyright, the network platform and the author sometimes sign agreements on the ownership of future works. The names of these agreements are often still "copyright authorization agreement" or "license contract", but in fact, they may form entrusted creation or even labor and labor relations. 3, entrusted creation agreement, network brokerage agreement or the formation of labor and labor relations. The validity and content of a copyright license or transfer contract are restricted by the copyright law. This restriction is mainly concentrated in two aspects: First, the creation of copyright begins with the completion of the creation of the work. Therefore, for unfinished works, because there is no grantable "Right", it is of course impossible to have a license or transfer contract based on copyright. Although judicial precedents recognize the binding force of these contracts [], they can only be based on the fact that the contractual obligation leads to the licensing or transfer of copyright as a contractual obligation to be performed after its creation. Second, according to Article 10 of the Copyright Law, the copyright rights that can be used for licensing or transfer are limited to the property rights of the works. [] Therefore, if the network platform agrees on the ownership of the complete copyright of the work produced in the future, it is likely to constitute a contract of commissioned creation. According to Article 17 [] of the Copyright Law, the copyright of a commissioned work is agreed upon in a contract and, in the absence of such agreement, belongs to the trustee, I .e. the author. In practice, the network platform and the author often agree that the copyright initially belongs to the network platform operator, so that the network platform can form the original acquisition of the complete power of the copyright. Different from the traditional commissioned creation, the network literature creation agreement often does not make a special clear agreement on the creation content itself, but only determines the number and frequency of contributions, the ownership of copyright and the distribution of benefits. At the same time, with the development of the industrialization of network literature, the related specialized profession arises at the historic moment, both network literature agent. The main work of the broker is not only to find trading opportunities and facilitate transactions for the author and the network platform, but also to undertake upstream industry-related work such as the determination of creative style, the selection of themes, the communication between the network platform and the author on the creative content, and the follow-up of the writing progress. Some of them are also responsible for the operation of works, author services, works publicity and derivatives development services. [] The development of the network literature creation industry has produced more complex agreements and operating methods. When commissioned creative agreements are combined with online literary brokerage agreements and are often fully controlled by online platform operators, groups of authors, especially small and medium-sized writers, sometimes argue that these contracts form labor or service relations in substance. In these agreements, the network platform often stipulates the number and frequency of the author's contributions by agreement, and agrees that the copyright originally belongs to the network platform. At the same time, it is agreed in the contract that the author should create in accordance with the content and style required by the network platform in the process of creation. These requirements are not explicitly stated in the contract, but are issued to the author through separate instructions during the performance of the contract. In particular, many online platforms have agreed on the use of the author's pseudonym. [] In addition to the traditional author writing under a pseudonym, there are also some special ways of application, such as prohibiting authors from making contributions to other subjects under the same pseudonym, for different works, authors should write under different pseudonym, or different authors should create under the same pseudonym, or even multiple authors jointly create the same work under the same pseudonym. In this case, the author is generally called "writer" in the industry, and this kind of creation also deviates from the writing mode with the author as the core in the traditional literary creation and turns to the production mode of industrialized works. Therefore, the author group believes that it has formed a labor or labor relationship with the network platform, and then advocates the relationship of rights and obligations related to labor security, labor infringement and job works. [] (II) network publishing mode and nature of publishing agreement As mentioned earlier, the network literature creation industry has experienced the development path from the traditional UGC mode to PGC and OGC mode. At the same time, these modes also exist in the current network literature creation. Therefore, it is necessary to sort out the nature of the network creation protocol in these modes. In the UGC model, the platform typically operates as an electronic bulletin board (BBS), an online forum, or an online community. In this mode, users publish articles on the website, and the platform is the channel for authors to publish articles. The relationship between the author and the platform is the relationship between the user and the network service provider. The protocol at this time is generally a user usage protocol. The author retains relatively complete copyright and is responsible for his own articles. For the author's infringement, the website can invoke the "safe haven principle". In the UGC mode, the further use of the work is extremely accidental. When the network platform wishes to make further use of the work, the agreement signed is generally a copyright license or transfer contract. In the PGC model, the author is generally a professional writer, the purpose of writing is to publish on the website, through the website traffic or revenue sharing, while seeking opportunities for the creation and use of derivatives of the work. Therefore, the website and the author will generally sign an agreement in advance on the use of the copyright of the work, and at the same time agree on the attribution of rights and the distribution of benefits for the interpretation of the work. These agreements may be commissioned creative contracts, or they may form copyright transfer and licensing contracts. For the creation and operation of derivatives, the author and the platform may also form an agency relationship (I. e., the platform acts on behalf of the author to exercise copyright rights) or a brokerage relationship. In OGC mode, the author's writing is generally to complete the tasks delivered by the platform and write according to the requirements of the platform, and the platform pays the remuneration according to the agreement. The agreement relationship formed at this time is relatively complex. Since under the OGC model, if the agreement is generally for works that have not yet been created or have not yet begun to be created, there is generally no copyright license or transfer agreement. Its agreements should be characterized as the aforementioned commissioned creation agreement, online brokerage agreement or the formation of labor and labor relations. [] Wang Yize. Coping with Copyright License Format Contract Expanding the Scope of Copyright Owner's Rights [J]. China Publishing, 2020(08):61-64. [] Come, Tucki. On the exclusive license of copyright under the network environment [J]. China Publishing, 2017(03):52-55. [] Shanghai Pudong New Area People's Court,( 2010) Pu Min San (Zhi) Chu Zi No. 424. [] Article 10 of the Copyright Law [] Article 17 of the Copyright Law Chinese Culture Newspaper. Integrating Resources to Build Industrial Chain Network Literature "Broker" Comes [EB/OL].http://www.ce.cn/culture/gd/201408/23/t20140823_3410259.shtml,2020年5月15日. [] Tang Li Han. Tianxia Ba Sings Victory to "Nine-story Demon Tower": Film Party Violates Authorship [N]. Legal Evening News, 2016-06-28 [] Lai Mingfang. How can online literature platforms and authors coexist and win-win [N]. China Press, Publication, Radio and Television News, 2020-05-14(005).

2021-12-24

Point of view... How to determine that the purpose of shareholders requesting access to the company's accounting books is improper.

According to Article 33 of the Company Law, if a shareholder requests to consult the company's accounting books, he shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that the shareholders' access to the accounting books has an improper purpose that may harm the legitimate interests of the company, it may refuse to provide access. It can be seen that the legitimate purpose of the shareholders' access to the company's accounting books will be directly related to the realization of the right of access. Then, how to determine the legitimacy of the right of inspection in judicial practice? As a company, how to prove that the right of inspection claimed by the plaintiff shareholders has an improper purpose? According to the provisions of Article 8 of the (IV) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law, the shareholders of the company have one of the following four situations: the people's court shall determine that they have an "improper purpose": (1) If a shareholder operates a business for himself or for another person that has a substantial competitive relationship with the company's main business, it shall be deemed to have an "improper purpose." The "self-employed" here refers to the business operated by the shareholders themselves; the "main business" here refers to the business of the main source of the company's profits; and the "substantial competitive relationship" here refers to the direct conflict of interest between the shareholders and the company. However, if there is such a relationship between the shareholders and the company, but the articles of association of the company provide otherwise or all shareholders agree otherwise, the treatment in accordance with the provisions or agreement may not be regarded as "improper purpose". (2) If a shareholder consults the company's accounting books in order to inform others of the relevant information, which may harm the legitimate interests of the company, it shall be deemed to have an "improper purpose." "Relevant information" here refers to the information contained in the company's accounting books. The purpose of a shareholder's access to the company's accounting books is not to exercise his or her rights as a shareholder, but to inform others of the information he or she has accessed, which should be deemed to have an "improper purpose" as long as it has the possibility of harming the legitimate rights and interests of the company ". (3) If a shareholder, within three years prior to the date of making a request for inspection to the company, has informed others of relevant information that harms the legitimate interests of the company by consulting the company's accounting books, it shall be deemed to have an "improper purpose". The term "within three years" here refers to the three years before the date of the shareholder's request for inspection to the company, not the three years before the date of the shareholder's lawsuit in the people's court. If a shareholder has "consulted the company's accounting books and informed others of relevant information that harms the legitimate interests of the company" within three years before the date of filing a request for inspection to the company, it shall be deemed to have an "improper purpose". (4) Other circumstances in which the shareholders have improper purposes. This is a bottom-up clause. Due to the complexity of the actual situation, legislation cannot exhaust all the circumstances of "improper purposes", so more facts are handed over to the people's court for truthful determination.

2021-12-23

A little discussion of the general consumer in the determination of design infringement.

1 Opinion of the Supreme Court One of the focus of the dispute summarized by the Supreme Court in Administrative Judgment No. 359 of the Supreme Court (2020) is whether the internal cavity structure of profile products is protected by the design patent right (should be protected). In this regard, the Supreme Court held that: Part IV, Chapter V, Section 4 of the "Patent Examination Guidelines" stipulates that general consumers of a certain type of design products should have the following characteristics:(1) The design of the same or similar type of products before the date of the patent application in question And its common design methods have a common sense understanding. Commonly used design techniques include the design of the transfer, splicing, replacement and other types. (2) the design of the product between the shape, pattern and color of the difference has a certain degree of resolution, but will not notice the product shape, pattern and color of small changes. It can be seen that the general consumer refers to a consumer group, and different consumer and user groups often have different understandings and visual impressions on the appearance design of products in different fields. "General consumer" is a person who can represent the general commonness of ordinary consumers, which is the same as the concept of "ordinary technical personnel in this field" introduced in the creative judgment of invention and utility model and the abstract concept of "ordinary person" of "general attention" commonly used in civil law. The court can neither regard a group of people as the general consumers of all products, nor can people who have nothing to do with a certain product be regarded as ordinary consumers of this product, otherwise, the conclusion drawn is likely to be unfair. The general consumer is not any citizen, but a purchaser or user of a particular class of goods. Because only consumers who buy goods or consumers who use goods need to compare and judge the similarity between the product and other products of the same kind, the evaluation of patented products should be restricted by the observation population. Profile products are an intermediate product. The end users of the products often do not buy the profiles themselves alone. What they consume is products assembled from profiles, and the sales mode of profile products also leads to the end users of the products. It is often obtained through distributors or operators, and rarely directly purchased through manufacturers. Based on this, the general consumers of profile products include not only the end users of the products, but also the relevant operators, salesmen and purchasers in all aspects of profile manufacturing, sales, installation and use. Compared with the end user, the main body in the purchase of patented products, will pay more attention to the various design features of the product, especially the internal cavity structure has a larger design space, in the profile section accounted for a relatively large, should be focused on the design features. The original judgment held that the determination that the internal cavity structure was completely invisible in the final use state ignored the condition that the internal structure in the legal sense should be restricted by the observation population, and the court corrected it. 2 Analysis of the Supreme Court Referee's Viewpoint The above evaluation of the Supreme Court in this case can be briefly described as follows: ordinary consumers are typed subjects with a common perspective, and different types of consumers have different perspectives for the same product, thus resulting in relatively more design elements for the same product, according to the perspective of one type of consumer, while according to the perspective of another type of consumer, the design elements are relatively less. In this case, the direct sales objects of profile products are related operators, salesmen and purchasers in various links such as profile manufacturing, sales, installation and use. Such subjects will pay more attention to the design details of the profile than the end users during purchase, thus paying more attention to various design features of the product, especially the internal cavity structure has a larger design space and accounts for a larger proportion in the profile interface, is a design feature that should be emphatically considered. Below we look at the characteristics of the profile itself, the first is the definition of its discipline, refers to the metal after plastic processing, with a certain cross-sectional shape and size of the solid straight bar. The profile is a product with a certain geometric shape made of materials such as iron and aluminum with a certain strength and toughness through rolling, extrusion, casting and other processes. It has predetermined mechanical properties by virtue of its appearance size and cross-sectional shape. The design of profile section mainly considers whether the corresponding section has good mechanical properties. In addition, considering the connection form of the final product, and adding auxiliary structures such as connecting ribs in the cross-sectional design, the direct consideration is still the function. For example, the relevant operators in the manufacturing process, the design and manufacture of the profile section, directly consider whether the section makes the profile more powerful (with features), rather than looking more handsome (decorative features). Forcing fiction to be aesthetic, or to define it as a decorative feature, is not too convincing, and will lead to the need to consider too many irrelevant factors in the determination of design infringement, which makes the determination of infringement more cumbersome and more prone to problems. Regarding the logical analysis of the above-mentioned referee's point of view, we first look at its logical characteristics. There is a logical fallacy called the affirmative latter. The normal logic is that the former is true-&gt; the latter is true, and the affirmation of the latter is directly or indirectly through some form of description substantially affirms the latter, and the common form is to strengthen the opposite party's affirmation of the latter through multiple direct or indirect terms. However, the relevant description of the judgment in this case "when purchasing patented products, such subjects will pay more attention to various design features of the products, especially the internal cavity structure has a large design space, which accounts for a large proportion of the profile section and is the design feature that should be considered" includes two "design features" and one "design space", thus strengthening the true understanding that "the profile section shape is the design element. However, is the so-called "design feature to be considered" a design feature of a true industrial design? In fact, many guiding cases of the Supreme Court are trying to separate decorative features (design features) and used features (functional features). However, the first paragraph of Article 11 of the Supreme People's Court's (II) on Several Issues Concerning the Application of Laws in Hearing Patent Infringement Disputes stipulates that when the people's court determines whether the design is the same or similar, it shall be based on the design features of the authorized design and the accused infringement design, comprehensive judgment based on the overall visual effect of the design; design features mainly determined by technical functions and features such as materials and internal structure of the product that do not affect the overall visual effect shall not be considered. As a further example, the following situations usually have a greater impact on the overall visual effect of the design: (1) The parts of the product that are easily observed directly during normal use are relative to other parts. For the profile section, the design should first consider the mechanical properties of the profile, and then, for example, the process of extrusion, such as the transition design at the corner, these two considerations are determined by the technical function, rather than the decorative decision. As far as the characteristics of the profile are concerned, considering the appearance design characteristics of the profile section, the essence is that the shape of the section affects the expression of the shape characteristics of the profile used to show people. As an intermediate product, the general consumer has more in-depth consideration than the end user. The more in-depth consideration is not the end user's simple perception of side beauty, but the expression of side beauty display and cross-section to side beauty display, thus affecting the end user's perception, and more will consider the correlation between cross-section structure and beauty perception, rather than what kind of beauty the cross-section structure itself will give people. People who have studied industrial design know that "industrial design leads to a new relationship between commodities and users except for the simple use of functions". Although a large number of designs have both the use of functions and the consideration of "beauty", they cannot get rid of the constraints of "new relationship". With the help of this new relationship, it makes the right holders and the public have relatively stable expectations of the object of protection of the design, instead of dividing the characteristics of "use" in some cases and taking the characteristics of "use" into account in other cases. It has to be said that profiles, a product with relatively few characteristics belonging to design elements, are identified as the object of design protection, which is very tasteless. However, the characteristics that should not belong to design elements should not be taken into account because of the lack of them, otherwise there will be a very large space for the determination of the scope of protection of design patents, and the public will not have a stable expectation of its protection scope, and then make the behavior of the public infringement in unpredictable, unstable, uncertain state, can not reasonably arrange their own production and operation.

2021-12-23

The legal observation (I) of government investment and financing. On the dilemma and adjustment path of PPP development.

Foreword If it is not appropriate to describe the current situation of PPP as "in trouble", it should not cause too much controversy to describe it as "in an awkward situation. Regardless of the decreasing number of PPP projects that have been signed and landed in previous years, it is quite common that projects should be returned to the warehouse but not returned to the warehouse or projects should be rectified without policy support due to problems such as untimely government payment, over-generalization of total project investment, no actual operation and maintenance content of projects, insufficient payment income of project users, and non-standard project performance management, what's more, local governments have come up with the idea of returning projects that have been put into storage because they are not willing to deal with the normative supervision of projects. However, regardless of the current situation of PPP, unless there is a better and more standardized investment and financing mechanism in the field of infrastructure and public utilities, PPP still has the applicability and vitality of consensus, and PPP projects that have been landed will continue to be implemented. PPP has a more promising future. Since 2014, with the introduction of a series of PPP promotion policy documents by the State Council, the Ministry of Finance and the National Development and Reform Commission, the local government has ushered in a period of vigorous development of PPP. Since the strengthening of PPP normative management in 2019 (represented by the document "Implementation Opinions on Promoting the Normative Development of Government and Social Capital Cooperation" (Caijin [2019] No. 10)), PPP development has entered a relatively quiet period. Although the new warehousing projects can still maintain hundreds of net growth every year-according to the monthly report data of the national PPP comprehensive information platform project management database from January to may 2021, there are 270 new warehousing projects, 249 contracted landing projects, 174 construction projects, 149 returned projects and 121 net increase projects-on the surface, local PPP is still in a state of steady development, however, many problems are hidden under the calm appearance: on the one hand, the project has actually been terminated ahead of schedule, but there are many projects that have not been returned due to the failure to reach a compensation plan and other reasons, and these projects have not been counted in the return data; On the other hand, due to insufficient feasibility study and imperfect error correction mechanism in the early stage, the implementation stage of new warehousing projects is facing adjustment difficulties. The dilemma of PPP development in 1. If it is not appropriate to describe the current situation of PPP as "in trouble", it should not cause much controversy to describe it as "in an awkward situation. Let's first look at some of the problems encountered during the implementation phase of the stock project, which, while not necessarily universal, are clearly not limited to individual cases, but have class or geographical commonalities. According to the existing policy, some problems have led to the operation of the project is not standardized. (I) government payment is not timely Government payment is not timely has become a common phenomenon of PPP projects. The apparent reason is that the government has no money, and local governments are usually not shy about it. The financial ability of local governments to pay is the main reason that affects government payments, but things are not as simple as they seem. Whether it is local governments or social capital, the reason why they prefer to simply attribute the reason to money, in a sense, is nothing more than not wanting to touch the pain point of PPP projects-normative issues. So, what are the pain points behind the government's untimely payment? 1. Project completion settlement and project completion financial accounts are not timely On the surface, the reason for the delay is efficiency, but the following factors may also be involved: (1) The EPC general contractor, especially the fixed total price general contractor, has not made a project budget; (2) There are differences between the government and the social capital on the claims caused by the delay of the construction period. (3) The government and social capital parties cannot agree on the calculation of interest during the construction period of the project, especially in projects where the use of funds by the project company is not standardized (e. g. social capital is collected and used by the project company funds, social capital is not standardized to lead to financing, etc.); (4) The government side and the social capital side cannot reach a consensus on the process of the project completion settlement audit, the government side directly to the project settlement audit, or on the basis of the project company and the construction party settlement audit to review and decide whether to re-audit as appropriate; (5) The procedures for changing the project content are incomplete; (6) the project construction information is not perfect, etc. Without the final financial accounts of the project, the total investment of the project cannot be determined, and the uncertainty of the total investment will inevitably affect the government's payment. 2. Project operation and maintenance costs are unaudited If the social capital party has not budgeted the project operation and maintenance costs in advance and has not been audited afterwards, or if the project operation and maintenance content has changed significantly and the social capital party still applies for payment under the project contract, it is obviously difficult for the government party to fully pay the contract. 3. The project did not do performance evaluation The government did not organize the performance evaluation of the project operation and maintenance in a timely manner. Given that performance evaluation is the basis of project payments, I .e., PPP projects need to strictly implement the pay-for-performance principle, there are procedural obstacles to project payments without performance evaluation. 4. The design of the project payment (return) mechanism is unreasonable. The design of the project implementation plan and the project contract's payment (return) mechanism for the project is not in line with the actual project. For example, the project return mechanism designed by some urban-rural sanitation integration or urban-rural sewage treatment integration projects is feasibility gap subsidy. As the user payment part (garbage disposal fee or sewage treatment fee) has the nature of similar administrative charges, the implementation plan is usually designed to be collected by relevant government departments. If the user payment income actually collected by relevant government departments is insufficient, the government budget only includes the gap subsidy part because the project return mechanism is feasibility gap subsidy, therefore, even if the government is willing to make up the shortfall in user-paid income, it cannot be included in the budget due to the project return mechanism. For example, some packaging projects are designed to be paid by the government only after all the projects enter the operation and maintenance period, but some sub-projects will be completed ahead of schedule and enter the operation and maintenance period. For example, each road in the municipal road project will be completed, accepted and put into use one after another. In this case, even if the government is willing to pay according to the actual situation, the government payment cannot be included in the annual budget due to project design reasons. However, if the government does not pay according to the actual operation and maintenance, then the relevant operation and maintenance costs can only be included in the construction cost, which may lead to the total investment of the project is over-estimated. Total investment of (II) projects The total investment of the project is a common phenomenon in PPP projects. There may be many reasons for the over-generalization of the total investment of the project, among which the social capital is usually caused by poor project organization and management, such as unqualified quality rework, material and labor cost increase caused by construction delay and other factors; the government is usually caused by project content adjustment or design change and other factors; in addition, as mentioned above, there may be cases where the sub-project of the packaged project is completed and accepted in advance and enters the operation and maintenance period, and the government cannot pay for the operation and maintenance, the relevant operation and maintenance fees can only be included in the construction cost resulting in the total investment of the project being over-estimated. If the responsibility for over-generalization of the total investment of the project can be solved according to the project contract, the normative problems of the project caused by the change of the total investment of the project may affect the subsequent operation of the project. According to the Ministry of Finance "on further strengthening the government and social capital cooperation (PPP) demonstration project standard management notice" (financial [2018] 54) requirements, for the demonstration project of the total investment of major changes, to deal with the project implementation plan, value for money evaluation report, financial affordability demonstration report, procurement documents, project contracts and other corresponding adjustments and changes. Although the notice is aimed at demonstration projects, according to its basic spirit, it should by extension be applicable to all PPP projects. However, the problem is that because the above notice does not further explain the "significant change", different understandings may lead to different results. Some local documents require that the project should withdraw from the project management database if the feasibility study report, project approval, implementation plan, value for money evaluation report, financial affordability demonstration report, procurement documents, project contract, etc. are adjusted and changed accordingly due to major changes in the core boundary conditions such as cooperation content and total investment. However, due to uncertainty as to what is meant by "major changes", many over-the-top projects can only be put on hold at present. No operation and maintenance content for (III) project Some PPP projects actually have no operational content. Such as shed reform resettlement houses, museums, archives, party history museums, exhibition halls, libraries, public hospitals, public schools, government affairs centers and other projects, the "Implementation Plan" usually takes property management services as the content of project operation and maintenance, but according to my country According to the "Property Management Regulations", the main body of property management services should be determined by the owner, so the social capital is not naturally the main body of project operation and maintenance. Moreover, the actual operation and maintenance subject of most projects is indeed not the social capital side. In the event that the social capital party is unable to participate in the property management services of the above-mentioned project, the project lacks other elements that can be operated and maintained by the social capital party, so the above-mentioned project actually has no operation and maintenance elements. Insufficient revenue from user fees for (IV) projects In the early storage of the local integrated pipe corridor project, due to the lack of underground penetration capacity of the pipe corridor within a certain geographical area and the high cost of entering the corridor, the pipe corridor was not actually put into use after it was built, that is, there was no corresponding pipe network into the corridor. However, in order to maintain the sustainable and daily safety of the pipe gallery throughout its life cycle, the social capital side also needs to maintain it on a daily basis. This would result in only maintenance costs and no corresponding operating income, I .e., zero user fee income for the project. Since the project implementation plan usually designs a considerable user fee income for the utility tunnel, the project will not be sustainable due to the imbalance of income and expenditure unless the project payment mechanism is adjusted or the utility tunnel project is adjusted out of the project package (in the case of packaging). In addition, as mentioned above, in the project of integration of urban and rural sanitation or integration of urban and rural sewage treatment, if the project return mechanism is designed as feasibility gap subsidy, then the user's paid part such as garbage treatment fee, sewage treatment fee, etc. will usually have insufficient income-the reasons may include inaccurate financial calculation, adjustment or cancellation of charging items or standards, etc, I won't repeat it here-and this risk obviously cannot be simply allocated to the social capital side. In this way, the above situation will lead to the same situation as the above-mentioned total investment of the project, that is, the project should be adjusted or returned to the warehouse or temporarily put on hold. (V) project performance management is not standardized Performance management includes the design and adjustment of performance evaluation indicators, the preparation of performance evaluation work programs, performance monitoring, performance evaluation, and the application of performance evaluation results, rather than simply performance evaluation and application of results. The performance evaluation indicators of some projects are seriously divorced from the actual situation of the project but are not adjusted, resulting in a mere formality of performance evaluation. Some projects have introduced an expert review mechanism in the performance evaluation work plan when the performance evaluation results are opposed, but they have not further clarified the expert selection mechanism and review organization process, resulting in the expert review mechanism being useless. However, setting the expert review mechanism as the pre-procedure of the above-mentioned dispute resolution mechanism affects the timely making of project performance evaluation results. Some local governments have a one-sided understanding of the basic principle of project payment according to efficiency, believing that there is no need for performance evaluation if the project does not pay, so they openly do not evaluate the project performance on the grounds that the project does not pay (as mentioned above, there is a situation that the government does not pay in time for PPP projects). Other local governments use the reason of saving expenses related to performance evaluation, under the condition that the government pays quarterly in the project contract, the performance evaluation is organized every six months or once a year. The performance evaluation cycle does not match the payment cycle, and the payment according to the efficiency cannot be effectively implemented. (VI) project information is not perfect The standardized operation of the project is the basis for the improvement of project storage information. As mentioned earlier, there will be inconsistencies between the total project investment, project operation and maintenance content, project return mechanism, etc. in the actual implementation of the project and the information in the preparation phase. According to the existing policies, major changes in the project need to be regulated through adjustment or treated as returned to the warehouse. However, the existing policy is not further clarified as to what constitutes a major change; therefore, many of the projects with the above problems are currently on hold, neither adjusted nor treated as returned. Based on this, the project storage information can only be temporarily shelved and cannot be improved in time. Adjustment Path of 2. PPP Standard Development (I) timely specification rectification According to the existing policy can regulate the rectification timely organization rectification. For example, if the project performance management is not standardized, it should be organized and carried out in a timely and standardized manner. If the government does not pay in time, it should improve the necessary procedures in time and fulfill the payment obligation according to the contract. If rectification cannot be regulated according to existing policies, rectification shall be made on the basis of adjusting existing policies or introducing new policies. For example, if the project construction content is changed, the total project investment is over-generalized, the project operation and maintenance content is adjusted, and the project return mechanism does not conform to the actual project, etc., through adjusting the existing policies or issuing new policies, it is clear under what circumstances can be rectified and under what circumstances should be returned to the warehouse. For the timely adjustment of receipt information that can be rectified by adjusting receipt information, rectification is completed. (II) decisively return to the warehouse If it violates the basic principles of PPP and cannot be rectified, it shall be directly returned to the warehouse. For example, projects (sub-projects) without actual operation and maintenance content, such as shed reform resettlement houses, museums, archives, party history museums, exhibition halls, libraries, public hospitals, public schools, and government affairs centers, belong to BT projects. If the above items are operated separately, they will be processed directly as warehouse return; if they are packaged, the relevant sub-items will be adjusted to warehouse-out on the basis of adjusting the project warehouse-in information. If it does not violate the basic principles of PPP, but should be returned to the warehouse according to the policy requirements, it shall be returned to the warehouse as required. For example, the above-mentioned major changes in the project, through the adjustment of existing policies or the introduction of new policies, still do not meet the requirements of the specification should be returned to the library, according to the return of processing. (III) Improve Policy Guidelines PPP is still in the stage of exploration and development in China, and many problems can only be gradually reflected through the practice of project operation, especially in the implementation stage. According to the foregoing, some problems are caused by the irregular operation of the project, while others are caused by the imperfection of existing policies. For example, Caijin [2018] No. 54 requires that projects with major changes such as the total investment of the project should be rectified by adjusting the corresponding storage information, but it is not clear what is meant by "major changes", resulting in some changes in the project can be rectified by adjusting the storage information or returned to the warehouse at a loss as to what to do; for another example, the Ministry of Finance's Guidelines for the Performance Management of Government-Social Capital Cooperation (PPP) Projects has introduced an expert review mechanism for objecting to the results of performance evaluation, but the selection mechanism of review experts, such as the number of expert groups, the professionalism and level of expert group members, and the allocation ratio of experts between the government and social capital, is not clear, in addition, the organization process of expert review, such as who can initiate expert review by the government and social capital, how to deal with it when the government does not initiate or select experts, the arrangement of expert review venues, the burden of expert review costs, etc., is not clear, resulting in the failure of the expert review mechanism to actually play a role. Based on this, in the context of PPP-related laws and regulations have not yet been issued, the State Council and relevant departments need to sum up experience in a timely manner according to the operation practice of PPP projects, and constantly improve relevant policy guidelines.

2021-12-23