Viewpoint... Analysis of the legal liability of the employer to issue a certificate of separation for the worker.

The so-called resignation certificate is called the certificate of termination or termination of the labor contract in the labor law. In practice, disputes caused by the employer's failure to issue a resignation certificate and the content that should be stated in the resignation certificate are common. It is the legal obligation of the employer to issue the resignation certificate of the 1.. The first paragraph of Article 50 of the "Labor Contract Law" stipulates: "The employer shall issue a certificate of termination or termination of the labor contract when the labor contract is terminated or terminated, and handle the transfer of files and social insurance relations for the laborer within 15 days. formalities." Article 24 of the "Regulations on the Implementation of the Labor Contract Law" stipulates: "The certificate of termination or termination of the labor contract issued by the employer shall specify the term of the labor contract, the date of termination or termination of the labor contract, the job position, and the number of years of work in the unit." The "shall be stated" in this article can be understood as "must be stated", which is a necessary clause of the resignation certificate, but is it not allowed to record other contents? There are different understandings in practice. The author thinks that the content of the certificate issued by the employer to terminate or terminate the contract should be judged from the nature of the subject of the employer's act. Both employers and workers are equal civil subjects in civil acts. According to the general principle of civil acts of "freedom without prohibition by law", although the "Regulations on the Implementation of the Labor Contract Law" stipulates that employers issue the termination or termination of labor contracts. The content of the certificate, but there is no prohibition on the relevant matters issued by the employer to terminate or terminate the labor contract. Therefore, it does not violate the provisions of laws and regulations for the employer to specify the reasons for the termination of the contract in the certificate of termination or termination of the labor contract. The first paragraph of Article 50 of the "Social Insurance Law" stipulates: "The employer shall promptly issue a certificate of termination or termination of the labor relationship for the unemployed, and notify the list of the unemployed within 15 days from the date of termination or termination of the labor relationship. Social insurance agency." In practice, many employers do not issue resignation certificates because the workers still have outstanding matters and have not yet been handed over clearly. Can the employer defend against this? According to the above provisions, it is the legal obligation of the employer to issue a resignation certificate, and whether the worker is clearly handed over is not a prerequisite for the employer to issue a resignation certificate. Therefore, the employer cannot refuse to issue a resignation certificate on the grounds that the worker has outstanding matters. 2. the legal liability of the employer for not issuing the resignation certificate There are two legislative purposes for the employer to issue a resignation certificate: one is the requirement for the reemployment of workers, and the other is the need for workers to register for unemployment. Article 89 of the "Labor Contract Law" stipulates: "If the employer violates the provisions of this law and fails to issue a written certificate to the laborer to terminate or terminate the labor contract, the labor administrative department shall order it to make corrections; if damage is caused to the laborer, it shall be liable for compensation." If the employer does not issue a resignation certificate to the laborer in accordance with the regulations, it may prevent the laborer from re-employment, and may also cause the loss of the laborer's unemployment insurance benefits. If the employer causes damage to the laborer, it shall be liable for compensation in accordance with the law. In practice, there are two main types of compensation disputes caused by the employer's failure to issue a resignation certificate: one is to compensate the worker for the loss of wages caused by the lack of a resignation certificate, and the other is to compensate the worker for the loss of unemployment insurance benefits. Loss of wages due to (I) non-employment Article 91 of the "Labor Contract Law" stipulates: "If an employer recruits a worker whose labor contract with other employers has not yet been terminated or terminated, and causes losses to other employers, it shall bear joint and several liability for compensation." In practice, most employers require new employees to provide proof of separation based on risk control requirements. If the employer does not issue a separation certificate to the worker, it may affect the employment of the worker and there is a risk of liability. Loss of (II) unemployment insurance benefits The second and third paragraphs of Article 50 of the Social Insurance Law stipulate: "An unemployed person shall go through unemployment registration at a designated public employment service agency in a timely manner with a certificate of termination or dissolution of labor relations issued by his or her unit. The unemployed person shall go through the formalities of receiving unemployment insurance benefits at a social insurance agency with his or her unemployment registration certificate and personal identity certificate. The period for receiving unemployment insurance benefits shall be calculated from the date of unemployment registration." Article 19 of the Ministry of Human Resources and Social Security's "Several Provisions on the Implementation of the the People's Republic of China Social Insurance Law" (Order No. 13 of the Ministry of Human Resources and Social Security) stipulates: "If the employer refuses to issue a termination or termination certificate to the employee when terminating or terminating the labor contract, resulting in the employee being unable to enjoy social insurance benefits, the employer shall be liable for compensation according to law." The certificate of termination or dissolution of the labor relationship issued by the employer is a necessary condition for the worker to register for unemployment. Without a resignation certificate, workers may not be able to enjoy unemployment insurance benefits, and the employer shall bear the corresponding liability for compensation.

2021-12-01

Viewpoint | Criminal procedure trial remote video testimony system

The standardized operation of remote video testimony cannot be separated from the guarantee of three technical elements: personnel, material and technology. Although the economic development gap between the eastern and western regions of China is large, resulting in the uneven development level of network technology and the inconsistent construction progress of Internet courts, under the condition that the existing software and hardware equipment can effectively support remote video testimony, the space for the combination of remote video testimony and network information technology should be further improved, this paper will describe how to make remote video testimony more standardized and systematic from three aspects: perfecting the intelligent application mechanism of remote video testimony, establishing a fixed and mobile remote video testimony mode, and perfecting the standard mechanism of audio and video data storage, so that criminal proceedings participants and the public will gradually accept the remote video testimony method, and realize the leap from quantitative change to qualitative change in the crucial stage of "comprehensive coverage and gradual improvement" of remote video testimony. (I) and Improve the Intelligent Application Mechanism of Remote Video Testimony First of all, the electronic record of testimony is the basis and premise of intelligent testimony. The establishment and improvement of the synchronous generation mechanism of witness testimony along with the case file is inseparable from the "thousand-lamp mode" of paperless testimony in the whole process. Only by implementing the pre-identification of testimony (confirming whether the information of the parties in the trial is qualified and accurate through third-party organizations, I .e. software suppliers, public security identification systems and other means), and quickly labeling cataloguing (implementing the "fast labeling instructions" fast ", only by realizing continuous labeling, staggered labeling, editing labeling, etc.), synchronous circulation of testimony records (synchronous generation and circulation of verbal evidence such as witness testimony and victim statement), one-click accurate return to justice, and full tracking, can the automation and intelligence of witness testimony, litigation service and judicial management be realized as soon as possible. Secondly, we should promote an all-round intelligent auxiliary case handling mechanism, promote the remote litigation diversion mode, cater to the principle of "fine handling of suspected cases (online and offline joint handling) and quick handling of simple cases (online and integrated process)" criminal litigation economy and proportionality, avoid the dilemma of "excessive procedures" for simple cases and "insufficient procedures" for complex cases, and thus realize a multi-value system of accurate diversion of different procedures. At the same time, we should actively develop a multi-functional testimony platform, improve voice recognition, risk warning, portrait generation, automatic inspection and other auxiliary functions to improve the quality of criminal trial. Finally, strengthen the supervision and management of intelligent testimony. Actively explore the "dual-seat" testimony mechanism (PC PC, MB, PC MB), keep the emergency contact number unblocked during the testimony process, do not replace the testimony, do not accept any form of assistance from any organization, and do not use virtual (virtual) background to prevent human operation of witnesses to give testimony. Standardize and improve the supervision system for testimony, and gradually establish a unified platform with real-time evidence storage, asynchronous cross-examination and efficient testimony (hereinafter referred to as the three certificates) to ensure that the testimony process leaves traces and data is safe and reliable. (II) the establishment of fixed, mobile remote video testimony mode Explore the establishment of a "point-to-face" remote video testimony model. As mentioned above, on the basis of establishing diversified remote video testimony sites, in order to prevent the content obtained through the "three certificates" from being deleted, embezzled and intercepted, it is not suitable to use the external network for online testimony for a long time. Therefore, in judicial practice, the matter establishes a fixed "point" (court) to "face" (notary office, procuratorate, law firm, residence, fair unit, etc.) remote video testimony mode through encrypted network channels and separate operation of internal and external networks. In short, a remote video testimony system is set up between public security organs and other organs nationwide, so that witnesses can choose the nearest place to testify, so that judicial personnel can conduct remote video questioning and cross-examination of witnesses in the same city or other places in this organ, breaking the time and space restrictions and reshaping the testimony mode. In addition, while the remote video testimony system is perfect, organs at all levels should actively try to establish remote video testimony studios to integrate data encryption, transmission speed, coverage and other aspects through virtual private network (VPN). Of course, in order to avoid the possibility of "weakening the antagonism of court hearings", testimony studios should also be hung with national emblems, set up special split-screen displays, supervisors seats, timing devices, etc. After the completion of the testimony procedure, the electronic and paper testimony transcripts and audio and video recordings of the testimony shall be transmitted or mailed to the court. Of course, before the construction of facilities in fixed places such as testimony studios is not yet perfect and mature, it is also possible to vigorously promote litigation platforms such as "mobile micro-courts" or to jointly develop APP with special functions such as audio-visual recording, face recognition, remote video testimony, etc. (III) Improve the Standard Mechanism of Audio and Video Data Storage As electronic evidence, the acquisition, preservation and transmission of audio-visual materials for remote video testimony in criminal cases should set up relatively strict standard procedures, such as special examination of the electronic signature on the testimony transcript and prevention of personal information disclosure during transmission. At the same time, the electronic evidence generated after the completion of the witness's testimony should be numbered in the court system terminal in time, indicating the case attribute, production time, place and other relevant information. In the same criminal case heard by the court, all the evidence formed by multiple inquiries of a single or multiple witnesses should be clearly distinguished and classified, uniformly stored in the original folder, and sub-folders should be established as needed to facilitate later inquiries. In the process of importing (sending out) audio and video materials, check whether the contents of the files are consistent with the original data contents such as file materials, and pay attention to the types of video and audio formats (AVI, DAT, RMVP, MP4, AIFF, MPEG, etc.) formed by remote video testimony, because different formats correspond to different volumes, image quality, compression rates, standards, etc, this will affect the transmission speed, storage space and player selection of audio-visual materials. In order to avoid the transmission of video and audio electronic evidence between different organs, such as slow transmission and inability to play, a unified video and audio format and special player should be adopted between the court and the remote video testimony place. In addition, due to the vulnerability of the audio-visual data storage carrier itself and the high requirements for the storage environment, the "preservation" should not only stay at the technical level, but also pay attention to the management level. The relevant departments of the court should formulate the early warning and priority preservation mechanism of the storage scheme, create a good carrier storage environment, and avoid the irretrievable data caused by carrier corrosion. At the same time, the carrier maintenance is divided into "key" maintenance and "routine" maintenance. When the maintenance period expires, the relevant data will be removed from the "maintenance" range, the storage carrier indicators will be regularly detected, the risk limit value will be set, and the storage information will be migrated, copied and simulated (OAIS reference model) if necessary.

2021-12-01

Viewpoint | The mandatory exit mechanism of employee stock ownership in state-owned enterprises.

The reform of state-owned enterprises is a major strategic step for the central government to implement the policy of strengthening and increasing state-owned enterprises, which meets the objective needs of building a socialist market economy. Employee stock ownership can effectively increase the cohesion of enterprises and become an important part of the current round of mixed ownership reform of state-owned enterprises. Employee shareholding in state-owned enterprises involves a series of issues such as the company's equity structure, the daily management of employee equity and exit. In practice, the exit process of employee equity is more complex. Therefore, how to strike a balance between complying with laws, regulations and policies and ensuring the rights and interests of employees is not only related to the reform results of state-owned enterprises, but also related to the development of enterprises and the stability of the company's equity structure. An exit mechanism for employee shareholding. (I) classification According to the detailed rules for the implementation of the pilot work of employee stock ownership in state-owned enterprises in Shandong Province, the withdrawal of employee stock ownership includes voluntary withdrawal and compulsory withdrawal. The voluntary transfer mechanism is aimed at the situation where employees voluntarily withdraw from equity after the expiration of the lock-up period. Compulsory withdrawal is based on the basic principle of binding the interests of the pilot work of employee stock ownership in state-owned enterprises and fixing shares by post. When the position or status of an employee changes and no longer meets the conditions for holding shares, the mandatory withdrawal mechanism of employee stock ownership should be triggered to realize the change of post and stock and the withdrawal of shares. The forced withdrawal of employee stock ownership in (II) state-owned enterprises. Forced exit, also known as conditional forfeiture exit, refers to the loss of the original shareholding conditions, resulting in the loss of the employee's corresponding shareholding qualifications, thereby giving up the shares held. It can be roughly divided into two situations: one is job change. After the employee is transferred according to the requirements of the company, the new position does not apply to the employee stock ownership plan; the other is that the labor relationship between the employee and the company is terminated, and the original shares should be withdrawn. With regard to the compulsory withdrawal of employee stock ownership in pilot enterprises, Article (III) of Part IV of the opinions points out that if a shareholding employee leaves the company due to resignation, transfer, retirement, death or dismissal, the shares shall be transferred internally within 12 months. Two basic rules of compulsory withdrawal mechanism (I) Assignee 1, employee shareholding platform or company. 2. Eligible employees 3. Shareholders or management (II) exit price The Opinions point out that if it is transferred to a shareholding platform, qualified employees or non-public capital shareholders, the transfer price shall be determined through consultation between the two parties; if it is transferred to a state-owned shareholder, the transfer price shall not be higher than the audited net asset value per share of the previous year. The transfer of shares by employees of state-controlled listed companies shall be handled in accordance with the relevant provisions of securities supervision. (III) Forced Exit Classification 1, employee shareholding is not responsible for mandatory withdrawal. The triggering situation of normal employee resignation can be understood as the situation that the employee needs to quit due to the subjective fault of the employee, including:(1) formal retirement;(2) during the contract period, the employee loses the ability to work due to work injury or illness, quits the job and terminates the labor contract;(3) dies or is declared dead;(4) the company terminates the labor contract according to law due to incompetence;(5) The employee proposes to terminate the labor contract and does not join the competitor company within 2 years after the termination of the labor contract;(6) The company and the employee negotiate to terminate the labor contract;(7) The labor contract is terminated due to the transfer of the company;(8) The shareholding employee has other circumstances stipulated in the labor contract. If an employee involved in the shareholding withdraws due to a normal departure, the shareholding shall be withdrawn in one lump sum within a window of 12 months after the departure. 2, employee shareholding is responsible for mandatory withdrawal. A compulsory withdrawal is a situation in which the shareholding employee must withdraw from the shareholding due to a violation of the law, company regulations or due to the fault of the shareholding employee. The abnormal resignation of employees includes:(1) leaving the company without going through the resignation procedures;(2) engaging in similar competitive business with the company during or after leaving the company;(3) violating laws and regulations and company rules and regulations, the company terminates its labor contract according to law;(4) causing great economic losses to the company due to fault;(5) The shareholding employees have other violations stipulated in the labor contract. If an employee involved in a shareholding withdraws due to an abnormal separation, his shareholding must be withdrawn in full at one time when the abnormal separation situation is met. The exit price is not higher than the original purchase price. Three-strong exit operation process and practical dilemma solution (I) Force Exit Process 1, no responsibility forced exit process (1) No liability forced exit trigger event occurs. (2) Application or notice Depending on the triggering event, the shareholding employee shall submit a written application to the equity management institution or the equity management institution shall issue a notice of compulsory withdrawal of the equity ex officio. (3) Submission of materials For different situations of compulsory withdrawal without responsibility, the shareholding employee or the relevant entity shall submit different materials for withdrawal within a certain period of time, such as: if the shareholding employee resigns: a resignation letter, a resignation certificate and other documents shall be submitted to the shareholding management agency; If the shareholding employee dies or is declared dead: the successor or the person entrusted by the successor shall submit the death certificate or legal document and cooperate with the relevant formalities; If the shareholding employee needs to forcibly divide the property for personal reasons: if the shareholding employee needs to forcibly divide the personal property due to litigation, divorce and other reasons, relevant legal documents and agreements shall be submitted; Other circumstances in which the labor contract is terminated not due to the fault of the shareholding employee: submit the corresponding materials according to the specific circumstances. (4) Approval by the equity management agency (5) Determination of transferee shareholders and price (6) Complete the internal process (7) Sign the equity transfer agreement (including the time of payment of the transfer, the method of payment, etc.) and other agreements that need to be signed. 2. Responsible compulsory withdrawal process (1) The occurrence of a responsible mandatory withdrawal trigger event. (2) Notify and inform them of their obligation to cooperate When a responsible forced exit situation is triggered, the equity management agency shall issue a notice to the employee, which shall state the reasons for the employee's exit, the materials it should submit, and the work to be completed with the company. Depending on the circumstances of the withdrawal, the person who needs to withdraw is required to prepare the appropriate materials to submit to the company. (3) Implementation of the equity exit price in accordance with the provisions of the employee shareholding scheme (4) Complete the internal process Solving the Practical Dilemma of (II) Forced Exit 1, employee shareholding mandatory withdrawal from the validity of the articles of association provisions. At present, the policy of mandatory withdrawal of employee stock ownership is relatively general. Therefore, under the premise of not violating the "Company Law" and other laws and regulations, it is mainly based on the company's articles of association and the employee stock ownership plan formulated when establishing the employee stock ownership plan. The validity of the articles of association is usually based on the principle of not easily denying the validity of the articles of association in order to maintain the validity of the articles of association and the stability of the company's operation. When the formal elements of the charter are available, practice tends to affirm the validity of the employee's withdrawal clause. 2. Equity adjustment under special circumstances (no one takes over the equity, state-owned shareholders, non-state-owned shareholders and qualified employees inside and outside the platform are unwilling to accept or do not meet the requirements) If the employee's equity is forced to withdraw and the unqualified employee purchases, the employee shareholding management committee shall adjust it according to the actual situation until the company's registered capital is reduced. The methods of adjustment available to the Shareholding Management Committee are: (1) The nominee holding entity that plans to reserve equity is temporarily acquired for subsequent incentives; (2) Giving the platform a share repurchase function, whereby the shareholding platform buys back the shares, and the platform may use the repurchased shares as reserved shares for future incentives for employees; (3) Appropriate adjustment of employee shareholding conditions (e. g. relaxation of conditions) to allow employees who are willing to buy to buy; (4) Whether the state-owned shareholders and non-state-owned shareholders of the target enterprise are willing to buy, and if they still do not take over the main body, the capital will be reduced. Four Conclusion Most of the enterprises that adopt employee stock ownership focus on the entry of employee stock ownership in the early stage, but relatively ignore the design of the compulsory exit mechanism of employee stock ownership, which leads to the non-standard and unsmooth of the compulsory exit link in practice. Enterprises need to establish a more stable and objective mandatory exit mechanism in the employee stock ownership system to ensure the smooth progress of the mandatory exit of employee stock ownership and to ensure the full play of the advantages of the employee stock ownership policy of state-owned enterprises.

2021-12-01

Point of View | On the "Third Norms" to Contain Artists' Anomie Behavior -- Also Comment on the Disciplinary Measures in the "Administrative Measures for Self-discipline of Artists in the Performance Industry (Trial)"

In recent years, the phenomenon of well-known artists breaking the law and losing morality has repeatedly appeared in the newspapers, which has aroused widespread concern from all walks of life. Since 2014, the relevant competent departments of the state have issued a number of "ugliness restriction orders", aiming to curb the anomie behavior of artists, so as to make up for the lack of relevant legislation in the field of entertainment in China. In addition to the "rigid" system of "heteronomy" and "flexible" self-discipline measures, the author believes that from the perspective of "common law", we can try to construct and improve the "third norm", give full play to its special effect of "combining strength and softness", and help curb artists' anomie behavior. 1. what is the "third norm"? According to the author's opinion, the expression of "the third norm" was first put forward by Ms. Xu Xun, a well-known media law expert in China. She believes that the law is open, stable and strongly binding, but it is generally not focused on a certain industry, but has universal applicability, so its specific operability is slightly weaker; although professional ethics has varying degrees of operability, But it is basically not mandatory, which reduces the binding force; although policies, disciplines and experience have strong operability and binding force, they do not conform to the principle of the rule of law because of their weak openness, at the same time, its normative value is greatly reduced due to its instability. She proposed that the advantages of the above various normative forms can be absorbed, summarized and recombined to produce an open, industry consensus, clear content, relatively stable, written expression, strong operability and certain mandatory The industry standard can be called "the third norm" or "industry regulation". The "third specification" mentioned in this article is different from the general "industry standard". The latter is a general business standard for a specific field formulated and issued by industry associations or other competent departments according to the relevant specifications of the National Standardization Committee. The purpose is to standardize and unify the business without direct punitive content for violators. For example, the "Performance Ticketing System Service and Technical Specification" (WH/T 93-2021) issued by the Ministry of Culture and Tourism on July 19, 2021 and implemented on August 19, stipulates the technical requirements, functions, server management, communication protocols and data formats of interfaces such as the performance ticketing management system and ticketing sales system, and puts forward basic requirements for the data collection interface of performance ticketing data, it does not involve punitive provisions that violate the industry standards. China's entertainment industry pays more attention to the construction of general industry standards. According to the statistics of the "industry standard" part of the government information disclosure of the Ministry of culture and tourism, as of November 22, 2021, a total of 127 national level industry standards have been established, but there is no "third specification" in a complete sense ". 2. the "third norm" in the "measures for the self-discipline management of performers in the performance industry (for Trial Implementation)" On February 5, 2021, the China Performance Industry Association (hereinafter referred to as the "China Performance Association") issued the "Administrative Measures for the Self-discipline of Performers in the Performance Industry (Trial)" (hereinafter referred to as the "Administrative Measures"), which will be implemented from March 1. Article 1 of the "Administrative Measures" clearly stated the purpose of regulating the professional behavior of artists, that is, "in order to continuously improve the professional quality of entertainers in the performance industry (hereinafter referred to as'entertainers'), regulate the professional behavior of entertainers, and strengthen the self-discipline management of entertainers. Establish a good professional image of entertainers and promote the healthy development of the performance industry". The content of Article 1 also shows that the nature of the "Administrative Measures" is a "self-discipline" norm, which is another important measure for our country to curb artists' anomie behavior from the perspective of self-discipline. It is worth noting that although the "Administrative Measures" belong to self-discipline norms as a whole, there are also some mandatory norms, especially punitive measures, which can be classified as the "third norm. For example, Article 5 of the "Administrative Measures" stipulates that if an entertainer violates the practice norms, the China Performance Industry Association shall implement self-discipline and disciplinary measures within the scope of its practice in accordance with these Measures. Article 6 also stipulates the basic principles for the implementation of self-discipline and disciplinary measures, that is, the implementation of self-discipline and disciplinary measures for entertainers who violate the norms of practice shall follow the principles of objectivity, impartiality, openness and transparency, fairness and prudence, adhere to the combination of education and punishment, adapt the circumstances of violations to the disciplinary measures, and carry out work in accordance with the rules and regulations on the basis of facts. The second chapter of the "Administrative Measures" "Practice Standards" expresses the "should be" and "do not do" of entertainers from both positive and negative aspects. In view of the fact that the "do not do" behavior is closely related to the artist's anomie behavior and is the "Administrative Measures" The applicable behavior objects of disciplinary measures need to be analyzed. Article 8 of the "Administrative Measures" stipulates 15 kinds of "do not do" behaviors, mainly illegal behaviors, supplemented by unethical behaviors; while listing typical behaviors, it is also supplemented by unethical and illegal "bottom-up" clauses. Strong coverage. From the perspective of the two more representative "bottom-up" clauses, there is no simple "one size fits all" approach, but it is screened according to the situation. For example, item 14 of Article 8, "other circumstances that violate ethics or social public order and good customs and cause serious adverse social impact", especially emphasizes the condition of "causing serious adverse social impact"; Item 15, "other circumstances expressly prohibited by laws and administrative regulations", emphasizes the hierarchy of "laws and administrative regulations" and the two key elements of "express prohibition. These two provisions also show that we should adhere to the principle of examination when determining the "do not do" behavior in the "management measures", so as to avoid arbitrarily expanding the "anomie behavior. The "Administrative Measures" established a "moral construction committee" composed of relevant personnel inside and outside the industry, which enhanced the credibility of disciplinary measures. Article 15 of the "Administrative Measures" stipulates four disciplinary measures that can be taken, including "conducting criticism and education", "disqualification of participating in various related evaluations, commendations, rewards, and subsidies in the industry", and "according to the severity and severity of the circumstances of the entertainer's violation of the professional norms. Degree of harm, the implementation of 1 year, 3 years, 5 years and permanent and other different degrees of industry boycott" "in cooperation with other industry organizations to implement cross industry joint punishment". The first two are "soft" measures, while the latter two are "hard" measures. The four measures can be implemented separately or in combination. The "hard" measures against the behavior of "do not do" are mandatory and belong to the "third norm" in a sense, which not only restricts the performance rights of anomie artists, but also restricts the relevant rights of publicity and promotion, which plays an irreplaceable role in curbing the anomie behavior of artists. On August 15, 2021, the China Performing Arts Association issued the first "Disciplinary Announcement" after the implementation of the "Administrative Measures": "This Association will morally reprimand the improper behavior of actor Zhang Zhehan in visiting the Yasukuni Shrine, and in accordance with the" Performing Arts in the Performance Industry "According to the provisions of the Administrative Measures, member units are required to boycott their practice." On October 22, the China Actors Association once again issued a "disciplinary notice" to boycott Li Yundi, who committed illegal prostitution. In addition, Articles 17 and 18 of the "Administrative Measures" also specifically stipulate the disciplinary procedures, especially granting the rights of anomie artists to defend and return requests, forming a relatively complete disciplinary and relief procedure. On the whole, although the "Administrative Measures" belongs to the category of self-discipline norms as a whole, it has added a "third norm" that is mandatory for punishment, and the disciplinary procedures are fair and reasonable, and the disciplinary measures are in line with the principle of proportionality, and there is no collective resistance in general industries. The problem of violating the anti-monopoly law. 3. extensive construction and improvement of the industry-wide "third norms" The "Administrative Measures" of the China Performing Arts Association is only applicable to specific artists, that is, "performers engaged in music, drama, dance, folk art, acrobatics and other forms of live theatrical performances in China", although its applicable "scope of employment" Relatively broad, but still cannot cover all artists. In addition to the China Performance Association, there are other industry associations related to artists in China. In order to implement the requirements of the "Notice on Carrying out Comprehensive Management Work in the Cultural and Entertainment Field" issued by the Central Propaganda Department in September 2021, and give full play to the role of industry punishment, the "third norm" for all artists' behaviors should be drafted and implemented as soon as possible in the entire industry. Make up for the lack of legislation in the cultural and entertainment field, and give full play to its advantages of strong pertinence, good operability, stability and compulsion, as soon as possible to effectively curb the high incidence of illegal artists such as misconduct.

2021-11-30

Viewpoint | "Persuade You to Drink More": How to Party and Drink Without Responsibility?

Cause of action Right to health disputes Brief facts of the case Plaintiff Li mou, who lives in other places all the year round, went to a certain place to attend the wedding due to his friend's marriage. after that, he and the 5 defendants had dinner in a hotel on March 1, 2020, which ended at about 23 o'clock. On the way back to the hotel, the plaintiff Li mou and the defendants Wang mou and Xie mou were together to urn, the plaintiff accidentally fell to the ground and fell into a coma. the accompanying Wang mou and Xie mou called 120, and the plaintiff was immediately sent to the hospital for emergency treatment. the emergency diagnosis was "preliminary diagnosis: acute alcoholism, acute closed craniocerebral injury", and the admission diagnosis was "1. acute closed craniocerebral injury; multiple brain contusion and laceration, left frontal lobe contusion and intracerebral hematoma, diffuse axonal injury, traumatic subarachnoid hemorrhage, scalp contusion, frontal fracture, epilepsy, cerebral hernia; 2, acute myocardial infarction; 3, hemorrhoids", the external cause of injury and poisoning is "accidentally leaning back on the ground, injuring the head". In this case, the defendant Wang is the organizer of the party, Li and Xie usually work and live in other places, Wang, Li and Xie are in close contact, and the other three female defendants are not familiar with the plaintiff Li. In the course of the lawsuit, the plaintiff entrusted the appraisal institute according to law to identify his disability grade, the number of nurses, the duration of nursing and the duration of nutrition; and entrusted the judicial appraisal institute for mental illness according to law to identify his mental disability grade, the number of nurses, the duration of nursing and the duration of nutrition. Analysis of referee rules Co-drinking behavior is a collective activity organized between co-drinkers, and co-drinkers have appropriate reminders, care, protection, notification and other duty of care. In combination with this case, first of all, as a person with full capacity for civil conduct, the drunk casualty should foresee the harmful consequences of drinking and control his own behavior when drinking, but he still drinks more than he can bear, and then the plaintiff should bear the absolute main responsibility (generally 70%-80%). Second, the responsibility comes from the obligation, the obligation comes from the statutory or agreement. The obligation of safety and security is a kind of legal obligation. When drinking at a party, the organizer can not be exempted from liability in the case of accidental injury and death after drinking because of its special role in the party banquet. The organizer shall have the duty of care for the personal safety of the participants of the party banquet, and shall have the obligation to provide necessary assistance, care and escort. The specific obligations are as follows: the organizer has the obligation to consider and grasp the general situation of each person, and according to the prior understanding of each person, take the initiative to judge the physical characteristics of the participants, timely remind and advise everyone to drink properly, if there is excessive drinking, give necessary assistance and proper care. If the plaintiff feels unwell after drinking at the party, the organizer is obliged to take timely, reasonable and necessary measures. For example, according to the experience of ordinary people to judge the physical condition of peers, if the body out of control, should also arrange effective ways to ensure safe home, if necessary, should also be sent to a doctor for observation. Party organizers: absolute secondary responsibility (10%-15%) Third, ordinary co-drinkers cannot stay out of it either. Drinking itself has a certain risk, which will reduce people's control and judgment. Drinking together means that companions let themselves be in a dangerous situation. Companions are generally relatives and friends. It is precisely because of trust and closeness that they drink together. Therefore, based on the principle of good faith, the first act of joint participation in drinking gives rise to the obligation of mutual assistance, and ordinary co-drinkers are also obliged to provide necessary help and support. General co-drinkers: general liability (2%-5%) Fourth, the three female defendants in this case are not liable for compensation due to special circumstances. Defendant women 1 and 2 did not drink alcohol and did not act to persuade them to drink. Defendant female 3, who is not familiar with the plaintiff, did not drink alcohol, did not persuade her to drink and left the table early. The plaintiff's damage consequences do not have a direct causal relationship with the three female defendants, and the three female defendants are not at fault and should not bear civil liability in this case. Extended interpretation 1. attending the party, the organizers and participants of the party signed the "Safety responsibility commitment" and "exemption Agreement". Can the organizers and drinkers be exempted from liability? Article 8 of the Civil Code Civil subjects engaged in civil activities shall not violate the law, public order and good customs. Article 153 of the Civil Code Civil juristic acts that violate the mandatory provisions of laws and administrative regulations shall be null and void. However, the mandatory provisions do not cause the civil juristic act to be invalid. Civil juristic acts that violate public order and good customs are invalid. Article 506 of the Civil Code The following disclaimers in the contract are invalid: (I) causing personal injury to the other party; (II) cause damage to the other party's property due to intentional or gross negligence. According to the above legal provisions, we can clearly conclude that these "exemption clauses" signed by co-drinkers are invalid because they violate the mandatory provisions of our laws and regulations. Since the law stipulates the safety guarantee obligation of the organizer, the organizer has the obligation to take certain measures in advance to prevent the damage, such as asking about the physical condition in detail, mobilizing family members to actively participate in the care, actively preparing necessary drugs, seeking professional help, etc., instead of using the agreement as a shield. By signing a disclaimer, the organizers try to evade responsibility not only does not conform to the general moral standards of the society, but also violates the mandatory provisions of the law. Therefore, even if the co-drinker signs the so-called "Party Drinking Responsibility Letter", if the co-drinker suffers injury or death after drinking, and the co-drinker is at fault, he still needs to bear the corresponding responsibility and is not exempt from liability by signing an exemption agreement. 2. what acts and circumstances, party drinking to bear legal responsibility? 1, due to alcohol induced disease, disability and even death Knowing that drunk people cannot drink alcohol, they cause heart disease, high blood pressure and other diseases to cause disability and death due to drinking; If the drinker induces the disease without knowing it, the drinker does not need to bear the fault liability, but the principle of fair responsibility should also bear the liability for compensation. That is to say, the drinker should bear the responsibility regardless of whether he knows that the other party cannot drink, but the former must bear greater responsibility. 2. Forced drinking In the process of drinking, there are obvious compulsive behaviors of persuading, such as verbal coercion, stimulation of the other party, forced drinking, etc., for the damage results, the persuading person should bear the corresponding liability for compensation. 3, drunk driving, bathing, strenuous exercise is not discouraged In the case of knowing that the other party is drunk driving and does not dissuade it, once the damage results occur, the co-drinker must bear certain responsibilities. If the drunken person does not listen to the dissuasion, the co-drinker can be relieved or exempted. However, if the co-drinker knows that the drunken person drinks too much, is incoherent and delirious, the co-drinker should be dissuaded from drinking, and if the accident occurs due to the failure to dissuade him when he can be dissuaded, he should also bear the corresponding responsibility. 4. Failure to deliver the drunk safely If the drunken person has lost or is about to lose control of himself, is unconscious and cannot control his own behavior, the co-drinker has a certain duty of guardianship at this time. If the co-drinker does not take the drunk to the hospital or let it arrive at a place of care (such as home), if an accident occurs at this time, the co-drinker shall bear the corresponding liability.

2021-11-30

Viewpoint | Interpretation of issues related to corporate restructuring of enterprises owned by the whole people

The corporate restructuring of state-owned enterprises is an important decision and deployment of the Party Central Committee and the State Council on deepening the reform of state-owned enterprises. After years of in-depth reforms, the corporate restructuring of state-owned enterprises in my country has now fully covered more than 90%, which has effectively promoted the separation of state-owned enterprises from government. The corporate governance structure is gradually improving. As the main organizational form of state-owned enterprises, enterprises owned by the whole people actively respond to the requirements of the central to local corporate system reform, and promote the continuous deepening of the reform of state-owned enterprises. This article is based on the "the People's Republic of China Enterprise State-owned Assets Law", "the People's Republic of China Company Law" (hereinafter referred to as the "Company Law"), "Enterprise State-owned Assets Transaction Supervision and Administration Measures", "Enterprise State-owned Property Rights Transfer Management Interim Measures", "Shandong Province State-owned Property Rights Transaction Management Measures," Implementation Opinions on Further Regulating the Restructuring of State-owned Enterprises "(Guo Ban Fa Fa [2005] No. 60)," notice on the Implementation Plan for the Restructuring Work (Guo Ban Fa [2017] No. 69), and the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses. List the main legal basis and normative policy document guidelines, and discuss the relevant practical issues in the process of corporate restructuring of enterprises owned by the whole people. 1. the corporate restructuring of enterprises owned by the whole people An enterprise owned by the whole people refers to a commodity production and business unit whose property belongs to the whole people, operates independently in accordance with the law, is responsible for its own profits and losses, and is an organizational form of state-owned enterprises in a broad sense. The target of the corporate system reform is enterprises owned by the whole people. According to the requirements of the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Reform of Central Enterprises", all enterprises owned by the whole people that operate normally should be restructured into limited liability companies registered in accordance with the "Company Law" Or joint stock limited companies, accelerate the formation of effective checks and balances of corporate governance structure and flexible and efficient market-oriented operating mechanism, therefore, enterprises owned by the whole people, cultural and financial enterprises owned by the whole people, if there are no other special regulations, all need to implement corporate reform. The reform of the corporate system of enterprises owned by the whole people should be carried out in accordance with the conditions of the enterprise, in line with the actual operation of the enterprise, and effectively promoted. Enterprises owned by the whole people that are difficult to be reformed due to suspension of production and business, revocation of business license, etc., can directly implement reorganization, integration or liquidation and cancellation in accordance with the reform requirements of inefficient and invalid asset disposal. In addition, it is agreed that after the parent company controls a number of subsidiary enterprises owned by the whole people, the parent company can also adopt the "sub-reform" method to cancel the subsidiary enterprises in accordance with the law and set up branches to undertake the business, assets and personnel related to the atomic enterprise. General process of 2. corporate restructuring In accordance with the provisions of the Company Law and the relevant requirements of industrial and commercial registration, enterprises owned by the whole people are transformed into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The specific process is as follows: (1) According to the specific conditions of the restructured enterprise (the basic situation of the restructured enterprise, financial status, operating status, personnel and social security, enterprise qualifications, land and real estate, etc.), weave a restructuring plan. If the resettlement of enterprise employees is involved, the employee resettlement plan shall also be formulated; (2) Formulate the articles of association of the company (for state-owned enterprises transformed into limited liability companies or joint stock limited companies, the articles of association shall be formulated in accordance with the State-owned Assets Law of Enterprises, the Company Law and relevant policy documents); (3) reporting to the registration authority the change of the name of the enterprise after the restructuring; (4) The restructuring plan shall perform internal decision-making procedures, and the employee placement plan shall be reviewed and approved by the employee representative assembly or the employee assembly; (5) To carry out the procedures for approving the restructuring plan and the articles of association of the company; (6) involving the liquidation of nuclear capital, asset assessment and other work, in accordance with the relevant provisions; (7) for industrial and commercial change registration; (8) Handling property rights, bank account changes and qualification succession, employee social security succession, labor contract succession or change, etc. Relevant contents of 3. restructuring plan When an enterprise owned by the whole people is transformed into a corporate enterprise, it is necessary to formulate a restructuring plan to clarify the organizational form and assets of the enterprise after the restructuring. The main contents of the restructuring plan include the following items: (1) Basic information of the enterprise; (2) The mode of restructuring (the organizational form of the enterprise after the restructuring and the establishment of the property right structure, etc.); (3) Basic information of the enterprise after the restructuring (name, domicile, legal representative, amount of registered capital and basis for determination, business scope, etc.); (4) Post-restructuring corporate governance arrangements (the establishment of shareholders' meetings, boards of directors, supervisory boards or supervisors and their related rights and obligations, etc.); (5) Employee placement; (6) Disposal of claims and debts; (7) Disposal of State-owned allocated land; (8) Party organization setup; (9) The succession of business qualifications. The above contents are the general contents of the restructuring plan, which should be determined in combination with the actual situation of restructuring into a wholly-owned subsidiary of a state-owned and state-owned enterprise holding enterprise and a diversified equity enterprise. Approval procedures for 4. restructuring plans The principle of examination and approval of the reform plan of the corporate system of enterprises owned by the whole people is to strictly control, earnestly and steadily promote the reform of the corporate system in an orderly manner, and prevent the loss of state-owned assets. According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), the restructuring of central enterprise groups into wholly state-owned companies shall be approved by the institutions authorized by the State Council to perform the duties of investors; The restructuring into a diversified equity enterprise shall be submitted to the State Council for approval in accordance with the procedures. The restructuring of a subsidiary enterprise of a central enterprise shall, unless otherwise specified, perform the examination and approval procedures in accordance with the relevant internal regulations of the enterprise. In accordance with the principle of "who contributes, who is in charge, and who is responsible", after being reported to the provincial bureau for filing and approval, the competent unit will examine and approve the enterprise restructuring plan. How to determine the registered capital involved in the restructuring of 5. companies? According to the "Notice of the General Office of the State Council on Printing and Distributing the Implementation Plan for the Corporate System Restructuring of Central Enterprises" (Guo Ban Fa [2017] No. 69), enterprises owned by the whole people are restructured into wholly state-owned companies or wholly-owned subsidiaries of state-owned and state-controlled enterprises. The audited net asset value of the previous year is used as the basis for determining the registered capital in the registration of industrial and commercial changes. Does the 6. need to be restructured into a corporate enterprise? When enterprises owned by the whole people implement the reform of the corporate system, they shall carry out the liquidation of assets and capital in accordance with the relevant provisions. Among them, for the implementation of enterprise accounting standards, the establishment of a standardized financial system, the most recent annual financial statements audited by an intermediary and issued a standard unqualified audit report, the enterprise to the restructuring plan approval unit for approval, may not carry out the liquidation of nuclear capital. If the competent department has other provisions, they shall be implemented in accordance with the provisions. Does the 7. restructuring plan need to be passed by the workers' congress? According to the relevant provisions of the "Enterprise State-owned Assets Law," if the restructuring of an enterprise involves the resettlement of employees, an employee resettlement plan shall be formulated and approved by the employee representative assembly or the employee assembly. 8. lawyers in the corporate restructuring. According to the Operational Guidelines for Lawyers of the All-China Lawyers Association for the Restructuring of State-owned Enterprises and Related Corporate Governance Businesses, lawyers accept the entrustment of restructured enterprises to undertake the restructuring of state-owned enterprises and conduct due diligence. In the Legal Due Diligence Report, the following matters should generally be involved: (I) the verification of "establishment, evolution and change; (II) verification of the "basic operating structure; (III) the verification of "equity situation; (IV) verification of "tangible assets" (V) the verification of the "land use rights and other intangible assets; (VI) the verification of the "major contracts" signed or related by the restructured enterprise; (VII) the verification of "major claims and debts" of the restructured enterprises; (VIII) the verification of "major legal disputes, administrative penalties, etc." involved in the restructuring of enterprises; Verification of the "basic situation of personnel" of the (IX) restructuring enterprise; Lawyers can also request the restructured enterprise and the investigated object to provide other relevant documents or information according to the different restructuring plan, restructuring plan, characteristics and requirements. In the process of corporate restructuring, enterprises owned by the whole people should standardize their operations in accordance with laws and regulations and relevant regulations on the restructuring of state-owned enterprises and the management of state-owned property rights, strictly and carry out the decision-making and examination and approval procedures, strengthen and improve the supervision and guidance of the restructuring process, and promote the corporate restructuring of enterprises owned by the whole people in accordance with the requirements of centralized and unified supervision of the state.

2021-11-30

Viewpoint | Real Estate Bankruptcy Administrator's Determination of Claims Enjoyable by Owners of Housing- (2021) Reflections on the Case of Supreme Law Min Re -99

Brief 1. of the case On May 24, 2017, Yibin Intermediate People's Court accepted the application of Chengdu Office of Great Wall Company to execute notarized creditor's rights documents such as Yinwu Company and Dingli Land, and sealed up the house involved in the case on June 5, 2017. On November 29, 2017, the Chengdu Office of Great Wall Company and Hengzhen Company signed a "Debt Transfer Agreement", and the Chengdu Office of Great Wall Company transferred the debt of this case to Hengzhen Company. On April 3, 2018, Yibin Intermediate People's Court ruled that the company was the executor of the execution case No. 156 of (2017) Chuan 15. During the execution, Feng Tianguo raised an execution objection on the grounds that he purchased the house involved in the case on January 9, 2017, demanding to stop the execution of the house. After review by the Yibin Intermediate People's Court, it ruled to suspend the execution of the mortgaged house involved in the case, but Hengzhen Company refused to accept it and filed a first-instance lawsuit with the Yibin Intermediate People's Court in accordance with the law. After that, the Yibin Intermediate People's Court ruled to continue the execution of the house involved in the case. Feng Tianguo refused to accept the above-mentioned civil judgment of the first instance made by the Yibin Intermediate people's Court and appealed to the Sichuan High Court, requesting to revoke the judgment of the first instance in accordance with the law and not to enforce the mortgaged house involved in the case. Feng Tianguo refused to accept the above-mentioned civil judgment made by the Sichuan Higher People's Court and applied to the Supreme People's Court for a retrial according to law, the judgment revoked the Sichuan Higher People's Court (2019) Chuanminzong No. 859 Civil Judgment and Sichuan Yibin Intermediate People's Court (2018) Chuan15 Minchu No. 181 Civil Judgment and rejected Hengzhen Company's claims. How to determine the creditor's rights enjoyed by the 2. real estate bankruptcy administrator. There are a large number of real estate bankruptcy cases, how to determine the housing debt holders to enjoy the claims is the administrator must face and solve the problem. Whether this problem is solved or not will inevitably affect the formulation of the later reorganization plan, the arrangement of the debt settlement plan and the planning of the investor's investment plan. Therefore, in combination with the civil judgment of the Supreme People's Court (2021) Supreme Law Minzai No. 99 case, the lawyer believes that when the real estate bankruptcy administrator determines the creditor's rights of the creditor with the house against the creditor, he should first examine whether the creditor with the house against the creditor can be excluded from the court's enforcement, and then confirm the ownership of the house involved by the creditor with the house against the creditor and the nature and amount of the creditor's rights. (I) the right holder can exclude the constituent elements of court enforcement. With reference to the provisions of the Supreme People's Court (2021) Supreme Law Minzai No. 99 Civil Judgment and Article 28 of the Provisions on Objection and Reconsideration of Execution, if the obligee can exclude the court's enforcement, the following four requirements shall be met at the same time: 1. Before the people's court takes compulsory measures such as seizure, the owner of the mortgage right has signed a legal and valid written housing sales contract with the bankrupt enterprise (including the signing of a mortgage agreement or a commercial housing sales contract) and the purpose of signing the mortgage agreement is to obtain the ownership of real estate. However, if there is a reverse signing of a housing debt-to-debt agreement, the sale of a house is actually a concession and guarantee, the purpose of signing a housing debt-to-debt agreement is to evade debt or malicious collusion to harm the interests of a third party, etc., it does not belong to "signing a legal and effective written housing sales contract". 2. The real estate has been legally possessed before the people's court seizes and other compulsory measures. The legal possession of real estate by the owner of the mortgage shall generally be proved by evidence materials such as the delivered house key, the renovated occupancy or decoration deposit payment certificate, the handover transfer form or the handover acceptance certificate or other handover certification materials, the property service contract and property management fee payment certificate, the water and electricity contract and utilities payment certificate, the external lease contract of the house and the rent collection certificate. 3. The full price of the house has been paid. In view of the particularity of house-to-house debt repayment, the lawyer believes that a stricter review standard should be established for the house-to-house debt right holder in the payment of the house price, that is, the house-to-house debt right holder should have paid the full house price by the house-to-house debt repayment method. At the same time, before the house-to-house debt right holder and the enforced person sign the house-to-to-to-to-to-to-debt repayment agreement, the right should meet the following three conditions: (1) A claim for a mortgage must be a true, legal and valid claim, and a mortgage agreement should be a legally valid agreement. The creditor's right to repay the debt with the house cannot be a fictitious creditor's right, but a creditor's right based on the real creditor's right and debt relationship; the creditor's right to repay the debt with the house cannot be an illegal creditor's right arising from illegal acts such as pornography, drugs, gambling and disturbing social order; the agreement to repay the debt with the house should be a legally effective agreement, which does not conform to the relevant provisions of the civil code on the invalidity or validity of the contract. (2) A mortgage-to-debt claim shall be a maturing and determinate claim. Only due and determined claims can determine the specific claims involved in the mortgage debt and the specific amount of claims and debts, and can avoid the invalidation of the mortgage debt agreement due to the violation of the principle of property law and the rules prohibiting the transfer/pledge. (3) The amount of the debt against the house cannot be lower than the average market price of similar properties in the same lot at the time of the signing of the debt-to-house agreement. If the purpose of signing the house-to-debt agreement between the owner of the house-to-debt and the bankrupt enterprise is to evade the debt or maliciously collude to harm the interests of a third party, then the house price determined by the above-mentioned house-to-debt agreement must be far lower than the actual price of the house, so the lawyer thinks that the house price agreed in the house-to-debt agreement should be limited. 4. Not for their own reasons did not handle the transfer registration. With reference to the provisions of Article 127 of the Nine People's Minutes, as long as the owner of the mortgage debt has submitted the transfer registration materials to the housing registration institution, or made a request to the bankrupt enterprise for the transfer registration and other positive acts, it can be considered that the transfer registration has not been handled for its own reasons. The (II) manager's identification and treatment of the house and claims involved in the right holder of the house-to-house debt. The Supreme People's Court once believed in some cases such as (2016) Supreme Law Minshen No. 3620 (2017) Supreme Law Minzhong No. 354 and (2017) Supreme Law Minzhong No. 356 that the purpose of the debt repayment agreement is to eliminate the creditor's claim. It is not a simple house sale and cannot reflect the true intention of both parties to buy and sell the house. It is an alternative way for the debtor to perform the debt. Before the registration of ownership change is not completed, the right holder only enjoys the right of claim and does not have the right of expectation of property rights, so based on the equality of claims, the right holder of the right to set off the debt should not be given priority over other creditors. However, in practice, the purpose of signing the agreement of house-to-house debt relief is to obtain the ownership of real estate, and they have actually occupied the house involved in the case, and have paid all the house money by means of debt relief except cash payment and bank transfer, which has the nature of quasi-real right and should be protected by the same law as a general buyer, and taking into account the existence of a large number of housing-to-debt situations in judicial practice, in order to avoid causing unnecessary social and livelihood problems and a large number of litigation cases, lawyers believe that the administrator's determination and handling of the claims involved in housing-to-debt rights holders are as follows: 1. If the right holder of the house-to-house debt has the four constituent elements that exclude the court's enforcement, the administrator may determine that the house involved in the house-to-house debt holder does not belong to the assets of the bankrupt enterprise, and assist the house-to-house debt holder in the subsequent normal handling of the net signing procedures and real estate registration procedures for the house in question. However, the manager should be stricter and more cautious about whether the obligee of the house-to-house debt can exclude the constituent elements of the court's enforcement, inform the creditors of the legal responsibility of falsely reporting the creditor's rights, and try to avoid the situation that the bankrupt enterprise signs the house-to-house debt agreement to damage other creditors by evading or maliciously colluding to damage the interests of the third party. 2. If the obligee of the house-to-house debt does not have the four constituent elements at the same time to exclude the court from enforcing the law, the manager may determine that the house involved in the obligee of the house-to-house debt belongs to the assets of the bankrupt enterprise, notify the obligee of the house-to-house debt to supplement the declaration of creditor's rights and supplementary evidence, and confirm the nature and amount of the above-mentioned creditor's rights according to the actual situation of the creditor's rights.

2021-11-29

Viewpoint | Examining employee claims in bankruptcy proceedings

Abstract: Through the inquiry of Weike's first judgment documents, there have been more than 6000 cases of disputes over the confirmation of employees' bankruptcy claims in the past three years. It can be seen that employees' awareness of protecting their own rights and interests has increased significantly. The protection of employees' creditor's rights in the enterprise bankruptcy procedure is not only related to the survival interests of the employees themselves, but also related to the harmony and stability of the whole society. In practice, employees are often in a weak position in labor relations. Before filing for bankruptcy, many bankrupt enterprises have been in arrears with employees' wages for a long time. For the vast majority of employees, wages and other remuneration are the main source of their family support and survival. Therefore, whether it is based on the protection of workers' rights and interests, or based on the smooth development of bankruptcy work, should pay attention to the examination and confirmation of workers' claims, this paper combined with the handling of bankruptcy cases, the scope of workers' claims and confirmation to do a brief analysis and summary, only for your reference. Keywords: enterprise bankruptcy; employee claims; review and confirmation An overview of the scope of 1. employee claims. The relevant point of view to (I) the scope of the employee's claim. Liu Ziping pointed out in the Study on the System of Bankruptcy Claims Confirmation Litigation (Application of the Law, No. 10, 2007) that the subject matter of labor claims confirmation litigation is legal labor claims. An expansive interpretation of "wages" should be adopted. "Economic compensation" should be subdivided into two categories, namely, the economic compensation payable for the termination and termination of the labor contract relationship and the compensation payable for wage arrears. Wang Xinxin and Yang Tao believe in the "Research on the Protection System of Creditor's Rights of Bankrupt Enterprises" ("Research on the Rule of Law", Issue 1, 2013) that the scope of employee's claims should be clarified through judicial interpretation and appropriately expanded. On the other hand, the requests made by employees in the creditor's rights confirmation litigation involve some claims that are not clear enough in legislation. These claims should be considered for inclusion in the scope of employee's claims. Chen Guobin and Chen Hao pointed out in "Interpretation and Reshaping of Priority of Creditor's Rights in Bankrupt Enterprises" (People's Justice, No. 16, 2020) that at present, the judicial practice does not have a unified understanding of the subject and scope of employee's rights protection, and the listing provisions of the bankruptcy law on employee's rights are also difficult to meet the actual needs, resulting in all kinds of creditors in bankruptcy cases reporting their claims in the form of employee's claims, resulting in free-riding phenomenon, the interests of other creditors have been seriously affected by the fact that many claims are based on workers' claims and priority is given to fishing from "public fish ponds" with limited resources. The Liaoning Provincial High Court pointed out in the research report of "Balancing the Interests of Bankrupt Enterprises and Properly Handling Labor Dispute Cases" that the claims of employees in labor disputes caused by bankruptcy have changed from single claims to multiple claims. The demands of employees for their own rights protection are more comprehensive, which is not consistent with the scope of the law. Most of the views discussed above support the appropriate expansion of the scope of employee claims, and the inclusion of claims for which legislation is unclear should be considered. The actual scope of the claims of (II) employees. According to Article 48 of the the People's Republic of China Enterprise Bankruptcy Law (hereinafter referred to as the Enterprise Bankruptcy Law), "...... the wages and medical, disability and pension expenses owed by the debtor to the employee, the basic old-age insurance and basic medical insurance expenses that should be transferred to the employee's personal account, as well as the compensation that should be paid to the employee according to laws and administrative regulations, do not have to be declared, but shall be listed and publicized by the administrator after investigation......." The scope of employee claims mainly includes wages, medical, disability subsidies, pension expenses, as well as social security expenses and compensation that should be included in the employee's personal account. Articles 57 and 58 of the Provisions on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases [Fa Shi (2002) No. 23]: The labor remuneration owed by the debtor to informal workers (including short-term workers) and the fund-raising funds owed to enterprise employees shall be paid off according to the order stipulated in Item (I) of Paragraph 2 of Article 37 of the Enterprise Bankruptcy Law (referring to the trial bankruptcy law), which is actually included in the first order of settlement. Specific as follows: 1. Wages according to article 4 of the "regulations of the state bureau of statistics on the composition of total wages, wages of employees include hourly wages, piece-rate wages, bonuses, allowances and subsidies, overtime wages, wages paid under special circumstances (wages paid according to the hourly wage standard or a certain proportion of the hourly wage standard due to illness, work-related injury, maternity leave, family planning leave, marriage and funeral leave, personal leave, family visit leave, regular leave, work stoppage, implementation of state or social obligations, etc.). Other types of "wages" that do not fall under the provisions of this article: (1) In the case of general arrears of wages before the bankruptcy of the enterprise, the part of the directors, supervisors and senior managers higher than the average wage of the employees of the enterprise may be paid off as ordinary claims. The legal basis is to cite Article 113 of the the People's Republic of China Enterprise Bankruptcy Law and the Supreme People's Court on the application of<中华人民共和国企业破产法>The provisions of article 24 of the (II) on certain issues. (2) The "double wage difference" arising from the failure to sign a written labor contract does not fall within the scope of this article. According to the provisions of Article 3 of the Summary (III) of the Symposium on the Application of Law in Labor Dispute Cases by Chongqing High Court and Other Six Departments, the employer has not concluded a written labor contract or an open-term labor contract with the employee in accordance with the law, and the employee requires The double wage difference paid by the employer is punitive in nature and belongs to compensatory expenses, not labor remuneration, therefore, for the non-signed labor contract two times the wage difference should not be included in the employee's claim to pay off. (3) Wages incurred under special circumstances, such as certification fees. Due to operational needs, enterprises often look for some special certificate holders attached to the enterprise, between the two sides of the useless work facts, the holder did not actually work in the affiliated company, monthly or annual from the affiliated enterprise to collect a certain fee, the fee is reflected in the daily payroll. The author thinks that although this part of the cost is reflected in the enterprise payroll, it is actually a certificate fee and should not be included in the employee's claim for settlement. The reason why the enterprise bankruptcy law lists the workers' creditor's rights as the priority to be paid is that the wages of workers are the remuneration that workers exchange for labor, which is the basic guarantee for the survival of workers, and the licensing fees of the licensed personnel are not the labor consideration in exchange, and are not the important income on which they depend for survival, so it is not appropriate to include such fees in the workers' creditor's rights for settlement. (4) Performance bonus is a kind of incentive salary given to employees by enterprises, and its amount is linked to the performance of employees. In some industries, such as real estate, insurance sales and other enterprises, the amount of performance pay of employees is relatively large, then whether part of the performance pay belongs to the creditor's rights of employees is a question. In practice, judges generally believe that the reason why wages in the bankruptcy law are recognized as having priority is based on the fact that workers pay their own labor value and obtain equal returns, which reflects the protection of vulnerable groups of employees, and the payment of performance bonuses is often based on On the basis of the company's profits, it should not be classified as employee claims with priority. 2. Medical, disability compensation and pension expenses. (1) Medical expenses, generally refers to the loss caused by the failure of the enterprise to participate in medical insurance for the employees, which is caused by the failure of the enterprise to participate in the insurance according to law, and shall be borne by the enterprise itself and included in the employee's creditor's rights for settlement; (2) Disability compensation expenses, commonly include medical, disability, and employment subsidies caused by employees' work-related injuries (except for the part of the fund reimbursement under normal insurance conditions); (3) Pension expenses generally refer to the funeral expenses and one-time death pension of employees not caused by work-related death (under normal insurance conditions, paid by the social security fund). 3. Social security costs According to the provisions of the "the People's Republic of China Social Insurance Law", social insurance premiums are jointly paid by employers and employees, of which the individual payment is included in the personal account, the employer's payment is included in the social pooling account, and the part included in the personal account is included in the employee's claims for statistics. In addition, the enterprise did not participate in unemployment insurance for its employees in accordance with the law, resulting in the inability of employees to enjoy unemployment insurance benefits after unemployment. Therefore, the compensation for unemployment insurance losses caused by unemployment insurance also belongs to social security benefits and should be included in the scope of employee claims. 4. Compensation "Compensation that shall be paid to employees as stipulated by laws and administrative regulations" refers to the economic compensation and compensation for the termination of labor contracts stipulated in the the People's Republic of China Labor Law and the the People's Republic of China Labor Contract Law (hereinafter referred to as the "Labor Contract Law") (only refers to the compensation arising from the illegal termination of the labor contract). 5. Employee claims and housing provident funds advanced by third parties Article 27 of the Minutes of the National Court Bankruptcy Trial Work Conference stipulates that employee claims advanced by third parties shall, in principle, be carried out in accordance with the nature of the employee claims advanced. The housing provident fund owed by the debtor shall be paid off in accordance with the nature of the wages owed by the debtor. 6. Funds raised by employees For employee fund-raising claims that occurred before the implementation of the Enterprise Bankruptcy Law on June 1, 2007, they were determined in accordance with the law at that time and in accordance with the nature of the employee's claims; for employee fund-raising claims that occurred after the implementation of the Enterprise Bankruptcy Law on June 1, 2007, they are generally treated as ordinary claims. Recognition of claims of 2. employees Article 48 of the Enterprise Bankruptcy Law stipulates that employee claims do not have to be declared, and the administrator shall make a list and make it public after investigation. If the employee has any objection to the list, he or she may request the administrator to correct it. If the administrator refuses to make corrections, the employee may file a lawsuit in the people's court. The author mainly analyzes the confirmation of employee claims through the qualitative and amount of employment legal relationship. Confirmation of (I) employment legal relationship 1. Labor relations In accordance with the provisions of Articles 7 and 10 of the Labor Contract Law and Articles 1 and 2 of the Notice on Matters Relating to the Establishment of Labor Relations (No. 12 [2005] of the Ministry of Labor and Social Affairs), the examination of whether there is a labor relationship between a worker and a bankrupt enterprise shall be conducted in a combination of formal examination and substantive examination. (1) Formal review. Under the condition that the information is very complete, it is reviewed from the aspects of labor contract signing, social insurance participation, personal tax payment, attendance records, salary distribution records, company personnel files, employment documents, etc. (2) Substantive examination. Review whether there are actual employment facts, whether the employment time is long-term and stable, whether the work content of the laborer is part of the employer's business, and whether it is restricted by the employer's labor management and rules and regulations. The above substance can be verified from the transcripts of inquiries made by the managers or other workers of the bankrupt enterprise. The author handled a bankruptcy case, in order to find out the actual situation of employees, the production of employee claims registration form, and each employee to make interview transcripts, through the manager's preliminary investigation materials and employee interview transcripts to confirm each other, to confirm the true labor relationship of employees. 2. Labor relations Due to the diversification of employment forms, there are labor employment in many enterprises, especially in real estate development enterprises, where employment is not standardized, and there are many temporary employment and employment of retirees. (1) Temporary employment. Enterprises on a certain stage of a non-company business components of the temporary recruitment of some people for timing or piece-rate employment, due to the short time, flexible employment, that is, the use of the settlement, both sides have no long-term establishment of employment relationship of the intention, generally will not sign a written employment contract, such personnel are generally identified as labor. (2) Recruiting persons who have enjoyed old-age insurance benefits or received pensions in accordance with the law. According to Article 44 of the Labor Contract Law and Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases, the labor relationship of persons who begin to enjoy pension insurance benefits or receive pensions in accordance with the law The legal termination, the employment relationship established by the employer recruiting such personnel is the labor relationship. 3. Other special employment relationships In the related fields of construction and mining enterprises, there are a large number of labor subjects called migrant workers. This kind of personnel has large mobility, uncertain labor cycle and no labor contract. The labor subject is generally a natural person and does not have the qualification of labor subject. According to Article 4 of the Notice on Matters Related to the Establishment of Labor Relations (No. 12, 2005 issued by the Ministry of Labor and Social Affairs), the employer with the qualification of the main body of employment shall bear the main responsibility of employment, and the main responsibility of employment here generally includes the scope of labor remuneration, work injury, etc. Recognition of the amount of claims of (II) employees 1. Wages (1) Confirmation of wage standards. It is mainly confirmed according to the enterprise labor contract, but in practice, many enterprises agree that the salary is the minimum base for paying social insurance or lower, but the actual salary is much higher than the contract agreement. Therefore, the manager also needs to check the salary table in the company's financial documents over the years for verification, and finally confirm the salary standard in combination with the employee's personal statement. The salary standard can also be confirmed by referring to the average salary issued by the audit company in the normal year. If the bankrupt enterprise stops work and stops production, Article 12 of the Interim Provisions on wage payment stipulates that if the unit stops work or stops production within a wage payment cycle due to the reasons of the workers, the employer shall pay the wages of the workers according to the standards stipulated in the labor contract. If more than one wage payment cycle, if the worker provides normal labor, the labor remuneration paid to the worker shall not be lower than the local minimum wage standard; if the worker does not provide normal labor, it shall be handled in accordance with the relevant provisions of the State. Article 58 of the Circular on Several Issues Concerning the Implementation of the the People's Republic of China Labor Law stipulates that enterprises shall pay their living expenses for laid-off workers in accordance with the relevant provisions of the local government, and the living expenses may be lower than the minimum wage standard. If laid-off workers are re-employed, the enterprise shall stop paying their living expenses. With reference to the above provisions, in the case of workers who do not provide normal labor, the bankrupt enterprise shall pay the basic living expenses of the employees. (2) The confirmation of the amount of unpaid wages is mainly through consulting the company's financial documents, making inquiry records to the person in charge of the enterprise and other employees, or consulting the employee petition registration form through the labor department, and combining with the employee's personal statement, confirming the period and amount of unpaid wages of the bankrupt enterprise, and also referring to the audit report of the audit institution on the unpaid wages of the employees. 2. Medical, disability compensation and pension expenses. The common types of such claims include work-related injury insurance benefits, non-work-related injury benefits and medical insurance losses caused by not participating in medical insurance, and the amount of the above-mentioned claims can be determined through the employees' active declaration, the manager's inquiry of the enterprise's financial documents, litigation documents and the personnel director of the enterprise. 3. Social security costs Inquire about the insurance details of the unit in the social security collection agency where the enterprise is located, and notify the collection agency where the enterprise is located to declare the outstanding social security claims if there is any arrears. The outstanding payment details submitted by the social security department will include the total amount of social insurance premiums owed by the unit, and the detailed amount will reflect the amount owed by the individual account. The social security of bankrupt enterprises is generally declared by the social security department, but in practice, for the reorganization of enterprises, this paper proposes to set aside all the social security fees that need to be paid, not declared in advance, according.</中华人民共和国企业破产法>

2021-11-29

Viewpoint | Rule of Law: The Fundamental Path of Restrictions on the Employment of Bad Artists

近年来，一些艺人逃税、吸毒、嫖娼等违法现象屡屡见诸报端，其中不乏知名甚至著名艺人，如2021年轰动一时的郑某、吴某凡、李某迪等，引发社会广泛关注。在大力倡导“德艺双馨”的同时，我国有关部门也对劣迹艺人做出了从业限制等处罚，取得了一定震慑效果。不过，这些措施也引发一些争议，且实施效果一般，未能从根本上遏制高发的艺人劣迹行为现象。笔者认为，在我国正大力加强文化领域立法的背景下，需要从法治化角度进一步思考劣迹艺人从业限制的路径，运用法治思维破解这一难题。   当前劣迹艺人从业限制存在的问题   截止目前，我国有关主管机关针对劣迹艺人所制定的一般性从业限制规范性文件，涉及整个文娱行业，集中于广播电影电视以及互联网等媒体，特别注重从播放端“封杀”劣迹艺人。虽然这些规定“既准又狠”，但在法治视角下，仍至少存在如下问题。   （一）仅以内容与特定主体相关的播放限制做法与我国现行法律法规不符   我国广播电影电视领域法律法规一直采取针对“内容”而非“主体”的播放规制方式。例如，《广播电视管理条例》第32条对“禁播内容”做了列举式表述：“危害国家的统一、主权和领土完整的”“危害国家的安全、荣誉和利益的”“煽动民族分裂，破坏民族团结的”“泄露国家秘密的”“诽谤、侮辱他人的”“宣扬淫秽、迷信或者渲染暴力的”“法律、行政法规规定禁止的其他内容”。《电影产业促进法》第16条及《电影管理条例》第25条也规定了类似的“禁播内容”。也就是说，禁播对象是特定的违禁内容而非与违法主体相关联的内容，而目前有关主管机关的“禁播”“封杀”规定针对的却均是有劣迹艺人参与的内容，至于内容本身是否属于《广播电视管理条例》《电影产业促进法》《电影管理条例》等“禁播内容”则在所不问。例如，广受关注的《国家新闻出版广电总局办公厅关于加强有关广播电视节目、影视剧和网络视听节目制作传播管理的通知》（新广电办发[2014]100号）第一条规定：“各级广播电视播出机构要坚持正确导向，不得邀请有吸毒、嫖娼等违法犯罪行为者参与制作广播电视节目；不得制作、播出以炒作演艺人员、名人明星等的违法犯罪行为为看点、噱头的广播电视节目；暂停播出有吸毒、嫖娼等违法犯罪行为者作为主创人员参与制作的电影、电视剧、各类广播电视节目以及代言的广告节目。”上述规定明显仅以节目与劣迹艺人存在关联性作为禁播标准，与前述法律法规的禁播标准不一致，缺乏法律依据。   （二）未能平衡处理从业限制与工作权的关系   2021年10月12日，因曾吸毒被取消演出的民谣歌手宋冬野发长文为自己抱屈，称当初吸毒也是因为压力大而被诱惑，自己现在只是在做本职工作，不应该被剥夺合理合法工作的权利。宋冬野的言论涉及一个重要的法律问题：如何平衡处理劣迹艺人从业限制与工作权的关系？ 一般来说，工作权既是人们获取生存、生活资料的重要人权，又是保障人们得以参与社会的权利配置。正因如此，工作权作为国际社会公认的人权，体现在诸多国际人权公约之中，也在各国宪法中被普遍予以承认。我国现行宪法第42条规定了劳动权，即工作权。工作权不是纯粹的经济权而同时属于社会权。在自主就业权、公平报酬权、劳动保护权以及不受歧视权等四项具体权能中，与本文所讨论的劣迹艺人从业限制关联度最高的当属不受歧视权。具体来说，在就业歧视中，存在一种较少受关注的前科歧视，即歧视受过违纪、违法和犯罪处罚的劳动者，且仅仅是因为有违纪、违法、犯罪记录而拒绝录用劳动者。我国目前尚无专门的犯罪前科消除法，但在一些法律中已经有保护劳动者不受歧视权的规定，例如《禁毒法》第52条规定：“戒毒人员在入学、就业、享受社会保障等方面不受歧视。有关部门、组织和人员应当在入学、就业、享受社会保障等方面对戒毒人员给予必要的指导和帮助。”第70条还规定了违反第52条的法律责任：“有关单位及其工作人员在入学、就业、享受社会保障等方面歧视戒毒人员的，由教育行政部门、劳动行政部门责令改正；给当事人造成损失的，依法承担赔偿责任。”某些地方性禁毒条例虽然规定了劣迹艺人从业限制，但也只是限于一定期限。例如，2016年4月1日施行的《上海市禁毒条例》第14条规定：“广播影视、文艺团体及相关单位依照国家有关规定，不得邀请因吸毒行为被公安机关查处未满三年或者尚未戒除毒瘾的人员作为主创人员参与制作广播电视节目，或者举办、参与文艺演出；对前述人员作为主创人员参与制作的电影、电视剧、广播电视节目以及代言的商业广告节目，不予播出。” 2018年1月1日施行的《山东省禁毒条例》第31条也有类似规定。   从我国有关主管机关对劣迹艺人从业限制规定来看，基本未提及劣迹艺人（尤其是已接受过相关法律处罚后的劣迹艺人）的工作权保障。例如，上述《通知》中的“不得”以及模糊化的“暂停”等表述，又如《国家广播电视总局办公厅关于进一步加强文艺节目及其人员管理的通知》（广电办发〔2021〕267号）中的“坚决抵制违法失德人员”等表述，均实际上取消了劣迹艺人继续从事本行业的工作机会。此种缺乏平衡从业限制与工作权关系的规定，未能顾及尚有教育挽回余地的大多数劣迹艺人的必要工作权，不利于其在一定禁业期限后回归社会。   （三）缺乏对“劣迹艺人”的准确界定   我国有关主管机关对劣迹艺人从业限制规范性文件中，对何为“艺人”多采取一般描述方式，例如前述国家新闻出版广电总局《通知》中采用了“编剧、导演、演员等广播影视从业人员”的表述，缺乏准确界定，特别是未明确是否包括“经纪人”这一重要主体，给后续处罚造成了困难。同时，对更为重要的何为“劣迹”也缺乏精准界定。前述《通知》仅列举了“吸毒、嫖娼等违法行为”，而中央宣传部2021年9月印发《关于开展文娱领域综合治理工作的通知》则将“劣迹”大为扩展，包括“天价片酬、‘阴阳合同’、偷逃税、违法言行”等违法行为，还包括“低俗信息炒作、政治素养不高、法律意识淡薄、道德观念滑坡、失德言行”等失德行为。由于“艺人”“劣迹行为”缺乏统一的标准，可能导致执法的随意性和选择性，出现背离法治化规制目的的倾向。   （四）对劣迹艺人仅存在“出口”上的规制   我国《营业性演出管理条例》仅设立了演出经纪人的从业资格制，未设立演出行业演艺人员资格制（仅规定个体演艺人员须持有《演员个人营业性演出许可证》）。从业资格制使得我国对演出经纪人的管理基本实现了从“入口”到“出口”的全过程监管，有效提升了监管力度和效果。由于我国尚未设立演艺人员资格制，无法从“入口”做好监管，加大了后期监管难度，尤其使得“出口”面临较大监管压力。近年来艺人劣迹行为现象屡禁不止，与演艺人员资格制的缺失不无关系。   （五）相关规定层次低、表述简单且未处理好他律与自律措施的关系   当前，除仅有极少数条款涉及劣迹艺人从业限制的《营业性演出管理条例》外，现行有效的主管机关关于劣迹艺人从业限制规范性文件多以“通知”形式呈现，例如前述国家新闻出版广电总局2014年与中宣部2021年的《通知》以及文旅部2021年9月下发的《文化和旅游部关于规范演出经纪行为加强演员管理促进演出市场健康有序发展的通知》（文旅市场发〔2021〕101号）。这些“通知”层次低，表述原则、简单，多为应急之策，难以充分实现对劣迹艺人从业限制的法治化。   与此同时，我国一些演艺行业协会制定了若干自律性质的行业规范，例如中国演出行业协会（以下简称“中国演协”）2021年2月5日发布并于3月1日执行的《演出行业演艺人员从业自律管理办法》。关于劣迹艺人从业限制，该《办法》规定了期限不等的“联合抵制制度”，不同于有关主管机关不附期限的“封杀”。如何处理好主管机关的“他律”与行业协会的“自律”，也是一个需要亟待解决的问题。   二、劣迹艺人从业限制的法治化路径建议   （一）严格限定艺人及劣迹行为   艺人，即演艺人员，《营业性演出管理条例》将其称为演员。从所属行业来看，艺人应专职或兼职从属于演出行业，演出包括现场演出和非现场演出（如网上演出），而不包括仅从属于体育行业的名人、明星或仅从属于播音主持行业的播音员、主持人等未兼职从事演出行业工作的人。同时，适当限制可以纳入从业限制范畴的艺人范畴，可以参考现行有关法律法规所采用的“主创人员”这一表述。主创人员即在演出中占据主要角色或发挥主要作用的艺人，一般包括主演、主持人、嘉宾、制片、编剧、导演等人员。另外，对于与主创人员存在经纪法律关系的经纪人也应纳入从业限制人员范围。   关于劣迹行为，建议采用“违反从业规范”这一法律术语。对于可以进行从业限制的行为，建议只将违法行为及严重失德行为纳入而不宜将一般性的违反道德行为纳入。具体可以表述为：“艺人应遵守从业规范，不得有下列行为：（一）故意犯罪并受到刑事处罚的；（二）索取或收取明显高于行业同等岗位一般艺人10倍及以上报酬的；（三）为获得不当利益就同一事项签订两份或多份合同的；（四）违反法律规定逃税的；（五）卖淫或嫖娼的；（六）利用互联网从事色情淫秽表演的；（七）为获得关注而故意低俗炒作，情节严重的；（八）针对公共事务发表严重不当言论，情节严重的；（九）生活腐化，道德沦丧，影响恶劣的；（十）其他违法或严重失德行为。”   （二）妥善处理从业限制与工作权的关系   劣迹艺人从业限制法治化的核心问题是解决好从业限制与工作权的关系。艺人劣迹不同，对其从业限制不同，相应的工作权保障也不同。除实体保障外，还应提供听证、复议、行政诉讼等程序保障。笔者建议，参考前述地方性法规以及中国演协的自律性规定，可将从业限制表述为：“违反从业规范的艺人从事本行业的工作权应依法受到限制”“根据艺人违反从业规范情节轻重及影响后果不同，主管部门可以对其实施1年、3年、5年、10年以及终生等不同期限的行业禁入，法律或行政法规另有规定的除外。”“艺人参与的节目、代言的广告等任何形式内容，所有媒体在其行业禁入期内均不得播放。”“主管部门拟决定对违反从业规范的艺人实施行业禁入的，可以召开听证会；拟决定实施5年及以上行业禁入的，应当召开听证会。”“艺人对主管部门实施的行业禁入不服的，可以向上一级主管机关申请复议或者向实施行业禁入的主管机关所在地人民法院提起行政诉讼。”   （三）可考虑设置艺人从业资格制   如前文所述，《营业性演出管理条例》及配套的《演出经纪人员管理办法》建立了演出经纪人从业资格制。笔者建议，为实现对艺人的全链条管理，可考虑建立艺人从业资格制，解决当前只能在“出口”加以管理的不足。具体来说，可参考《演出经纪人员管理办法》等相关规定，制定《艺人从业资格管理办法》，详细规定“艺人从业资格基本条件”“艺人从业资格考试”“艺人从业资格证书”“艺人从业资格证书年审、补办及更换”“艺人从业资格证书注销”“法律责任”等问题。   （四）以法律或行政法规形式尽快立法   我国宣传文化领域法律法规的立改废释工作正紧锣密鼓进行中，业已取得了不小成绩。当前，以人民为中心，围绕社会关注热点，通过立法解决劣迹艺人从业限制的问题已经迫在眉睫。在立法层级上，建议先行通过行政法规形式予以单独立法，条件成熟后再由全国人大制定法律。由国务院制定行政法规，可解决文娱行业关涉多个主管部门的难题，亦有利于规范标准和执法尺度。对于正在制定中的文化领域法律，应做好指引性条款的设计，做到既不遗漏又可统一。例如，正在征求意见中的《广播电视法》注意到了目前仅因与劣迹艺人相关而对内容限制播放无法可依的问题，于第32条规定：“广播电视节目主创人员因违反相关法律、法规而造成不良社会影响的，国务院广播电视主管部门可以对有关节目的播放予以必要的限制。”按照上述立法协调性原则，建议补充规定：“……必要的限制，法律或行政法规另有规定的，从其规定。”   三、结语   中央宣传部《关于开展文娱领域综合治理工作的通知》可谓再次吹响了清理整治文娱行业的号角。按照《通知》要求，以劣迹艺人从业限制为重要抓手，以存在的主要问题为化解导向，运用法律思维，使用法律工具，走法治化路径，是破解

2021-11-29

Viewpoint | The manifestation and judicial practice of "interest deduction in advance"

Reading Guidance The pre-deduction of interest in private lending is also known as "cut-off interest", "discount loan" and "tap", which means that in private lending, the lender deducts all or part of the interest from the principal in advance. It is unfair for the borrower to pay interest on the loan before using the loan, how does the law stipulate this? Is the judicial decision the result? Legal basis Article 670 of the Civil Code, interest on borrowings may not be deducted in advance from the principal. If the interest is deducted from the principal in advance, the loan shall be returned and the interest shall be calculated according to the actual amount of the loan. Article 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (as amended for the second time in 2020), the amount of the loan stated in the creditor's rights documents such as IOUs, receipts and IOUs is generally recognized as principal. Where interest is deducted from the principal in advance, the people's court shall recognize the amount actually lent as principal. The ruling rule established by the Supreme Court in this regard is that if interest is deducted in advance from the principal, the amount actually lent shall be recognized as the principal and the interest shall be calculated accordingly. Related Cases Case one [Case Brief] On May 3, 2018, the defendant Li Mou offered to borrow 400000 yuan from the plaintiff due to the need of capital operation. The defendant Li Mou issued an iou to the plaintiff on the same day, which stated: "I borrowed 400,000 yuan in cash from a certain bank today, with a loan period of one year and an interest rate of 10000 yuan/month (monthly interest of 10,000 yuan only). According to this, the loan period is one year, from May 3, 2018 to May 2, 2019. Today, the borrower is Li Mou. May 3, 2018." The next day, the plaintiff transferred 400000 yuan to the defendant Li's bank account. Later, due to the need for funds raised by the defendant Li mou, he proposed to borrow another year from the plaintiff, and the plaintiff agreed. Defendant Li then stated behind the aforementioned IOU: "Voluntary extension for one year, from May 2, 2019 to May 2, 2020." On November 5, 2018, the defendant Li mou proposed to borrow 400000 yuan from the plaintiff due to the need of capital turnover. the plaintiff transferred 400000 yuan to the defendant Li mou's bank account on the same day. the defendant issued an iou to the plaintiff the next day, which stated: "today, I borrowed 400,000 yuan (400000 yuan) in cash for one year, from November 6, 2018 to November 5, 2019, with interest of 12,000 yuan per month. According to this, the borrower today: Li mou. November 6, 2018." [Summary of the Decision] This Court believes that the legitimate lending relationship between citizens is protected by law. The relationship between the original and the defendant's claims and debts is clear, and the parties shall fully perform their obligations in accordance with the agreement. For this loan on November 6, 2018. Article 200 of the the People's Republic of China Contract Law stipulates that interest on a loan may not be deducted in advance from the principal. If the interest is deducted from the principal in advance, the loan shall be returned and the interest shall be calculated according to the actual amount of the loan. In this case, the plaintiff actually provided the defendant with a loan of 400000 yuan on November 5, 2018, but the defendant Li paid the plaintiff one-month interest of 12000 yuan in advance on the same day, which was of a nature that the interest was deducted from the principal in advance. Therefore, the plaintiff actually provided the loan principal of 388000 yuan. Because the plaintiff and the defendant Li agreed that the monthly interest rate of the loan was 12000 yuan, which was actually 3%, and the defendant Li had already paid it, the plaintiff did not need to return the interest that had been paid at 3% of the monthly interest rate, and the excess should be deemed as returning the principal of the loan. Since the defendant Li Mou transferred the interest 12000 yuan to the plaintiff WeChat on December 5, 2018, which exceeded the interest 11640 yuan (388000 yuan * 3%) that he should have paid, the excess 360 yuan should be deemed as the repayment of the loan principal, that is, on December 5, 2018, the defendant Li Mou still owed the plaintiff the loan principal 387640 yuan (388000 yuan -360 yuan). For the subsequent borrowing period, the monthly excess of interest is recognized as the repayment of the principal of the loan, and so on. Case II [Brief introduction of the case] Zhang and Song are husband and wife; Tang and Ji are friends. There are a lot of economic exchanges between them and many civil lawsuits are involved. In order to purchase the 1201 room, under the introduction of Ji, Zhang and Song made a loan request to Tang. On March 26, 2019, Tang (lender, mortgagee) and Zhang and Song (Party B as co-borrower and Party C as co-mortgagee) signed the "Personal Loan Mortgage Contract". Party A provides loans to Party B for the purpose of Party B's purchase of a house. Party C knows and agrees to all the terms of the contract and signs the contract voluntarily, voluntarily mortgage the house under Zhang's name and the house to be purchased to Party A as a guarantee for Party B to repay the loan under the contract; The parties agree that the loan amount under the contract is 3500000 yuan, and the remittance handling fee shall be borne by Party B. The actual loan amount shall be subject to the debit note or bank transfer certificate. Party C shall bear the guarantee responsibility if any one of Party B signs the debit note, the above-mentioned loan of 3500000 yuan is remitted from the bank account under Tang's name. Once the transfer is successful, the above-mentioned loan is deemed to have been withdrawn and used by the borrower. The parties agree that the loan period is from March 26, 2019 to April 25, 2019. If the actual loan date does not match the date in the contract, the actual loan date shall prevail, but the total number of loan days will remain unchanged. The loan period is one period on the 10th and the cost is 1% of 1% of the loan amount; the lender's lending method is to pay by online bank transfer, the parties confirm that Party B borrowed a total of 3500000 yuan, the loan for Party B to buy a house, the borrower may not be used for other purposes. [Summary of the Referee] The "Personal Loan Mortgage Contract" signed by the lender Tang and the borrower Zhang and Song is the true intention of both parties. There is no statutory invalidity and it is legal and valid. Both parties should fully perform themselves in accordance with the agreement. Obligations. For the case of borrowing, although Tang to Zhang a transfer remittance of 3500000 yuan, but on the same day and through the season to Tang a prepaid interest of 35000 yuan, according to the the People's Republic of China Contract Law, Article 200: "the interest of the loan shall not be deducted in advance in the principal. Interest deducted in advance in the principal, should be in accordance with the actual amount of borrowing to return the loan and calculate the interest." Also according to Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases (effective since September 1, 2015): "The amount of the loan stated in the debt documents such as IOUs, receipts and IOUs shall be generally recognized as principal. Where interest is deducted from the principal in advance, the people's court shall recognize the amount actually lent as principal." Therefore, the above-mentioned 35000 yuan is beheaded interest, should be deducted from the principal of the loan, after accounting, Tang a actual loan principal of 3465000 yuan. [Comment] The lender's act of deducting all or part of the interest from the principal in advance when providing funds will not be protected by law. In judicial practice, the court calculates the interest according to the amount actually lent by the lender, and does not determine the principal of the loan simply according to the amount stated in the creditor's rights documents such as debit notes. But it is worth noting that the borrower needs to bear the burden of proof for the fact that the beheading interest was paid. form of expression In certain financial lending disputes, there are cases in which a portion of the fee is deducted in advance from the principal of the loan or the borrower is otherwise required to pay a certain fee, mostly in the name of financial advisory fees and advisory service fees. So, will financial advisory fees, advisory service fees, etc. be recognized by the people's court as beheading interest? Case three [Case Brief] Trust Company A and Company B signed the Trust Loan Contract and Debt Repayment Agreement on November 25, 2016, and signed the Financial Advisor Agreement on November 28, 2016 three days later. Trust Company A issued the first loan of 0.7205 billion yuan on November 29, 2016, and Company B paid 40665000 yuan of financial advisor fees to Trust Company A on December 1, 2016. [Summary of the Judgment] The Supreme People's Court held that the time interval between the signing of the Financial Adviser Agreement and the signing of the Trust Loan Contract involved in the case was tight, and that the loan issuance and the payment of the financial adviser's fees were crossed, showing a high degree of involvement with the Trust Loan Contract. In a dispute over a financial loan contract, if the borrower believes that the financial institution charges interest in disguise in the name of service fees, etc., and the relevant fees charged by the financial institution or the person designated by it are unreasonable, the people's court may determine whether the borrower should pay or reduce the relevant fees according to the actual situation of the service provided. In this case, when Company B claims that Trust Company A collects "beheading interest" in disguised form in the name of financial consulting fees, with reference to the provisions of the Notice of the General Office of the National Development and Reform Commission on Issuing the Enforcement Guidelines for the Charging Behavior of Commercial Banks (No. 1408 [2016] of the Development and Reform Office), Trust Company A should provide the remuneration that is consistent with 40.665 million yuan, financial advisory services with targeted, substantive and original content bear the burden of proof. According to the agreement in Article 1 of the Financial Advisory Agreement signed by both parties, Trust Company A shall provide Company B with the following financial advisory services: provide financial advisory scheme and planning and financial consultation for the financial management of Company B; Provide financial consultation, policy and regulation consultation related to industry and industry information for Company B; After Company B selects the financial advisory plan of Trust Company A, relevant work arrangements shall be made, assist Company B to complete related work. As Trust Company A failed to submit evidence to prove that it has provided financial advisory services that meet the above agreed requirements, the Court determined that the 40.665 million yuan advisory fee it collected belongs to interest collected in disguised form. According to the spirit stipulated in Article 200 of the the People's Republic of China Contract Law, it shall be deducted from the loan principal according to law. The corresponding interest, compound interest and penalty interest shall also be re-determined based on the adjusted principal. Case four [Case Brief] On July 13, 2015, Company A and Company B, Company C, Xue Mou and Qi Mou signed the "Cooperation Agreement on" Entrusted Loan of Company B "Project" Agreement stipulating that Company A shall issue entrusted loans to Company B through commercial banks, Company A shall provide consulting services for Company B, and Company B shall pay financial consulting fees, etc. July 13, 2015, September 22, 2015, November 11, 2015, August 26, 2016 B company as a borrower and a bank as a lender signed the "entrusted loan loan loan contract". Company A and Company B signed the "Financial Advisory Service Agreement" on May 4, 2015, agreeing that Company A will provide financial advisory services to Company B. The service period is from the date of signing the agreement to Company B's issuance of a "Confirmation Letter" confirming the termination of the financial advisory service and not exceeding July 31, 2015. The financial consultant fee is 8 million yuan, company B shall pay to the designated account within 5 working days from the date of the seal of the Confirmation. On July 6, 2015, Company B issued a "Confirmation Letter" to Company A, confirming that Company A has completed the financial consulting service as agreed and provided Company B with services such as financing consulting, financing planning and financing transaction structure design. The financial consulting service is terminated. At the same time, it promises to pay 8 million yuan for service to Company A within 5 days from the date of signing this Confirmation. [Summary of the Decision] Regarding the outstanding principal of the loan involved in the case. Company B claims that it and Company A have never formed an agreement on providing financial advisory services, and Company A has never provided any financial advisory services to it. 8 million yuan of the first 60 million yuan loan involved in the case was transferred to Company A on the sixth day of the loan, that is, July 23, 2015, which belongs to the beheading interest collected by Company A, according to Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, "the amount of the loan stated in the debt documents such as IOUs, receipts and IOUs is generally recognized as principal. The 8 million is equivalent to the disguised pre-deduction of interest in the principal, and the people's court shall recognize the amount actually lent as principal", and the 8 million yuan shall not be recognized as principal, so the principal of the loan still owed shall be 92 million yuan. The Supreme People's Court believes that Company A and Company B had signed the Financial Advisory Service Agreement before the loan involved in the case on May 4, 2015, and the agreement agreed on the service content and service fee of 8 million yuan. Company B then issued a "Confirmation Letter" on July 6, 2015, approving that Company A had provided financial advisory services as agreed and promising to pay 8 million yuan service fee within 5 days from the date of confirmation. On the one hand, Company B recognizes the authenticity of the Financial Advisory Service Agreement and the Confirmation Letter, and on the other hand, it has not submitted evidence to prove the claim that 8 million yuan belongs to the beheading interest. According to Article 2 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, "the parties have the responsibility to provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are refuted. If there is no evidence or evidence is not sufficient to prove the party's claim of fact, the party with the burden of proof shall bear the adverse consequences", and Company B shall bear the legal consequences of the failure of the proof, so the defense claim that the amount of principal owed shall be deducted from the 8 million is not supported. [Comment] From the above cases, it can be seen that if the financial advisory fee is collected by the lender or the lender fails to prove that it has provided substantive services, then the financial advisory fee will be recognized as beheading interest in the judicial decision. However, it is worth noting that if the borrower does not have evidence or the evidence is not sufficient to prove its factual claim, and recognizes the authenticity of the Financial Advisory Service Agreement, etc., it will bear the legal consequences of not being able to prove it. In order to protect their rights and interests, when it comes to financial advisory fees and loan interest, the lender of funds needs to consider the following aspects: First, the contractual amount of the loan is consistent with the actual amount of the loan, to avoid inconsistencies between the two; Second, if it involves financial advisory fees, consulting fees and other related fees, a third party other than the lender may enter into a relevant service agreement with the borrower and provide real and effective advisory services; Third, it is not advisable to charge interest for a relatively short period of time (the day of lending or the next day) after lending; Fourth, lenders need to be careful to retain evidence of the provision of services such as financial advisors, such as relevant service agreements, service confirmations, etc.

2021-11-29